Lightness Damiani and Others vs Said Kasim Chageka (Civil Application No.450/17 of 2020) [2022] TZCA 3063 (18 November 2022)

LIGHTNESS DAMIANI & 6 OTHERS vs SAID KASIM CHAGEKA COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: 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, dated 21 st 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 were respondents in Land Appeal No. 40 of 2019 before the High Court (Land Division) at Dar es Salaam, where the respondent challenged the DLHT’s decision in Land Application No. 31 of 2014, which had declared the applicants lawful owners of about 100 acres in Mlamleni village, Mkuranga District. The High Court overturned the DLHT’s decision, holding that the applicants failed to prove their claim and that the land belonged to the late Kassim Chegeka, whose estate was yet to be administered; the respondent was appointed administrator of the estate. Aggrieved, the applicants sought leave to appeal to the Court of Appeal under section 5(1)(c) of the Appellate Jurisdiction Act and relevant rules. Their application, supported by a joint affidavit, raised three grounds: (1) that one applicant died during proceedings but the administrator was not heard, (2) that the respondent’s advocate, Mohamed, had no valid practicing license, and (3) that the High Court determined the appeal without proper regard to their submissions and without considering the time limitation to sue. 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 to: (i) British Broadcasting Corporation vs Erick Sikujua Ng’amaryo. Civil Application No. 133 of 2004(unreported) (ii) (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.