yahaya ramadhani the adminstrator of the estate of the late said abdallah vs siwajui juma and 1 others 2021 tzhclandd 679 18 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 609 OF 2020 YAHAYA RAMADHANI (The Administrator of the Estate of the Late Said Abdallah) APPLICANT VERSUS SIWAJUI JUMA RESPONDENT HAMIS OMARY RAJABU ^.......1;^|,.....tl....2ND RESPONDENT SISTI ATANASI RESPONDENT HAMIS NASORO 4™ RESPONDENT JAMES MKUDE NGUBI .T. 5™ RESPONDENT ALEX KIKWAJU 6™ RESPONDENT ATHANASI YUSTIN 7™ RESPONDENT DARU DANYERI 8^" RESPONDENT RAISI SAIMONI >,s 9™ RESPONDENT CLEMENCE ALEX KIWAJU 10™ RESPONDENT ABIASI KAUONJE 11™ RESPONDENT GODWIN SAIDI 12™ RESPONDENT JUSTIN MAIKO ......% 13™ RESPONDENT JOHN KOJONGO 14™ RESPONDENT MOHAMED R. SIN6aN0 15^" RESPONDENT RULING Date oflast Order: 22/03/2021 Date ofRuling: 18/06/2021 MANGO; J; The applicant seeks leave to appeal to the Court of Appeal of Tanzania against the decision of this Court delivered by Hon. Maghimbi J on 10^*^ December 2019. The application is supported by an affidavit sworn by the Applicant The Respondents contest the application, they filed a counter affidavit and a notice of preliminary objection. The notice of preliminary objection contains three points of objection as follows: 1. That the application is bad in law and incurabl^efeclive for being preferred under no specific and irrelevant provision of the law. 2. That the application is bad in law and Incurably defective for being supported by an affidavit that contravenes mandatory provision of section 4 of the Oaths and Statutory Declarations Act[Cap. 34 R. E. 2019]. 3. That, the application is premature and incurably defective for contravening mandatory provision of Rule 46(1} of Tanzania fourt of Appeal Rules, GN No. 344 of 2019. That, the application is bad in law and incurably defective for |being supported by defective affidavit that bears defective introductory and verification clause. The applicant had no legal representation while the respondents had legal services of Mr. Daniel Oduor, learned advocate. On 9^^ February 2021 this Court ordered the preliminary objection to be argued by way of written submissions. In his submission in support of the preliminary objections the Respondents counsel argued that, the applicant cited a non-existing law as the enabling provision. He reproduced the enabiing provision as it appears in the chamber summons to be Ruie 47(1) of the Land Disputes Courts Act Chapter 216...and argued that the cited law does not exist thus, it means the application was preferred under no specific enabling provision and the court has not been properly moved. Citing the case of Joseph John versus Chandrankant Shamji Shah Civil Application No. 7 of 2001, Court of Appeal of Tanzania at Arusha and the case of Sea Saigon Shipping Limited Versus Mohamed Enterprises(T) Limited, Civil Appeal No. 37 of 2005, Court of Appeal of Tanzania at Dar es salaam he argued that thf application Is incompetent as the court will not have been properly moved. 'W On the second limb of objection |e submitted|||e^affidavit is defective as the applicant did not indicate his religidt in the introductory part of the affidavit. He submitted that, the applicant ougnt to nave indicated his faith and attest according to his faith. He cited the case of Hussein Ally and 13 others versus Tanzania Hides and skin and 3 others, Misc. Labour Application No. 503 of 2019, High.Court of United Republic of Tanzania, Labour Division at Dar es salaam in which tlie requirement to indicate faith in an affidavit was amplified. The learned counsefc^aisd^ubmitted on the competency of the application. In this he argued that fhe application was preferred prematurely prior to filing notice of Appeal to the Court of Appeal of Tanzania. He argued that failure of the Applicant to file notice of Appeal contravenes the provisions of Ruie 46(1) of the Tanzania Court of Appeal Rules, 2009 and makes the application incompetent before this Court. In his reply submission the applicant argued that, he preferred the application under section 47(1) of the Land Disputes Act [Cap. 216 R. E. 2019] and not Rule 47(1) as argued by the respondent's counsel. He argued further that non citation and wrong citation of enabling provision in an application is not fatal as it can be cured under the overriding objective principle. On the issue of absence of notice of appeal, he argued thjt, the notice of Appeal has been lodge before filing this application. In his brief rejoinder, respondent's counsel reltera bmrssiorui I have considered submissions by both parties and coQTt,|dcbrc«will start first with the issue of notice of appeal because it is well established that absence of notice of appeal means there is no appeal. ■ Rule 83(1) of the Tanzania Court of Appeal Rules requires any person who desires to appeal to the Court of Appeal to lodge a written .nptice in duplicajg, with the Registrar of the High Court. Sub Rule (2)omule 83 of the Tanzaniah Court of Appeal Rules provide time limit for lodging the notice of^appeal to be 30 days from the date of the decision subject of the'appeai. % From the submissions it is notidisputed that Rule 46 (1) of Tanzania Court of Appeal Rules requires a notice of Appeal to be lodged first before the leave to appeal can be sought. In the Application at hand the applicant avers under paragraph 5 of his affidavit that he has lodged a notice of Appeal and served the same to the respondents. He maintains such position even in his written submission. The Court could not find any copy of the alleged notice of appeal in the application for leave and the respondents counsel argued that he was not served with any notice of appeal. Before delivering Its ruling, the Court inquired from the applicant on the existence of the said notice but the applicant was unable to produce the alleged notice which allegedly was filed to the Court. In such circumstances, I find the Application to have been preferred prematurely before lodging the notice of Appeal. The application is hereby struck out for being incompetent before this Court. Given circumstances in this application, I award no costs. X D. ...... MA JUDGE ^4ND 8/06/202