Ruling Land Case Revision No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI LAND CASE REVISION NO. 06 OF 2023 (C/F Misc. Application No.163 of 2023 in the District Land and Housing Tribunal for Moshi at Moshi) AGAPIT FIDELIS MASIKA................................................... 1ST APPLICANT VICTORINO FIDELIS MASIKA…………………….………...2ND APPLICANT VERSUS GIDO FIDELIS KIMARIO …………………………..……….1ST RESPONDENT KILICRALS ADVENTURE AND SAFARIS AUCTIONERS..………………………….…….....2ND RESPONDENT RULING Date of Last Order: 07.03.2024 Date of Ruling : 18.04.2024 MONGELLA, J. The application at hand has been filed under section 41 and 43 (b) of the Land Disputes Courts Act [ Cap 216 R.E. 2019], whereby the applicants are seeking for this court to revise the order issued by the District Land and Housing Tribunal for Moshi at Moshi rendered in Miscellaneous Application No. 163 of 2023 dated 02.10.2023. The application is supported by an affidavit sworn by Mr. Elia Johnson Kiwia, their advocate. The first respondent challenged the application vide a sworn counter affidavit of Mr. Gideon Mushi, their advocate. Page 1 of 20 Mr. Mushi raised an objection that this matter was prematurely brought before this court contrary to Regulation 11 (2) of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, GN. No. 174 of 2003 (the Regulations). This court ordered the parties to submit on the objection and the main application in their respective written submissions. I find it necessary to give the brief facts of the application as gathered from the affidavits and submissions of the parties. The matter at hand concerns a property located at plot number 85 block A at Tarekea Urban area. In 2017, the applicants filed Land Application No. 60 of 2017 before the District Land and Housing Tribunal for Moshi at Moshi (hereinafter, the tribunal) against the 1st respondent and one Oliver Fidelis Masika claiming the suit property. They alleged the land was illegally sold to the 1st respondent. The tribunal found in favour of the first respondent and the said Oliver. Aggrieved, the applicants filed an appeal, that is, Land Appeal No. 25 of 2021 before this court whereby the court found in favour of the first respondent and the said Oliver. Aggrieved, the applicants commenced their journey to file an appeal in the Court of Appeal (CAT). They filed notice of appeal before the CAT and allegedly served the respondent. They also sought for and were granted leave to appeal vide Miscellaneous Application No. 49 of 2021. Apart from the journey taken by applicants, the respondents too had their own journey. After being declared victorious before the Page 2 of 20 tribunal, they filed Miscellaneous Application No. 323 of 2021 seeking to execute the decree of the said tribunal. The applicants objected the execution for the reason that there was a pending appeal before this court. The tribunal decided to adjourn the matter before it, sine die. After this court found in favour of the 1st respondent and the said Oliver, the respondents filed Miscellaneous Application No. 163 of 2023 in the tribunal seeking to execute the decree by the two courts. It is the said application that the applicants seek to be revised by this court. Mr. Kiwia, submitting in regard to the revision, alleged that the applicants were absolute owners of the suit land which they were bequeathed by their late father in 1970 and thereafter in 1983 they obtained an offer on the respective property. They alleged that the said plot has two houses one belonging to the first applicant and the other to the second. He alleged that after the applicants were granted leave to appeal to the CAT vide Misc. Application No. 49 of 2021, the applicants were informed on 03.09.2023, by a neighbour, that an eviction order was affixed in the suit premises. It was then that they discovered that there was an application for execution filed in the tribunal. Page 3 of 20 With regard to the competence of the application at hand, Mr. Kiwia averred that the application is properly before this court as per Section 41 and 43 (b) of the Land Disputes Courts Act which gives powers to the High Court to revise proceedings of the trial tribunal. He further employed the definition of “proceedings” as provided by the Black’s Law Dictionary. He averred that the definition covers proceedings from filing stage to execution process. Further, citing Section 79(1) of the Civil Procedure Code [Cap 33 RE 2019], he alleged that the provision gives power to this court to revise the decision of subordinate courts in certain situations including where the subordinate court has acted illegally or with material irregularity in exercising its jurisdiction. Mr. Kiwia averred that it was apparent on records that it was illegal and irregular for the 1st respondent to file for execution vide Misc. Application No. 163 of 2023 while there was Misc. Application No. 323 of 2021 pending in the same tribunal. He was of the view that the application was a res subjudice as per Section 8 of the Civil Procedure Code. Arguing as to the rightful owner of the disputed property, he had the stance that the sold property belonged solely to the 2nd applicant. However, that, the execution order involved the entire suit premises. He added that the1st applicant still resides in the suit premises and it was thus unjust, illegal and irregular for the tribunal Page 4 of 20 to order the 1st applicant to be evicted in the suit premises contrary to the judgement and decree of the tribunal. Mr. Kiwia also averred that the applicants were not called during the determination of Misc. Application No. 163 of 2023 while the 1st respondent and Mr. Mushi, who stood as their advocate, knew that service of necessary court documents on the matter was always made to him (Mr. Kiwia). Further that, at the said time, all documents to the CAT were served to them but they willingly ignored same and proceeded to file an application for execution. Mr. Kiwia contended that since the appeal was pending at the CAT, then the entire record of the lower courts was before the CAT. He thus questioned how the trial tribunal possibly determined Misc. Application No. 163 of 2023 in absence of the record. The counsel alleged that the 1st respondent fraudulently filed the said application to willfully occasion injustice to the applicants and to conceal the fact that he had already demolished part of the premises. He blamed Mr. Mushi for filing Misc. Application No. 163 of 2023 alleging that the counsel illegally filed the same while there was a pending application on the same matter. That, the counsel misdirected the trial tribunal that the matter had been finalized while it is still pending in the CAT. Page 5 of 20 Finalising his submission, Mr. Kiwia remained firmly convinced that that the application at hand holds a chance to succeed. He held the position on the ground that the respondents contravened Section 8 of the Civil Procedure Code by illegally filing another application for execution. Further, that the eviction order was delivered to a party whose property was not in the decree. He further claimed that the applicants were denied the right to be heard. In the premises, he held the view that if the said errors are not corrected, the applicants shall face injustice as the unlawful eviction order shall be executed. He added that, the 1st the applicant shall suffer irreparable loss since his house was not part of the decree. He concluded by praying for the revision to be allowed with costs. While responding, Mr. Mushi first submitted on the preliminary objection he advanced. He averred that Misc. Application No. 163 of 2023 proceeded ex parte following the applicants’ refusal to accept service of summons, pursuant to Regulation 11(1)(c) of the Regulations. He contended that since the ruling was delivered ex parte, the applicants ought to have exercised the remedy set under Regulation 11(2) of the Regulations, which is to file an application to set the ruling aside. Arguing further, he contended that there are two remedies when an ex parte order or ruling has been issued. One, is for the applicant to file an application to set the same aside or two, to appeal against said Order. He fortified his arguments with the case of Page 6 of 20 James kabalo Mapalala vs. British Broadcasting Cooperation [2004] T.L.R 150. He alleged that it is an established principle that one cannot appeal or file an application for revision before a higher court prior to exhausting all remedies provided by the lower court. That, since the applicants never entered appearance in the said application, they ought to have applied to set aside the ex parte ruling. He further backed his stance with the case of: Pangea Minerals Ltd vs. Petrofuel T. Ltd & Others (Civil Appeal 96 of 2015) [2020] TZCA 185 (15 April 2020); Jumuiaya ya Wafanyakazi Tanzania vs. Kiwanda cha Uchapaji cha Taifa [1988] T.L.R 146; Daniel Sebastian vs. Sebastian Daniel Oldetariki (Misc. Land Case Application 51 of 2020) [2021] TZHC 5449; Registered Trustees of Pentecoste Church in Tanzania vs. Magreth Mukama (Civil Appeal 45 of 2015) [2016] TZHC 2 and; Yara Tanzania Ltd vs. D. B. Shapriya & Co. Ltd (Civil Appeal 245 of 2018) [2020] TZCA 265 (all from TANZLII). Mr. Mushi further cited decisions referred to in Yara Tanzania Ltd vs. D. B. Shapriya (supra) which include: Integrated Property Investment & Others vs. Company for Habitat and Housing in Africa (Civil Appeal 107 of 2015) [2018] TZCA 349; Regional Manager Tanroads Lindi vs. D. B. Shapriya & Co. Ltd (Civil Appeal 86 of 2010) [2017] TZCA 233 National Investment Company Limited and Another vs. Public Service Pension Fund (PSPF) and 6 Others, Civil Application No. 154 of 2012 CAT at Dar es Salaam (unreported) and Benjamin Nkwera vs. Hubert A. Wayotile (Land Appeal 10 of 2020) [2021] TZHC 9166. On the strength of these authorities, he prayed for Page 7 of 20 the application to be struck out with costs for being prematurely filed before this Court. Replying to the applicants’ submissions on the revision, Mr. Mushi centred his submissions on Regulation 24 and 25(1) of the Regulations. He averred that an appeal is not a bar to execution and that a judgement debtor who intends to appeal to the High Court has the right to apply for stay of execution. He challenged Mr. Kiwia arguing that he (Mr. Kiwia) intended to mislead the court by contending that the applicants were absolute owners of the suit premises. Explaining further on that, he contended that there was no court that declared the applicants owners of the suit premises. Concerning proof of ownership, he added that the applicants’ mother had lawfully sold the suit premises to the 1st respondent. Arguing further, he alleged that after the tribunal had declared the 1st respondent the owner of the suit premises, he filed Misc. Application No. 323 of 2021 in the trial tribunal seeking for execution of the tribunal decree in Application No. 60 of 2017. That, after the appeal, the case file of Misc. Application No. 323 of 2021 was nowhere to be seen leading the respondent to file another application, that is, Misc. Application No. 163 of 2023 seeking for execution order. Mr. Mushi contended that the applicants were issued summons but refused to receive the same rendering the matter to proceed ex parte against them. In the premises, he disputed Misc. Application No. 163 of 2023 being res subjudice to Misc. Application No. 323 of 2023. He as well disputed the assertion Page 8 of 20 that the tribunal issued an eviction order as alleged by the applicants. As to whether an appeal can stop execution of a court decree, he challenged that an appeal cannot operate as a bar to execution whether it stands before this court or the CAT. He insisted that the applicants ought to have field for stay of execution but that was not done. In the premises, he maintained his stance that the matter was brought prematurely before this court and the parties ought to have filed an application to set aside the ex parte ruling by the tribunal in Misc. Application No.163 of 2023. He finalized his submissions by praying for the application to be dismissed with costs for being devoid of merit. Rejoining, Mr. Kiwia started by addressing Mr. Mushi’s argument on the merit of this application. He challenged Mr. Mushi’s submission on the ground that he intentionally evaded addressing the court on the fact that there is a pending appeal the CAT. He further contended that the counsel was concealing his illegal act of filing an application for execution vide Misc. Application No. 163 of 2023 while knowing that there was a pending application, that is, Misc. Application No. 323 of 2021. He alleged that the counsel was feigning ignorance by stating that the file in the later application was nowhere to be seen rendering them to file a new matter. He further challenged Mr. Mushi’s contention regarding loss of the file arguing that he (Mr. Mushi) was well aware that where there is an Page 9 of 20 appeal to the CAT, all records of the lower court are forwarded to the CAT and nothing is left behind. He further averred that the practice, when the court file is missing or is misplaced, is that the same is reconstructed, whereby copies of pleadings, proceedings and exhibits are sought from parties to reconstruct the new file. In those bases he challenged that filing a new application is not the procedure. In reply to the preliminary objection, Mr. Kiwia contended that the applicants do not seek to revise the tribunal judgement under Part IV of the Regulations. That, instead, they seek to revise the ruling of the trial tribunal in Misc. Application No. 163 of 2023, thus the applicants cannot seek to set aside the said ruling as such is not the option given under the regulations. He alleged that, the case of Yara Tanzania Ltd vs. D. B. Shapriya and Co. Ltd (supra) is distinguished from the matter at hand in the sense that the same provides for setting aside of Judgement in a main suit heard ex parte. That, none of the cases cited by the 1st respondent’s counsel address on setting aside of a decision in a miscellaneous application. Mr. Kiwia argued that Regulation 11 (2) of the Regulations is found under Part IV of the Regulations which deals with procedure for hearing and judgement. That, the whole part provides for determination of a main suit until judgement is pronounced. Page 10 of 20 Contending that the legislature intended for the provisions to be as such, he referred to the case of Director of Public Prosecutions vs. Julieth Simon Peleka (the Administratrix of the Estate of the late Gebu Ichoma Sayi) (Criminal Appeal No. 94 of 2019) [2020] TZCA 350 in which the case of Consumer Food Safety Commission et al vs. GTE Syvania Inc. et al 447 U.S 102 was cited. He also cited the case of Republic vs. Mwesige Godfrey & Another (Criminal Appeal 355 of 2015) [2015] TZCA 264. In his view, there is no any regulation under Part V that provides for remedies for an application heard ex parte. That, according to Regulation 24, the applicant had to abide by the law and to appeal to this court instead of setting aside as alleged by the respondents’ counsel. Mr. Kiwia defended that the applicants have the intention of challenging the irregularities and illegalities of the impugned ruling which they did not get an opportunity to object. He alleged that the circumstances differed from the contents of Regulation 24 as the applicants could not file an appeal. That, revision was thus the only remedy on the table. He prayed for the preliminary objection to be overruled on those bases. He further alleged that under Section 70 (2) of the Civil Procedure Code, as interpreted in various authorities, an appeal may lie from original decrees passed ex parte and thus the applicants had another option to appeal against the said decision. He alleged; it was not an absolute rule that a party must seek to set aside the ex Page 11 of 20 parte order as the same is immaterial where a party is challenging the content of the ex parte judgement. Mr. Kiwia further insisted on his stance that revision was also a means to challenge irregularities and illegalities of the eviction order of the tribunal, which required the 1st applicant to be evicted while his house was not in dispute. He added that the applicants intend to challenge the illegal act of the 1st respondent in filing Misc. Application No. 163 of 2023 while there was a pending Application, Misc. Application No. 323 of 2021. He reiterated that under Section 43(b) of The Land Disputes Courts Act, the High court is endowed with powers to revise proceedings of the District Land and Housing Tribunal and make a decision it thinks fit. He considered the tribunal decision to contain apparent error on the merit of the case thereby occasioning injustice. Referring to Section 79 (1) of the Civil Procedure Code, he reiterated his position that the High Court is mandated to revise decisions of subordinate courts where the said court has acted illegally or with material irregularity in exercising its jurisdiction. He cemented his arguments with the case of SGS Societe Generale De Surveilance S.A vs. VIP Engineering and Marketing Ltd [2004] TLR 135. Mr. Kiwia finalized his submissions averring that the law is clear that when there are irregularities and illegalities in the decision of the courts, there is no other remedy for correction of the same. That, the appropriate remedy in the circumstances is filing of an Page 12 of 20 application for Revision. He prayed for the objection to be overruled with costs. I have objectively considered the rival submissions of both parties’ counsels. Since there is a preliminary objection, customarily, I am required to dispose the same prior to addressing the merits, as I shall hereby do. The objection at hand is pegged under Regulation11of the DHLT Regulations. This provision provides for two things: one, the option for hearing of an application to proceed ex parte where the respondent does not appear on the date fixed for hearing and two; the remedy where the matter is set to proceed ex parte which is to file an application to set aside the ex parte order within 30 days, which if denied, an appeal could be preferred. Specifically, these two positions appear under Regulation 11 (1) (c) and 11 (2) of the Regulations which state: “11(1) On the day the application is fixed for hearing the Tribunal shall: (a)N/A; (b)N/A; (c) where the respondent is absent and was duly served with notice of hearing or was present when the hearing date was fixed and has not furnished the Tribunal with good cause for his absence, proceed to hear and determine the matter ex-parte by oral evidence. Page 13 of 20 (2) A party to an application may, where he is dissatisfied with the decision of the Tribunal under sub-regulation (1), within 30 days apply to have the orders set aside, and the Tribunal may set aside its orders if it thinks fit so to do and in case of refusal appeal to the High Court.” The matter which the applicants seek to revise is an ex parte order issued in Misc. Application No. 163 of 2023. The 1st respondent through his counsel, Mr. Mushi, contended that being an ex parte order, the applicants ought to have filed an application to set it aside prior to seeking revision as they did herein. His contention is based on multiple decisions of this court and the Apex Court, which require a party to exhaust all available remedies prior to filing an appeal or revision. On the other hand, the applicants through their counsel, Mr. Kiwia, alleged that such remedy was not available to the applicant since this was a ruling in regard to an application for execution and not a judgment. Further that, Section 70 (2) of the Civil Procedure Code limits appeals to be filed only against original decrees passed ex parte. It is well settled that a party aggrieved by an ex parte order should exhaust all available remedies offered by lower court prior to approaching a higher court. See; Yara Tanzania Ltd vs. D.B. Shapriya & Co. Ltd (supra); Pangea Minerals Ltd vs. Petrofuel T. Ltd. & Others (supra) and; Daniel Sebastian vs. Sebastian Daniel Oldetariki (supra). In Yara Tanzania Ltd vs. D. B. Shapriya & Co. Ltd (supra), the Court stated: Page 14 of 20 “...it is now settled that when a party is aggrieved with an ex parte, summary or default judgment of the High Court, he must first exhaust the alternatives or remedies available in the High Court before coming to this Court on revision or appeal. If that is not done, the revision or appeal to the Court will be rendered misconceived and prone to be struck out.” To this point, the question is whether revision was the appropriate remedy for the applicants in the circumstances? Mr. Mushi was of view that such avenue to challenge the execution exists under Regulation 11 (2) of the Regulations. On the other hand, Mr. Kiwia alleges that such avenue does not exist, since the matter in question is not covered under the DHLT Regulations and thus an application for revision was the appropriate approach. As clearly seen above, Regulation 11 falls under Part IV of the Regulations and the same provides for procedures for hearing of matters before the District Land and Housing Tribunal. It is in Regulation 23 that matters pertaining to execution orders and decrees are provided. The same do not provide any details as to circumstances where such application could be heard ex parte and the remedies available to the parties thereof. However, this does not serve as proof that such avenue to challenge an ex parte ruling does not exist. It is well known that where a matter is resolved ex parte, then the party may seek for an order to set aside the said proceedings. I am Page 15 of 20 thus of the view that this avenue exists in an application for execution where a party condemns the execution order being made in his absence. This is because, the provisions covering execution, that is, Regulation 23 and 24 of the Regulations have also set room for judgement debtors to be notified of the proceedings at the initial stage through a notice that is to last for 14 days. If they intend to object, then they should file an objection within the 14 days. Where there is no response nor an objection filed, the tribunal may proceed to issue an order for execution. If then, the judgement debtor is not served the notice and an order is made thereafter without his knowledge the order is clearly ex parte. In that context, the judgement debtor ought to be afforded the opportunity to seek for the order to be set aside so he could file objection proceedings. It should be noted that a party may appeal or seek revision against an ex parte order where he or she intends to challenge the said order on merits rather than challenging the order to proceed ex parte. This was well explained in the case of Dangote Industries Limited Tanzania vs. Warnercom T. Limited (Civil Appeal 13 of 2021) [2022] TZCA 34 TZCA, in which the Court stated: “... the requirement that an aggrieved party should not appeal before attempting first to set aside an ex parte judgement, does not apply where the appellant is not interested to challenge the order to proceed ex parte or was the plaintiff at the trial court.” Page 16 of 20 The Apex Court further cited the case of Jaffari Sanya & Another vs. Saleh Sadiq Osman (supra) whereby it specifically made the said observation. In the said case, it observed: "This rule of setting aside an ex parte decree will only benefit a defendant but there are two possible scenarios in an ex parte decree. One, a defendant might not want to set aside an ex parte decree but may wish to contest the findings of the award. Two, a plaintiff notwithstanding that the decree is in his favour, might nevertheless wish to challenge the finding of the award.” The underlying question therefore is whether the applicants herein intended to challenge the execution order made in their absence or the merits of the order. Upon observing the affidavit and submissions brought by Mr. Kiwia, I found three issues raised therein. First, that Misc. Application No. 163 of 2023 is res subjudice to Misc. Application No. 363 of 2021, thus making the former illegal. Two, that the order included the 1st applicant’s house in execution and three, that they were intentionally unserved with necessary documents for execution. While the first and second issues address the merit of the decision, the third issue intends to challenge the decision to proceed ex parte. While the later issue could mean that the applicants should have filed an application to set aside the execution order on ground that their absence was with reason. The former would make this application rightly before this court. In my view, considering that the applicants never sought for any other remedy before any other Page 17 of 20 court in relation to the order they wish this court to revise, and further considering that the 1st issue suffices to render the entire proceedings and order of the tribunal in Misc. Application No. 163 of 2023 void in its entirety, if found so by this court, I find the application competent before this court. In that respect, I overrule the respondent’s point of objection and proceed to determine the applicant’s application by addressing first the first issue as to whether Misc. Application No. 163 of 2023 is res subjudice to Misc. Application No. 363 of 2021. The doctrine of res subjudice is well set under Section 8 of the Civil Procedure Code, which provides: “No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed.” The doctrine was also interpreted in the case of Karori Chogoro vs. Waitihache Merengo (Civil Appeal 164 of 2018) [2022] TZCA 83 TANZLII whereby the CAT stated: “The doctrine of res-sub judice prevents a court or Tribunal from proceeding with the trial of any suit in which the matter in issue is directly Page 18 of 20 and substantially the same with the previously instituted suit between the same parties pending before the same or another court with jurisdiction to determine it.” In that respect, the issue at hand is whether Miscellaneous Application No. 323 of 2021 was sub judice to Misc. Application No. 163 of 2023. Both applications were execution of the tribunal decree rendered in Land Application No. 60 of 2017. The respondents do not contest that these two applications were filed before the tribunal. These facts were also deponed on paragraphs 6 and 7 of Mr. Kiwia’s affidavit and paragraph 7 of Mr. Mushi’s counter affidavit. Mr. Mushi as well, did not object that Misc. Application No. 323 of 2021 was stayed, instead he alleged that the file had gone missing and he had to file a fresh application. From the submissions made by the parties, it is apparent that there indeed was an application for execution filed vide Misc. Application No. 323 of 2021 in the tribunal on 14.06.2021, which had been stayed pending determination of Land Appeal No. 25 of 2021. Further, that, in 2023, Misc. Application No. 163 of 2023 was filed for execution and eventually on 02.10.2023 an order of execution was passed by the tribunal. In the circumstances, it is clear that Misc. Application No. 163 of 2023 was res subjudice to Misc. Application No. 323 of 2021. Page 19 of 20 In that regard, the tribunal erred in admitting and entertaining another application of the same nature while the other was pending before it. Even if I was to entertain the allegation that the file on the initial application went missing, the appropriate remedy as rightly submitted by Mr. Kiwia, was for the tribunal to reconstruct a duplicate file under the same names and titles. In the foregoing, since Misc. Application No. 163 was res subjudice, entertaining the same was an irregularity on the part of the tribunal, thus rendering the entire proceedings a nullity. In respect thereof, I hereby quash the entire proceedings and set aside the Order issued under Misc. Application No. 163 of 2023. This application is thus allowed, with costs to be borne by the respondents. Dated and delivered at Moshi on this 18th day of April, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 20 of 20