yunus juma lilingani vs hiza abas sheshe 2022 tzhclandd 12675 8 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 712 OF 2022 YUNUS JUMA LILINGANI..................................................... APPLICANT VERSUS HIZA ABASI SHESHE............................................................ RESPONDENT RULING Date of last 0rder:01/12/2022 Date of Ruling: 08/12/2022 K. D, MHINA, J, By a chamber summons taken under section 47 (1) and (2) of the Land Disputes' Courts Act No.2, Cap 216 R:E 2019 ("the LDCA"), the applicant, Yunus Juma Lilingani instituted this application against the respondent, Hiza Abasi Sheshe. The applicant, inter-alia, is seeking the following orders: - i. That this Court be pleased to grant leave for the applicant to appeal to the Court ofAppeal against the judgment and decree of this court in Misc. Land Appeal No 23 of2022 delivered on 23 May 2022; ii. That this Court be pleased to certify that there is a point of law involved which needs to be determined by the Court ofAppeal Hi. Costs of this application be provided. i iv. Any other order or relief as it deems fit andjust. In response to the application, the respondent countered it through a preliminary objection predicated on the following grounds i. That the application is bad in law for containing an omnibus application. ii. That the application is bad in law for non-citation of enabling the provision of the law to move the court to certify the point of law worthy of determination by the Court ofAppeal. At the hearing of the application, the applicant was represented by Ms. Ashura Mansoor, a learned advocate, and the respondent was represented by Mr. Mussa Burhan, also a learned advocate. Mr. Burhan's argument on the first limb of preliminary objection was to the effect that the law does not allow an applicant to pray for leave to appeal and certification on the point of law within the same application. He further argued that two prayers could not be contained in the same chamber summons. To bolster his argument, he cited Mathew Mlay v. Rashid Majid Kasenga, Civil Application No 354/17 of 2020 (TanZlii) at page 6, where the Court of Appeal held that; 'Apart from the foregoing, and in order to ward off misconceptions, we wish to seize this opportunity to 2 reiterate the position of the law regarding applications for leave and for a certificate on the point of law. The law does not permit the riding of these two horses simultaneously as some parties tend to do " He further submitted that the application is against the decision which was originated from the Ward Tribunal; the applicant was supposed to apply for a certificate on points of law only. To cement his argument, he cited Dyat Philemon Ole Saibul v. Solomon Ole Saibul (2000) TLR 219, where the Court of Appeal observed that once a certificate on the point of law has been issued, leave to appeal is not necessary as it deemed to have been included in the certificate. Mr. Burhan submitted that leave is requisite when the matter starts at the District Land and Housing Tribunal as provided under section 47 (2) of the LDCA, while a certificate on the point of law is a requisite when the matter starts at the Ward Tribunal. He concluded on the remedy by citing Mariam Abdallah v. Adolph Mwakanjuki, Misc. Application No. 116 of 2021 (HC-Land Division-TanZlii), and submitted that the in the cited case struck out the application for being omnibus. 3 On the second limb of the objection, Mr. Burhan submitted that the applicant did not cite the relevant enabling provision for this Court to certify the points of law to the Court of Appeal. He argued that the applicable provision of law which was not cited was section 47 (3) of the LDCA. In response, Ms. Mansoor advocate started to argue on the second limb of objection by contending that it was a human error when they cited section 47 (1) and (2) of the LDCA. Further, she cited two cases to bolster her argument. One Samwel Munsiro v. Chacha Mwikwabe, Civil Application No. 539/08 of 2019 (TanZlii), where the Court of Appeal held that; ”... where an applicant omits to cite any specific provision of the law or cites a wrong provision, but the jurisdiction to grant the order sought exists, the irregularity or omission can be ignored and the court may order that the correct law be inserted"'. Second, she cited Dangote Cement Ltd v. NSK Oil and Gas Ltd, Misc. Commercial Cause No. 05 of 2020 (HC- Commercial Division- 4 TanZlii), where it was insisted that the courts to focus on substantive justice as an overriding objective. On the first limb of the objection, she responded by citing section 47 (2) of the LDCA, which provides that a person may, with leave of the High Court or Court of Appeal may, appeal to the Court of Appeal. She further stated that the matter originated from the Ward tribunal, and the High Court sat as an appellate court; therefore, section 47 (2) of the LDCA regarding leave is relevant. Further, section 47 (3) of the LDCA certificate on points of law is also relevant because the matter originated from the Ward Tribunal. Therefore, the prayers in the chamber summons are interrelated, and no law prohibits interrelated prayers from being combined; hence the application is not an omnibus one. To bolster her argument, she cited Pride Tanzania Ltd v. Mwanzani Kasatu Kasamia, Misc. Commercial Cause No. 230 of 2015 (HC- Commercial Division) where it held that; ".the combination of two applications is not bad in law. I know no law that forbids such a course" 5 On the remedy, she cited the cases of Mariam Abdallah (Supra), where the court invoked an overriding objection and proceeded with the relevant prayer in the application. In conclusion, she submitted that the two prayers in that one application do not cause any prejudice to the respondents. In a brief rejoinder, Mr. Burhan submitted that the proper position was enunciated in the cited decision of the Court of Appeal in Mathew Mlay (Supra) that omnibus applications are not allowed. Having dispassionately heard the arguments from the learned counsel for both parties, the issue for determination is whether the application is omnibus and, if yes, what the reliefs are. In deliberation, the entry point is the cited case of Pride Tanzania Ltd (Supra), where it was held that the combination of two applications is not bad in law. I know no law that forbids such a course. Therefore, in principle, no law prohibits combining more than one prayer in the chamber summons. But there are some limitations on that permission, such that the prayers combined must be interrelated or interlinked. Otherwise, the 6 application which contains incompatible combined prayers is liable to be termed as an omnibus, see Mohamed Salimin v. Jumanne Omary Mapesa, Civil Application No. 103 of 2014, CAT -Dodoma (unreported) Flowing from above, the test for an omnibus application to stand is if the prayers in the chamber summons are interrelated or interlinked. As I indicated earlier, the prayers are; one, leave to appeal, and two, certification on point of law. That test is not a new phenomenon in our jurisdiction as the court of appeal already pronounced the position of law in the cited case of Mathew Mlay (Supra), where it was held that; '"Apart from the foregoing, and in order to ward off misconceptions, we wish to seize this opportunity to reiterate the position of the iaw regarding applications for leave and for a certificate on the point of iaw. The iaw does not permit the riding of these two horses simultaneously as some parties tend to do...................................................................................... ...................................... Because once a certificate has been issued leave to appeal is not necessary" 7 From the above decision, it is; therefore, the two prayers cannot be lumped together in one application, and thus the application is omnibus. In my view, the applicant should have filed the application with prayer for the certificate on point of law only. On the remedy, the counsel had rival arguments, while Mr. Burhan submitted that the remedy is to strike out; Ms. Mansoor contended that the remedy is to proceed with the relevant prayer. On this, the Court of Appeal has already decided in several cases, such as in the cited case Mohamed Salimin (Supra), where it was held that; ,z XI/7 omnibus application renders the Application incompetent and liable to be struck out." Therefore, the 1st limb of the preliminary is hereby successful raised and this court upheld the same by holding this application is incompetent for being omnibus. Further, since the first limb of objection dispose the application, I don't see the reason to deliberate and determine the second limb of objection 8 Consequently, the application is accordingly strike it out with 9