This follows a decision by the Court of Appeal to ‘strike out with costs’ the appeal in question after allowing a ground of preliminary objection raised by Lumelezi, the respondent, that the NSSF had not sought and obtained leave of the High Court before filing the appeal.
Referring to section 47 (1) of the Land Dispute Court Act, Justices Mbarouk Mbarouk, Bernard Luanda and Richard Mziray, found that any person who is aggrieved by the decision of the High Court on land matters may with the leave from the High Court appeal to the Court of Appeal.
“It is clear that leave to appeal is prerequisite before an aggrieved party knocks the doors of the Court of Appeal in a land dispute originating from the High Court in the exercise of its original, revisional or appellate jurisdiction,” they said.
Without obtaining such leave, according to the justices, an aggrieved party from a decision of the High Court could not file an appeal in the Court of Appeal. They observed that it was undisputed that in the case by NSSF, the appellant, such leave was not secured.
In resisting the preliminary objections, the appellant had the impression that in so long as the suit was heard by a judge of the High Court Registry and not the Land Division, then the suit fall securely as a normal suit on which leave to appeal was not required.
However, the justices of the appeals court found the position by the appellant as a misconception taking into consideration the amendments of the law, in particular section 2 of the Land Dispute Courts Ac in respect of the definition of the term “High Court (Land Division.)”
According to such amendments of 2010, the term High Court (Land Division) was substituted to mean the High Court of Tanzania established by Article 108 of the Constitution of the United Republic and where such term appears in the Act is substituted for it with the term “High Court.”
The justices, therefore, pointed out that significantly the amendment brought one major development in expatiating the hearing of land disputes at the level of the High Court by removing the exclusiveness of the Land Division to hear land disputes and it conferred jurisdiction of all High Court judges.
High Court Judge Haruna Songoro had ruled in favour of Lumelezi in a land case over a dispute in commercial building situated at Plot.
No. 3, Block A, Jamhuri Street in Tabora Municipality. In that decision, the NSSF was ordered to re-reimburse her a sum of 2.5m/- paid as 25 per cent of bidding price. Such payments attracted interests of 10 per cent per annum from the date of the suit was instituted to the date of judgment.
In addition, the NSSF was to pay the woman 8m/- as general damages plus interests and costs of the suit. NSSF was aggrieved by the decision and filed the appeal in question.
source-www.dailynews.co.tz
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