20170522 TZHC Arusha2

OkY I 4,NAL ·~

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DISTRICT REGISTRY OF ARUSHA ·

ATARUSHA MISC. CIVIL APPLICATION NO. 53 OF 2016 (Originating from Land Appeal No. 16/2015✓ originally from District Land and Housing Tribunal,Application No. 16/2014) ZACHARIA LAIZER ...... ■■■■■■ i■■■■■■■ ••••••••••••••••••••••••••••••••APPLICANT

I

VERSUS BRAYSON ESAU BARANG ......................................... RESPONDENT

RULING DR. OPIYO, J The applicant ZACHARIA LAIZER filed an application before this court made under the provisions of section 47 (1), (2) and (3) of the Land Disputes Courts Act, Act No. 2/2002, section 5 (1) (c) of the Appellate Jurisdiction Act, Cap. 141 R.E 2002 and Rules 45 (a) of the Court of Appeal Rules, 2009, praying for the following orders; (a) That, this Honourable Court be pleased to grant leave to the Applicant to appeal to appeal the Court of Appeal against the whole of the decision :in Land Appeal No. 16/2015 delivered on 13th August, 2015. (b) That the. costs of this application be granted to the applicant. ( c) That, any other relief ~hat this court may deem fit to grant. . .. This application is supported by the affidavit of the applicant's counsel QAMARA A. PITTR. Before thil court, the applicant was represented by ! Qamara learned Advocate while the respondent appeared in person and I unrepresented. This court ordered the hearing of this application to be conducted by way of written submissions whereby the applicant was ordered to file his submission by 10/3/2017, the respondent to file reply submission by 24/3/2017 and !rejoinder if any to be filed by 31/3/2017. I Both parties filed their submissions accordingly. Arguing the application, the applicant's counsel submitted that, the grounds in support of application are contained in the Affidavit supporting

the application whi!h he prayed to be adopted as part of his I submission. He further submitted that, the first ground which requires attention of the Court of AppJa1 had been stated in paragraph 5 of the applicant's Affidavit that the dJcision was reached without any evidential l proof before the trial Court by the respondent, BraysonEsau Barang. He stated that the Applicant befote the trial tribunal produced Exhibit "Al" (sale agreement). Thus, he suJmitted that it was clearly stated in appeal submission before the High !court that the respondent who claims ownership of land in dispute bid not put any evidence before the trial ! Tribunal contrary to section 119 of the Law of Evidence Act, [Cap. 6 R.E I 2002]. There is a principle of law of evidence that the one who alleges ownership must prove the ow~ership and disprove non ownership of the other party. He stated that !findings of the court raise legal issues whether the court can go onl believing on the ownership of property (land) without proof from the berson who alleges ownership while he is I not in ownership of said land. To him, that issue needs to be determined 2 by the Court bf Appeal.Thus, p'rayed that the leave be granted to appeal to the Court of Appeal with costs to the respondent. I j I He further submitted that, the ,second point which ~equires the attention of the Court of Appeal is $tated at paragraph 6 of

the Affidavit ! supporting the application that the finding of the High Court that l . ''appellant failed to call a witn~ss who has to establish that he has been I in occupation of the land Jince 1984.. '~ He stated that, it is an I established principle of the corurt that in deciding the ·matter, it has to I look at weight of the evidenc~ and not number of witness and referred this court to the case of Hem~di Said v Mohamed Mbilu(1984) TLR 113.He further stated that, t~e above finding raises legal and factual I issues which need further d¢termination with court of appeal as to I whether the court can decide in favour of the respondent based on the reason that some witnesses, oh the opinion of the court were not called before the trial court to testify. . I The third point he put forward ,that it requires the attention of the Court of Appeal whether the appella ,. t court can decide a matter in favour of the respondent without anal~zing evidence and testimonies of the I I witnesses before the trial court, for he contends that the decision of the II • appellate court on issue of duration of the stay in the disputed land is I . not backed by evidence on rec9rd. I !I i He further submitted that, thkfourth point of law which requires the attention of the Court of Appeal is stated at paragraph 9, 10, 11 and 12 of the affidavit whether the appellant court can be said to have

finally 3 determined the rights of parties by confirming the decisions of the court without detenmining some grounds of appeal. He said the court went on deciding and I, confirming the decision I of the tribunal without analyzing nd 2 , 3rd ,4th and 5th grounds of ~ppeal separately and reaching a fair and I i just decision. He thus stated t~at, the findings in the fourth point raises legal issues which need to ~e determined by the Court of Appeal, I particularly the issues raised ;at paragraphs 9, 10, 11 and 12 of the I ' ,, affidavit. The fifth point of law which requires the attention of the Court of Appeal whether the section 59( 1) ~f the law of marriage Act covers the ! requirement ·of the spousal iconsent of a person who had already i deserted one another. He saiq it was clearly stated that the mother of the respondent had already d~serted her husband Essau Barang by the time he sold the land to the applicant. He submitted that, the above points of law and facts sufficiently demonstrate that there are prima facie grounds of appeal meriting an appeal to the Court of Appeal and the intended appeal has merits. To support his i argument, he ~ited the case ofWambele Mtumwa ' Chamte vs Asha Juma, tivil Application No 45 of 1999, CAT I (unreported)andGaudensia r-,zungu vs I.D.M Mzumbe as quoted by Nyerere, J. in her ruling inMisci Civil Application No. 90 of 2008 between Brayson

Nina versus Mi.chale Hayshi(Unreported). Therefore, I • 9 prayed this application be gr nted with costs and this court to certify that there are legal issues fit for determination by Court of Appeal. 4 ~@, .: Opposing the! application, the ~espondent prayed his Counter Affidavit be I adopted to form part in her sybmission. He further submitted that, the ' ! applicant's cdunsel : in his submission ., is attacking the evidence produced during the trial at the District Land and Housing Tribunal at Karatu and ' ' analyzing jud9ment of the Hig~ Court as if this court has such powers to re-open the rhatter and decid~ on the merit of this case. He contended i 1 that, the applicant's counsel is supposed to address this court on which points of law ,and facts by sub~tantiating those points as to how they are ;, points of law and fact fit to be dealt by Court of Appeal as required by law and pradtice of this cou1. He referred this court to the case of Simon Kabaka Daniel Vsl Mwita Marwa Nyang'anyiand 11 I others (1989) TLR 64 (HC) w~ere it was stated that; I !I, !• ''In a,n application for leave to appeal to the court of I i appeal the applicant fJust demonstrate that there is a i point of law involvedifor the attention of the court of I Appe~I..." ' He further s~ated that, in this application the applicant's counsel is complaining that, the evidence! was not considered • in the trial

tribunal and the High: Court has gone bn the same spirit by concurring with the ' i trial chairman's decision. He stated that, although in granting leave to appeal to Court of Appeal, it requires point of law and facts and it is only i the high court which has such !powers to identify in the first instance and I cited the case of Wambele Mtumwa Chamte Vs. Asha Juma, Civil ! application N,o. 45 of 1999 Cpurt of Appeal of Tanzania (unreported) 5 which laid down some grounds as guiding circumstances to grant leave to appeal to the court of appeal of Tanzania, where it was stated that; "..... unfortunately, it is not provided what factors are to be taken into account when considering whether or not to grant leave to appeal to this Court. However, it is I obvious that leave will only l:)e granted if the intended ' appeal has some merits wh~ther factual or legal" He contended that, this court being guided by the principle above quoted, the attached list to the Affidavit of the Applicant as "PA-4" are neither factual or legal but a mere complaint about the evidence which are in the record and the same V{as properly analyzed by the trial ! Tribunal and the appellate Court. Referring to the case of Bushangila Ng'onga Vs. Manyanda Maig (2002) TLR 335; he submitted that the two courts below has considered th(= evidence, where the applicant did not bring any material witness in support of

his evidence to prove the authenticityof the document which he claims to be sale agreement. Thus, the powers of Court of Appeal as appellate court is reluctant to ' entertain the appeal if there is no imisapprehension or misdirection of evidence as stated in the dase of Mushangila Ngo'nga (supra).Therefore, he submitted that the applicant has failed to demonstrate on which points of law; or factual need consideration ofthe Court of Appeal of Tanzania hence prayed this application be dismissed with costs. I 6 u I have considered the submissio~ of both parties and gone through the applicant's counsel affidavit and respondent's counter affidavit. The applicant's counsel in his submistion has discussed at length the points r which are intended to be argued: to the co'urt of Appeal to the extent of I ' going to the substance of the intended appeal. Be as it may, this court ! has noted the points which aref intended .to be addressed before the Court of Appeal by the applica~t as contained in the affidavit of the applicant's counsel; hence the !issue before this court is to consider whether this application has me~its. In order for this court to grant an \ application for leave to appeal: to the Court of Appeal, it must be I ' satisfied that there is prima fapie grounds meriting an appeal to the Court of Appea'I as stated in th~ case of Gauden~ia Mzungu vs. The I.D.M Mzumbe (supra).

It was also stated in the case of Sango Bay Estates Ltd and Others vs. l,Dresdner Bank A.G [1971] 1 EA 17 I that; I "leave to appeal from Jn order in civil proceedings will ji normally be granted w!Jere prima facie it appears that I there are grounds of appeal which merit serious Judicial consideration. " l 1 I 11 According to the applicant's cf unsel affidavit and his submission in support of the application, the /points which are intended to be argued before the Court of Appeal is ~ased on factual and legal issues as the applicant complains about eyidence that there was no sufficient I I evidence to support the court tp decide in respondent's favour and that ! various principles of law wer~, not applied by the appellate court in I deciding in favour of the respondent as stated in paragraphs 5, 6, 7, 8, I i Ir 7 I r 1 I \ I! 9, 10, 11 and 12 of the applicant's/ counsel affidavit. By considering them, I am satisfied that there are contentious issues in the intended II appeal to the Court of Appeal whi4h justify this court to grant the i application. I therefore grant leave t9, the applicant to file appeal to the Court of Appeal. No order as to costs.! Order accordingly. DR. M. QPIYO,

JUDGE 22/5/,017 I 8

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