misc land app 18804 SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 18804 of 2024 {Application for Review of the Ruling of this Honourable Court dated 11th July 2024 by Hon A. Msafiri J) AISIA SOMBIRO MATOWO.................................. 1st APPLICANT LIBERATUS KILEKI MREMA..................................2nd APPLICANT VERSUS BILL.L. MREMA.................................................. 1st RESPONDENT ANGELINA.M. MADENKWE.............................. 2nd RESPONDENT RULING Last Order: 25/9/2024 Date of Ruling: 15/10/2024 A.MSAFIRI, J. On 11th July 2024, this court struck out with costs both Land Case No. 2469 of 2024 and its Application No. 5080 of 2024 after it has suo motu raised a legal point on the propriety of the then application and main suit filed in this court. The Applicants dissatisfied by the said decision are now seeking for this court to review and have filed a memorandum of review on the following grounds:- 1. That the Ruling of the Court contains manifest and serious errors on the face of records by failing to consider that the High Court, Temeke Sub Registry at Temeke One Judicial Stop Centre and the District Court of Temeke are not proper Courts vested with Jurisdiction to entertain land matters and cannot determine any issue related to land matter thus resulted /f 1 in reaching erroneous finding which occasioned failure of justice to the Applicants mainly as follows: - a) That the Court erroneously upheld that the main case (Land Case Number 2469 of 2024) and the Application (Miscellaneous Land Application Number 5880 of 2024) have been filed prematurely and proceeded to struck them out while there is no any current pending execution application that has been preferred and attached the disputed landed property. The applicants prayed that the ruling of this court be reviewed and the order dismissing out the main case (Land Case No. 2469 of 2024) and the Application (Miscellaneous Land Application No. 5880 of 2024) be vacated and set aside and both the main case (Land Case No. 2469 of 2024) and the Application (Miscellaneous Land Application No. 5880 of 2024) be restored, and costs to be borne by the 2nd Respondent. By the leave of the court, the parties agreed to address the court by way of written submissions whereby the submissions by the applicant were drawn and filed by Mr Simon Barlow Lyimo, learned advocate, the reply submission was drawn and filed by Mr Farajani Mwasanyamba, learned Advocate for 2nd respondent. The 1st respondent did not file the submission as he is in support of the application. /(IL- 2 Mr Lyimo for the applicant was the first to address the court that the court has power to review its own decision as provided under Section 78 (1) (a) and Order XLII Rule 1 (1) (a), 2 and 3 of the Civil Procedure Code [Cap 33 R. E of 2019] (herein the CPC). He submitted on grounds for review that, the ruling of the court contains manifest and serious errors on the face of records by failing to consider that the High Court, Temeke Sub Registry at Temeke One Judicial Stop Centre and the District Court of Temeke are not proper Courts vested with jurisdiction to entertain land matters and cannot determine any issue related to land matter thus resulted in reaching erroneous findings which occasioned failure of justice to the Applicants. He referred to the cases of Emmanuel Jagero and 3 others vs Multimodal Transport Africa Limited, Review No. 02 of 2012, Patty Interplan Ltd vs TPB Bank Pic, Civil Application No. 103/01 of 2018 and OTTU on behalf of P. L. Assenga & 106 Others vs. AMI (Tanzania) Limited, Civil Application No. 20 of 2014 (unreported), and Mirumbe Silas @ Mwita vs. the Republic, Criminal Application No. 4 of 2016, Court of Appeal of Tanzania At Mwanza. He submitted further that there is a serious error on face of records by the court when it held that the main case and Application have been filed 3 prematurely and that the Applicants herein were supposed to file objection proceedings in the trial court instead of a fresh suit. He was of the view that the objection proceedings should be made when the property is attached in execution of a decree, and the property was not subject to the attachment. He supported his argument by citing Order XXI, Rule 57 of the CPC. He said that there was no application for execution and no order of attachment has been issued hence the applicants could not have filed for objection proceedings. He argued that for a party to resort and file an objection proceedings there has to be an attachment of a property in execution of a decree which is not so in the instant matter. He prayed to the court to grant the application for review. In reply Mr. Mwasanyamba for the 2nd respondent submitted that it was proper for the court to strike out the application and the main suit because they were filed prematurely and this court was not a proper forum to hear fresh suit to the party who has not challenged the case by way of objection proceedings as per Order XXI, Rule 57 of the CPC. He added that if the applicants were to institute a fresh suit, they ought to have exhausted first the remedies available under Order XXI of the CPC. M® 4 He argued further that it is not necessary that there must be an execution application for objection proceedings to be filed, and that, as long as the property is touched in any suit, an objection proceedings has to be instituted in the first place as provided for under Order XXI, Rule 98 of the CPC. To bolster his argument, the counsel cited the case of Sauda Maalim Laurent vs Exim Bank Tanzania Limited, Land Case No. 312 of 2022, HC, Land Division at DSM. On the issue of jurisdiction, he was of the view that the High Court is vested with jurisdiction to entertain land matters as per Section 167 of the Land Act, Cap 113 R.E 2019. In rejoinder, Mr Lyimo reiterated his submission in chief and prayed the court to grant the application. Having gone through the submissions by the learned counsels, the issue for determination and consideration is whether the application has merits. The law governing reviews is found under Section 78 (b) and Order XLII (1) (b) of the CPC. The relevant provisions of Section 78 provides as follows:- 78.-(1) Subject to any conditions and /imitations prescribed under Section 77, any person considering himself aggrieved- MG- 5 (a) by decree or order from which an appeal is allowed by this Code but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Code, may apply for a review ofjudgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. And Order XLII reads; 7. -(1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account ofsome mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review ofjudgment to the court which passed the decree or made the order, (emphasis added). According to the above provisions cited and reproduced, there are three (3) conditions for one to prefer for review of a decision or order of the court under Section 78 and Order XLII of the CPC. One, it must be established that there is a discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time 6 when the decree was passed or the order was made. Two, where it is established that there is some mistakes or errors apparent on the face of the record, and, three, there is any other sufficient reason for the court to review its decree or order. Therefore it was the duty of the applicants to establish whether there is a discovery of new evidence, mistakes, or errors apparent on the face of the record, and sufficient reason for the court to review its decree or order made. The counsel of the applicant claims that the court made a mistake or error in Land Case No. 2496 of 2024 and its application as the court held that the main suit and application were prematurely filed. For the court to review its decision, an error should be self-evident, if an error is not self-evident and its detection requires a long debate and process of reasoning it can no be treated as an error on the face of records, it must be such as can be seen by one who runs and reads, as stated in the case of Mirumbe Silas @ Mwita vs. the Republic, (supra) In my views, based on the above position set by the Court of Appeal, there is no mistake or error in the ruling of Land Case No. 2496 of 2024 and its application. I say so because the applicants were not parties to the Matrimonial Cause No. 129 of 2022 in the District Court at Temeke One Stop Judicial Centre, they filed Land Case No.2496 seeking for the 7 orders that they are the lawful owners of the house located at Plot No. P334335 with a Certificate of Title No. DSMT 1033413 located at Goba Kunguru in Ubungo District within Dar es Salaam, the suit property which is also subject to matrimonial distribution in Matrimonial Cause No. 129 of 2022. This court was of view that the main suit and application were prematurely filed because the applicants have not exhausted all remedies available in the legal jurisdiction in respect of the subject matter. Among the remedies mentioned in page 8 of the impugned ruling is objection proceeding as provided under Order XXI Rule 57 of the CPC. It is true that objection proceedings should be made when the property is subject to attachment in execution of decree as submitted by the counsel for the applicant, but beside the circumstances provided under Order XXI Rule 57, there are also circumstances under Rule 98 where a person other than the judgment debtor if dispossessed of immovable property may make appropriate application complaining of dispossession. In addition, the impugned ruling in the main case was not about the objection proceedings only as the applicants would like to convince the court. At page 7 of the impugned ruling, this court was of the view that the suit and its application have been filed prematurely before this court 8 as the applicants have not exhausted all the remedies available to our legal jurisdiction pertaining the subject matter. If the remedy of objection proceedings was not proper considering the case's circumstances, the applicants were supposed to exhaust other remedies available to legal jurisdiction but not to file the new suit. Allowing that will cause the courts to have conflicting decisions concerning the suit property. Given that there are no mistakes or errors in Land Case No. 2496 of 2024, I find the application for review lacks merit and it is hereby dismissed with costs. 15/10/2024 9