Elizabeth Losujaki vs Agness Losujaki & Another (Civil Appeal No. 99 of 2016) [2017] TZCA 1210 (14 December 2017)

'l"t:1' IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA - (CORAM: MJASIRI, J.A., MWARIJA, J.A., And MWANGESI, J.A.) CIVIL APPEAL NO. 99 OF 2016 1 ELIZABETH LOSUJAKI ........................ · ........................................ APPELLANT ' VERSUS AGNESS LOSUJAKI ............................................................ 1ST RESPONDENT JUSTINE JOHN LEIYAN ..................................................... 2ND RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha} 14 th & 15th Dec. 2017 'MWARIJA. J.A.: (Massengi, J.) Dated 24 th day of September, 2014 in Land Appeal No. 18 of 2012 RULING OF THE COURT The appellant, Elizabeth Losujaki was aggrieved by the decision of the High Court of Tanzania, Arusha sitting as a land court in Land Appeal No. 18 of 2012. She had filed an application in the District Land and Housing Tribunal of Arusha (the Tribunal) claiming for a piece of land measuring two acres. In its decision dated 20/9/2011, the Tribunal declared her the lawful owner of the suit land. The respondents, Agness Losujaki and Justine John Leiyan, were aggrieved by the decision of the Tribunal. They successfully appealed to the 1

High Court vide the Land Appeal, which is the subject matter of this appeal. In the impugned decision, the High Court allowed the respondents' appeal thereby reversing the decision of the Tribunal. When the appeal was called on for hearing on 13/12/2017, the appellant was represented by Mr. Duncan Oola, learned counsel while the respondents had the services of Mr. Fadhili Nangawe, learned counsel. Before the appeal could proceed to hearing, Mr. Nangawe sought and obtained the leave of the Court to raise informally, a preliminary point of objection. His objection was to the effect that the appeal is incompetent for want of the requisite leave to appeal. He argued that the leave, which was granted by the High Court on 2/4/2015, is invalid because the same was applied for and granted under inapplicable provisions of the law that is, S. 5 (1) (c) of the Appellate Jurisdiction Act [Cap 141 R.E. 2002] (the AJA) and Rule 45(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He submitted that the provision under which leave to appeal should have been granted is S. 47(1) of the land Disputes Courts Act [Cap 216 R.E. 2002] as amended by Act No. 2 of 2010 (the Act) Relying on the cases of Tumsifu Anasi Maresi v. Luhende Jumanne Selemani & Another, TBR Civil Application No. 184/11 of 2017 and Nuru Omary Ligalwike v. Kipwele Ndunguru, Civil Application No. 2

I ,, . t ' 42 of 2015 (both unreported), the learned counsel contended that the powers of the High Court, of granting leave to appeal in land cases is derived from S. 47(1) of the Act, not otherwise. He submitted therefore that in the circumstances, the appeal should be struck out for being incompetent. On his part, Mr. Oola readily conceded that the appeal is incompetent on the ground that no valid leave to appeal has been granted by the High Court. As submitted by Mr. Nangawe and conceded by the appellant's counsel, the requirement of leave to appeal to this Court against the decisions of the High Court which originate from land cases is provided for under S. 47 (1) of the Act. That provision vests the High Court with the power of entertaining such an application for leave to appeal to the Court by a party who has been aggrieved by the decision of the High Court given in the exercise of its original, appellate or revisional jurisdiction. That provision states as follows:- "47 (1) Any person who is aggrieved by the decision of the High Court in the exercise of its original, revisional or appellate jurisdiction, may. with the leave from the High Court appeal to the Court of 3

Appeal in accordance with the Appellate Jurisdiction Act 1979." In this case, as pointed out above, leave was applied for under S. 5(1) (c) bf the AJA. In the circumstances, we agree with the learned counsel for the parties that the granted leave is for that reason, invalid. In the case of Tumsifu Anasi Maresi (supra) the Court had the occasion to consider whether or not leave to appeal against the decision of the High Court originating from a land case can be granted by the Court under that section of the AJA. It was held that the section cannot be invoked because it is inapplicable. The Court observed that it is the High Court which is vested with jurisdiction to grant leave under S. 47(1) of the Act. The position that S. 5(1) (c) of the AJA cannot be invoked to grant leave to appeal was also stated by the Court in the case of Nuru Omary Ligolwike (supra), cited by Mr. Nangawe. In that case, the applicant applied for leave to appeal before the Court under S. 5(1) (c) of the AJA. The Court held inter alia that leave to appeal can only be granted by the High Court under S. 47 (1) of the Act and that it is that Court which is vested with exclusive jurisdiction to do so. It means therefore, that the requisite leave can only be granted under S. 47(1) of the Act. 4

There is no gainsaying therefore that in this case, leave was wrongly granted under S. 5 (1) (c) of the AJA. In circumstances, we agree that no valid leave to appeal was granted in respect of the impugned decision. We find further that the transgression renders the appeal incompetent. As a consequence, the appeal is hereby struck out. Each party shall bear its own costs. DATED at ARUSHA this 14 th day of December, 2017. S. MJASIRI JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. M UMI DEPUTY REGISTRAR COURT OF APPEAL 5