NATIONAL Social Security Fund (NSSF) has lost its appeal it had filed to challenge payment of about 20m/- to a businesswoman, Grace Lumelezi, over a dispute involving a commercial building situated in Tabora Municipality.
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
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