Abubakar Ali Himid v. Edward Nyelusye Civ appeal no 51 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 51 OF 2007

ABUBAKAR ALI HIMID ……………………………..…. APPLICANT

VERSUS

EDWARD NYELUSYE ……….……………………….. RESPONDENT

(Application for leave to appeal to the Court of Appeal

from the decision of the High Court of Tanzania,

Land Division, at Dar es Salaam)

 (Longway, J.)

dated the 22^nd day of May, 2006

in

Land Case No. 42 of 2005

-------------

R U L I N G

19 September 2007 & 4 January 2008

NSEKELA, J.A.:

        This is an application for leave to appeal to this Court after a similar application had been refused by the High Court, Land Division (Longway, J.) in Land Case No. 42 of 2005.  It is supported by an affidavit affirmed by one Abubakar Ali Himid, the applicant.  The respondent Edward Nyelusye, filed an affidavit in reply.

        When an applicant for leave to appeal comes to a single judge of this Court after his application is refused by the High Court, he does so by way of a fresh application, not by way of an appeal, reference or revision, so that the single judge exercises original jurisdiction in dealing with the matter.  (See: Civil Reference No. 11 of 1999, Manoharlal Aggarwal and Tanganyika Land Agency Limited and 8 Others (unreported).  The applicant’s grounds for leave to appeal are contained in paragraph 8 of the affidavit in support, and I reproduce them hereunder –

“8. That I am aggrieved by the refusal and am applying to this Honourable Court for leave to appeal on grounds that:–

(i)        the pendency of another case between the same parties, based on the same facts and the same cause of action rendered it necessary for the Land Court to give me leave to appeal so that the Court can appropriately intervene as the respondent had not disclosed a material fact, namely that the parties are still engaged in High Court Civil Case No.  213 of 1998 in  Dar es Salaam Registry in relation to the same matter, hence the ex parte orders were obtained through misrepresentation, which facts were wrongly ignored by the Land Court.

(ii)       The propriety of substituted service when the respondent had knowledge of my physical and postal address, and my advocates’ address made it necessary for the Land Court to issue leave to me so that this final Court give guidance on the matter, as it amounted to an abuse of the court process on the part of the respondent.

(iii)    The basis for refusal to grant leave is unclear and since I am asking for leave to be heard on merit, it was necessary for the Land Court and now desirable for this Court to grant me leave so that I can challenge the adverse decision.”

Mr. Kalolo-Bundala, learned advocate, appeared on behalf of the applicant.  He submitted, as he had done before the court below, that there were points of law and fact suitable for consideration by this Court, bearing in mind that this was a first appeal.  The learned advocate challenged the propriety of substituted service on the applicant; that a right of appeal should not be unreasonably withheld particularly on a first appeal; that there were parallel proceedings in the Land Division and in the Main Registry of the High Court apparently on the same subject matter and on the same cause of action.  On his part, Mr. Buberwa, learned advocate for the respondent, strongly disputed the contents of paragraphs 3 and 8 of the affidavit in support.  Perhaps at this juncture, I should reproduce as well paragraph 8 of the respondent’s affidavit in reply sworn by one Mr. Edward Nyelusye.  It provides –

“8. That the contents of paragraph 8 of the applicant’s affidavit are denied and I categorically state that:–

(i)        The suit pending is not based on the same cause of action nor between the same parties as affirmed or at all.  Further to that, ex parte orders were not obtained through mis-representation and further the first court rightly refused the application for leave to appeal.

(ii)       The substituted service was proper after an attempt to serve the applicant through the common means had proved futile.  Further to that, I aver that there was no abuse of the court’s process on my part as affirmed.

(iii)    There was no sufficient cause or something of substance for grant of leave to the applicant.”

In elaborating, Mr. Buberwa submitted that the applicant was granted opportunity to be heard on the matter and that two rulings were given on the merits.  He added that in the absence of an affidavit from an official of Majembe Auction Mart, the applicant could not have known that Land Case No. 42 of 2005 was pending on the 28.12.2005.

        As was stated in Civil Reference No. 11 of 1999 referred to above, an application for leave to appeal to this Court does not confer upon the single judge jurisdiction by way of appeal, reference, revision to deal with the decision of the court below.  Hence I have to examine the merits of the application from my own perspective guided of course by applicable principles of law.  In Civil Reference No. 19 of 1999 between Harban Haji Mosi (2) Shauri Haji Mosi  and (1) Omar Hilal Seif (2) Seif Omar (unreported), this Court stated thus –

“Leave is grantable where the proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal.  The purpose of the provision is therefore to spare the court the spectre of unmeriting matters and to enable it to give adequate attention to cases of true public importance.”

        In paragraph 8 (1) of the affidavit in support, the applicant has alleged that there are in effect two parallel proceedings based on the same facts and the same cause of action.  If this is factually correct, should such a situation be allowed to continue?  The respondent has vigorously countered this allegation.  The applicant has also alleged that the respondent misrepresented facts before the court below.  On the face of it, this is a serious matter for if it is true, it perverts justice.  I am aware that leave to appeal is not automatic, it is discretionary.  On the affidavit evidence before me, the applicant has established that the application is not frivolous, vexatious or useless.  There is an arguable appeal, hence the need for this Court to adjudicate upon the rival contentions of the parties.

        I therefore grant leave to appeal to this Court as sought.  It is so ordered.

        DATED at DAR ES SALAAM this 31^st day of December, 2007.

H. R. NSEKELA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(I. P. KITUSI)

DEPUTY REGISTRAR

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