| dc.description | LIGHTNESS DAMIANI AND 6 OTHERS VS. SAID KASIM CHAGEKA COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (LILA, J.A, SEHEL, J.A, MWAMPASHI, J.A)
CIVIL APPLICATION NO.450/17 OF 2020.
(Arising from the Ruling of the High Court of Tanzania (land Division) at Dar es salaam, Makani J dated 21st September 2020 in misc. Land Application No.339 of 2020).
Civil Procedure and practice – Application for leave to appeal – whether grounds for granting leave were adhered to.
The applicants herein were respondents in Land Appeal No. 40 of 2019 in the High Court of Tanzania (Land Division) sitting at Dar es Salaam. In that appeal, the respondent herein, had challenged the decision of the District Land and Housing Tribunal for Mkuranga (henceforth the DLHT or the Tribunal) which had, in Land Application No. 31 of 2014, among other orders, declared the applicants to be the lawful .1st , 2nd , 3rd , 4th , 5th and 6th owners of the suit land located at Mlamleni village, Kimbangulile Hamlet within Mkuranga District in Coast Region.
Upon a hearing, the High Court (Maghimbi, 1) overturned the DLHT decision and held that the applicants had failed to prove their claim and declared that the land measuring about 100 acres (the suit land) belonged to the late Kassim Chegeka whose estate was yet to be administered with the effect that neither of the rightful heirs or relatives had good title to pass to other persons from whom they claimed to have bought pieces of land. It is worth noting here that the respondent applied and was appointed the administrator of the estate of the late Kassim Chegeka.
The applicants were aggrieved and were inclined to appeal to the Court against the High Court. Alive of the requirement to seek and obtain leave to appeal before lodging the appeal to the Court, they preferred an application for leave in the High Court, which was unsuccessful. They are before this Court on a second bite preferred under section 5(l)(c) of the Appellate Jurisdiction Act, Cap. 141 R. E. 2019 (the AJA), Rule 45 and other enabling provisions of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by an affidavit jointly sworn by the applicants. Before the High Court, as would be gleaned from the resultant ruling, the applicants advanced three grounds in moving the High Court to grant them leave to appeal to the Court. Page two of that ruling outlined them as follows: That, one of applicants died in the course of the proceedings but the administrator was not given an opportunity to be heard though the court was duly informed. 2. That, the advocate who was representing the respondent one Mohamed had no valid practicing license but acted for the respondent although the court was duly notified, and 3. That, the appeal was determined without paying due regard to the applicants' submission and lastly that time limitation to sue was not considered.
HELD;
(I) In application for leave to appeal the grounds need not only be grounds of appeal but they may be arguable issues which attract the courts attention for having them put in proper legal perspectives.
(II) In application for leave to appeal it is not the duty of the judge to determine whether or not they have merit. By doing that it is to overstep into the mandate of the court to which the appeal lies.
Application granted.
Statutory provisions referred to
(i) The Appellate Jurisdiction Act, Cap. 141 R.E 2019
(ii) Court of Appeal Rules, 2009
Case law referred.
• British Broadcasting Corporation vs Erick Sikujua Ng’amaryo. Civil Application No. 133 of 2004(unreported)
• The Regional Manager – TANROADS Lindi vs DB Shapriya and Company Ltd, Civil Application No.29 of 2012(Unreported)
Mr. Octavianus Mushuma Learned Advocate for Respondent.
Applicants, appeared in person. | en_US |
