ajene donatila ruambo vs evans benson another 2023 tzhclandd 16578 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND REVISION NO. 58 OF 2021 (Originating from the decision of the District Land and Housing Tribunal for Kinondoni District at Mwananyamala in Land Application No. 29 of 2014 dated 29.8.2016) AJENE DONATILA RUAMBO............................................................. APPLICANT

VERSUS EVANS BENSON..................................................................... 1st RESPONDENT RAMADHANI ABDALLAH MDULU.......................................... 2nd RESPONDENT

RULING Date of last Order: 16 May 2023 Date of Ruling: 23 June 2023 K. D. MHINA, J. This Application is brought under the chamber summons made under Section 43 (1) (b) of the Land Disputes Courts Act, Cap 216 [RE 2019] ("the LDCA"). The orders being prayed are for this Court to; i (i) Call for the proceedings of the District Land Housing Tribunal for Kinondoni at Mwananyamala in Land Application No. 29 of 2014 dated 29 August 2016 to revise the same and ordered re-trial of the case involving the applicant as a party (ii) Costs of the application. (iii) Any other relief (s) the Court may deem fit andjust to grant. The application is supported by the affidavit disposed of by Ajene Donatila Ruambo, the applicant. The grounds of the application were expounded in paragraph 7 of the affidavit that the DLHT decision was obtained based on fraud and misrepresentation. The particulars of fraudulent misrepresentation mentioned were; a) The 1st respondent while knowing that he was a party to the suit which was still pending to this court, he filed another case at the DLHT. b) Failure to disclose or conceal to the DLHTabout the prior existence of the suit regarding the disputed house and, c) Suing the 2fd respondent alone and leaving the applicant while knowing she had interest in the disputed house. The first respondent countered the application by filing the counter affidavit while the

who was represented by Ms. Tully Danford Mwakasisi, 2 though served and entered appearance but did not file the counter­ affidavit The revision was argued by way of written submissions. The applicant was represented by Mr. Francis Mgare, a learned advocate, while the first respondent by Mr. Frank Mtuta, also a learned advocate. Tuli Danford Mwakasisi, who holds a special power of Attorney for the 2nd respondent, did not file the submission. But before going to the submissions and the substance of the application, a brief background is significant to appreciate what prompted the filing of this application. Canvassing through the records, what I gather regarding the background of this application is as follows. Initially, the applicant lodged a land case in this Court, i.e., Land Case No. 22 of 2010, against the second respondent and another person named Agnes Kituta. In that suit, briefly, the applicant claimed to be declared a lawful owner after he purchased the suit premise from the second respondent. The suit premise was the landed property in Plot No. 347, Block 46, Kijitonyama Area. The first respondent requested to be joined as a party in 3 that case, and his prayer was granted on 11 April 2011, and he became the third defendant by filing the written statement of defence and the counter claim. When the suit was still pending, the first respondent applied to the District

Land and Housing Tribunal for Kinondoni (Land Application No. 29 of 2014) against the second respondent. He prayed to be declared as the lawful purchaser for the value of the suit premises located at Plot No. 347 Block 46, Kijitonyama area, and a declaration that any subsequent sale of the suit premises after 4/2/2004 to another person inclusive be declared void ab initio. On 29 August 2016, the DLHT decided the application in favour of the first respondent and declared that; (i) The first respondent was a lawful purchaser of the suit premise located at Plot No. 347, Block 46, Kijitonyama area. (ii) Any subsequent sale of the suit premise after 4 February 2004 to any other person was null and void ab initio. At that time, Land Case No. 22 of 2010 before this Court was still pending. 4 When the hearing started regarding Land Case No. 22 of 2010, the counsel for the first respondent raised an issue of res-judicata because of the decision of the DLHT for Kinondoni, which declared the first respondent as the lawful purchaser of the suit premise. This Court's decision dated 28 July 2017 dismissed Land Case No 22 of 2010. It declared that the case was res judicata because the DLHT for Kinondoni in Land Application No. 29 of 2014 had conclusively determined the subject matter The applicant was dissatisfied with what happened and decided to apply for revision before this Court (Land

Revision No 19 of 2017). After hearing that application was struck out for being time-barred on 4 December 2018. Undaunted, the applicant approached this court again with an application for an extension of time to file revision (Misc. Civil Application No.790 of 2018. That application was granted on 7 December 2021; therefore, the applicant filed this application on 17 December 2021. Having prefaced the background, now the submissions of the parties are as follows; Mr. Mgare submitted that the DLHT exparte judgment obtained by the 1st respondent was obtained through fraudulent misrepresentation of facts. Therefore, it should not stand in law as per Said Salim Bakhressa and Company vs. VIP Engineering & Marketing Ltd (1996) TLR310. His reasons were; one, the 1st respondent while knowing that he was a party to the original case and his counter claim was still pending to this court, clandestinely (secretly) filed another similar case like his counter claim to the DLHT, two; at the trial tribunal he never disclosed, or he concealed the pendency of the original case and his counter claim to this court involving the same subject matter and parties and three, the 1st respondent while knowing that the applicant bought the suit house from the 2nd respondent and therefore she had an interest to that house, but he only sued the 2na respondent to the trial tribunal and leaving the

applicant. He further submitted that an act of the 1st respondent suing the 2nd respondent only and leaving the applicant who had an interest to the suit house, the trial tribunal condemned the applicant unheard, contrary to the principles of natural justice. Mr. Mgare stated that the Court of Appeal of Tanzania, in a number of cases while speaking about the rules of natural justice, has always stated 6 that a decision given without regard to the principles of natural justice is void. That decision must be declared to be a no-decision. He bolsters his argument by citing DPP vs. Sabinis Inyasi Tesha and another (1996) TLR 156 and Mahona vs. The University of Dar Es Salaam (1981) TLR 55. Therefore, he invited this Court to nullify the DLHT proceedings and decision for contravening the principles of natural justice because the applicant was condemned unheard while the suit house, which was the subject matter in the two cases, the applicant had an interest to it as a buyer. In conclusion, he prayed for the decision of the DLHT t be revised as per Arcopar (O.M) S.A vs. Harbert Marwa and Family Investments Co Ltd and four others (2015) TLR 76 In response, Mr. Mtuta raised several points of law that; One, this revision is still time bared despite being filed after it was allowed by the ruling for an extension of time. Two, the matter has been overtaken by the event, and the

execution has already taken place and concluded, which has never been challenged 7 to date Three, the applicant preferred revision as an alternative to an appeal because the aggrieved party may appeal against the decisions of the High Court; such powers do not co-exist. Whenever there is a right of appeal, that right must be pursued first. To bolster his argument, he cited Transport Equipment Ltd v. Devram P. Valambhia [1995] TLR 161 He further argued that the applicant could challenge the evidential value of a DLHT decision except under exceptional circumstances, but she had not established it. Therefore, it was irrelevant because the applicant was not a party to DLHT proceedings and decision. Therefore, the present revision is an appeal in disguise for the 2nd respondent due to the prayers sought by the applicant; it is obvious the 2nd respondent was collaborating with the applicant to revive the DLHT application and the time-barred revision through the backdoor while the 2nd respondent failed to file the counter-affidavit. Four, he submitted that since the 1st respondent was legally joined to the Land case no.22 of 2010 through an amended Plaint filed on 8 August 2016 and responded filed amended WSD and counterclaim on November 2016, more than two months after the judgement of DLHT in application 8 No.29 of 2014. Then the filing of an amended plaint, the original

plaint ceases to exist. The same is when an amended WSD is filed inferring the end of the original WSD. He cited Morogoro Hunting Safaris Limited vs Halima Mohamed Mamuya, Civil Appeal. No. 117 of 2011; General Manager, African Barricka Goid Mine Ltd. vs Chacha Kiguha and 5 Others, Civil Appeal No. 50 of 2017; Sarbit Singh Bharya and Another vs. NIC Bank Tanzania Ltd and Another, Civil Appeal No.94 of 2017 and Tanga Hardware and Autoparts Ltd. and 6 Others vs CRDB Bank Ltd, Civil Application No. 144 of 2005 (all unreported). In Tanga Hardware and Autoparts Ltd (Supra), it was stated that; "... the previous written statement of defence which carried the counterclaim, ceased to have any legal effect as if it was never a part of the record." Therefore, he insisted that the previous pleading ceases to have any legal effect upon the amendment of a pleading. On merits, Mr. Mtuta submitted that the cited VIP Engineering (Supra is distinguishable because, in the cited case, the appellant and the responded were parties to the same suit for a breach of contract, while in this matter, the applicant was not a party at the DLHT in Land application 9 No.29 of 2014, and legally unknown to the 1st respondent. Therefore, the ex-parte judgment in the Land Application No. 29 of 2014 was legally obtained, and there was no fraud or misrepresentation. The issue of fraud was a mere allegation by the

applicant, who was not a party and had no proof. Mr. Mtuta narrated that in law, fraud could be alleged, but it needs to be seriously proved as per Francis Kidanga vs. Kilimanjaro Fast Ferries Ltd, Revision No. 668 of 2019, unreported (HC-Labour Division) He stated that in this matter, there was no proof of fraud or misrepresentation as alleged by the applicant. Therefore, the case cited by the applicant is inapplicable. On further submission, he stated that fraudulent misrepresentation and natural Justice raised_.by the applicant were neither raised nor determined by the DLHT; therefore, no new issues could be raised at this stage. To cement his argument, he cited Hasan Bundala Swaga vs. Republic, Criminal Appeal No.416 of 2014, which was cited with approval in the case of Mahaba Nyamhanga vs Masara Chacha Matiko, Land Appeal No.48 of 2019(Musoma), when it was observed that; io "It is now settled law that as a matter of general principle this court will only look o the matters, which came up in the lower courts and were decided and not new matters which were not raised nor decided by neither the trial court nor the high court on appeal. Therefore, he insisted that what was not raised during the trial tribunal hearing cannot be raised now. In conclusion, Mr. Mtuta raised two issues, one; the 1st respondent lawfully purchased the suit house from the 2nd respondent on 4

February 2004, and the applicant alleged that she also purchased the same suit house in 2007 from the 2nd respondent instead of buying it from the 1st respondent, so the applicant purchased the house already purchased by the 1st respondent because of her negligent of failure to make due diligence. Two, the applicant would not suffer irreparable loss because she never occupied or acquired the disputed house; therefore, the applicant had no right of colour concerning the ownership of the disputed house respondent. ii The applicant did not file the rejoinder. Having considered the chamber summons, its supporting affidavit, counter affidavit and the written submission made by the counsel for the parties, I will begin with the issues raised in the 1st respondent's submissions. I will start with the issue that this revision is still time bared despite being filed after it was allowed by the ruling for an extension of time. This should not detain me long for two reasons; one, I find it very strange for the advocate himself to submit that the applicant was granted an extension of time to file this application, but still he stated that the though extension granted by the revision is time-barred. If he was aggrieved with the decision which granted an extension of time, he was supposed to take necessary remedies (if any). Two, as alluded to earlier in the narration of this application

background, the applicant in Misc. Civil Application No.790 of 2018, dated 7 December 2021; she was granted 14 days to file an application for revision and filed this application on 17 December 2021; therefore, she was within time. From the discussion above, I find this issue to be an absurdity. On the issue that the matter has been overtaken by the event, and 12 the execution has already taken place and concluded, which has never been challenged to date, it also should not detain me long. The reason is that the finalisation of the execution proceedings is not a bar to subsequent proceedings such as appeal or revision; that is why even if there is a pending appeal, execution may proceed where there is no order of stay of execution. In Matsushita Electric Co (EA) Ltd versus Charles Genge t/a G.G Traders, Civil Appeal No. 71 of 2001, CAT (Unreported), it was held that; "I am of the considered opinion that once a notice of appeal is filed under Rule 76, then this court is seized of the matter in exclusion of the High Court except for application specifically provided for such as leave to appeal, provision for a certificate of point of law or execution where there is no order of stay from this court." That means if a party proceeded with execution to the finalisation, that should not be a bar for the later proceedings such as an appeal or revision. The completion of execution

proceedings cannot be a "shield to defend or a spear to attack"\v\ the subsequent proceedings, such as in this 13 application for revision. Therefore this issue is raised in misconception. The third issue is that the applicant preferred revision as an alternative to an appeal because the aggrieved party may appeal against the decisions of the High Court; such powers do not co-exist, and this is an appeal in disguise. First, it should be noted that the one who applied for revision is the applicant, not the 2nd respondent. The applicant was not a party in the DLHT, but she stated that she was affected by the decision of the DLHT because of the valid interest over the suit premises. Then, what is the procedure for challenging the court's decision for a person who was not a party to the prior proceeding but is aggrieved by the outcome? This is not a new phenomenon in our jurisdiction; the Court of Appeal in Chief Abdallah Said Fundikira vs. Hillal A. Hillal, Civil Application No. 72 of 2002, CAT at Dar Es Salaam (unreported), it was stated that it is settled law that the only recourse to a person who was not a party to the suit that has affected his interest is challenging that decision by way of revision. Also, this Court in Mariki Leon Mmasi and another vs. Aziz Mohamed Sood, Misc. Land Application No. 10 of 2017, Tanzlii (HC- Sumbawanga it was held that; 14 "First and foremost,

I understand that a third party or a person who was not a party to a suit but aggrieved by any outcome of proceedings of such suit, cannot seek redress or remedy by way of appeal, but rather by way of filing an application for revision". Therefore, the submission that this is like an appeal in disguise or the applicant was supposed to appeal to the Court of Appeal has no legs to stand. The recourse to person who was not a party to the suit that has affected his interest has to challenge that decision by way of revision. On the fourth issue, Mr. Mtuta submitted the filing of an amended plaint; the original plaint ceases to exist. The same is when an amended WSD is filed inferring the end of the original WSD. I agree with that position, but he "left his argument on air hanging". He did not explain what he intended in his submission on that issue to support his submission to counter the application for revision. But, by the way, the amendment of pleadings does not affect the presence of the suit. I think on this issue; I will end and hold that the issue is frivolous. On merits, having gone through the pleadings and submissions from the counsel, the matters which put the applicant and the 1st respondent at 15 issue are; i. whether the DLHT exparte judgment obtained by the 1st respondent was obtained through fraudulent misrepresentation of facts in a sense that; a. while 1st

respondent while knowing that he was a party to the original case and his counter claim were still pending to this court, he filed another similar case like his counter claim to the DLHT, b. the 1st applicant in the proceedings at the trial tribunal he never disclosed or he concealed the pendency of the original case and his counter claim to this court involving the same subject matter and parties. c. the 1st respondent while knowing that the applicant bought the suit house from the 2'd respondent and therefore she had an interest to that house, but he only sued the 2Ki respondent to the trial tribunal and leaving the applicant ii. Whether the applicant was condemned unheard. As indicated earlier, the applicant filed the applicant lodged a land case in this Court, i.e., Land Case No. 22 of 2010, against the 2nd respondent and another person by the name of Agnes Kituta, for a 16 declaration that she was the lawful owner of Plot No. 347, Block 46, Kijitonyama Area. Then the 1st respondent requested to be joined as a party in that suit, and his prayer was granted on 11 April 2011, and he became the third defendant by filing the written statement of defence and the counter claim. When the suit was still pending, the 1st respondent lodged an application at the DLHT (Application No. 29 of 2014) against the second respondent, prayed to be declared as the lawful purchaser for value of

the same property, i.e., Plot No. 347 Block 46, Kijitonyama area. On 29 August 2016, the DLHT decided the application in favour of the 1st respondent was declared as a lawful of the suit premises after the matter proceeded ex- pa rte. When I ventured into the DLTH records, the parties were the lsl respondent against the 2nd respondent. Therefore, there is no evidence that either the applicant was a party or she was notified of the presence of the application at the DLHT. Mr. Mtuta submitted that the applicant was legally unknown to the lsl respondent. That is incorrect because they were the parties at the High 17 Court in Land Case No. 22 of 2010 before the 1st respondent filed Application No. 29 of 2014 at the DLHT over the same suit property. When he filed the matter at the DLHT in 2014, he was already granted leave to file his defence in Land Case No. 22 of 2010 on 11 April 2011. Further, the record of the DLHT did not indicate if the 1st respondent disclosed the pendency of the Land Case No 22 of 2010, which he had already filed his defence and counter claim involving the same subject matter and parties. From the above narration and discussion, I find that the 1st respondent, while knowing that he was a party to Land Case No. 10 of 2022 and his counter claim were still pending to this court, filed another similar case like his counter claim at the DLHT He did not also

disclose at the DLHT the pendency of that pending case. Flowing from above, I have the following; One, because the applicant indicated valid interest over the suit property, therefore, if the 1st respondent decided to file another suit over the same subject matter, he was supposed to join her as the necessary party. 18 In Abdullatif Mohamed Hamis vs. Mehboob Yusuf Osman and another, Civil Revision No. 6 of 2017 (Tanzlii), the Court of Appeal held that; "The determination as to who is a necessary party to a suit would vary from case to case depending upon the facts and circumstances of each particular case. Among the relevant factors for such a determination include the particulars of the non-joined parties, the nature of the relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed. "[Emphasis provided] From the circumstances and facts of the matter, the applicant was supposed to be joined at the DLHT because of the interest over the suit premises for the reason that she also alleged that she lawfully purchased the suit premises from the 2nd respondent, the same as the Is’1 respondent alleged. Two, an act of the 1st respondent to deny the applicant an opportunity of being heard and a fair trial while she also had a valid interest over the 19 suit property has an effect. In our laws, it is trite that the right to be heard is not

only a constitutional right but also a rule of natural justice. On this, the Court of Appeal in Mwajuma Bakari (Administratrix of the Estate of the Late Bakari Mohamed) vs. Julita Semgeni and another, Civil Appeal No. 71 of 2022, held that; "Giving a party a sufficient opportunity to be heard is consistent with the principles of fair hearing as envisaged under article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, as amended from time to time. The said article directs that, when rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to among others, a fair and full hearing". Further, the effect of the failure to accord the right to be heard to the parties vitiates the entire proceedings and causes the resultant decision a nullity. See Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No. 161 of 2016 (Tanzlii). On the way forward, since there was a non-joinder of the necessary party and denial of the right to be heard on the part of the applicant, and taking into consideration that the dispute was first filed in the year 2010, I 20 take a similar route as the Court of Appeal in Nuta Press vs. Mac Holdings, Civil Appeal No. 80 of 2016 (Tanzlii) but with a slight change to fit the circumstances of this matter. I revise the Tribunal proceedings and the Judgment of the DLHT for Kinondoni

by ordering; i. The proceedings in Land Application No. 29 of 2014 are quashed, and the ex parte Judgment and decree are set aside. ii. The case file be remitted to the DLHT, and pleadings amended to include the applicant and heard before another Chairman and a new set of assessors. iii. Since the matter is a long-standing one, it should be expedited. Consequently, the application for revision is granted with costs. It is so ordered.

JUDGE 23/06/2023 21