Misc

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 10777 OF 2024 {Arising from Misc. Land Application No. 26244 of2023) ALBERT JOSEPH MLAY (Administrator of the Estate of the Late JOSEPH MICHAEL MLAY)........... 1st APPLICANT FLORA J. KESSY................................................................ 2nd APPLICANT

VERSUS GODWIN ZARUBABELI SHAO............................................ RESPONDENT

RULING 04/6/2024 & 26/6/2024 A. MSAFIRI, J: This is an application for Review of the decision of this Court in Misc. Land Application No. 10777 of 2024. It has been brought under Section 78(1) (b) and Order XLII Rule 1 (b) and 3, Section 3A(1),(2), and Section 3B (l)(a) (b) (c) all of the Civil Procedure Code, Cap 33 R.E. 2019, [The CPC]. In the said Application, the current applicants were also the applicants and was seeking for interim orders to restrain the respondent from doing anything on the suit property pending the main suit. After hearing, the said application was dismissed with costs for failure of meeting the criteria ji i p set for the issuance of temporary injunction, m I L i After dismissal, the applicants have filed this application seeking for Review of the court decision on the following grounds; 1. That there is a pending case in a court which the applicants prayed for court injunction. However, the court found that, no sufficient grounds advanced for granting injunction. After the said ruling of the court, the respondent is selling the property in dispute and in which the case is pending at the High Court. Unless the court take an action to prohibit this evil action at the selling of the property, the case pending in this Honourable court will have no meaning and when the judgment will be out, the saidjudgment will be overtaken by event and applicants will

lose more than the respondent. They pray for the orders that; the review be granted, costs of the application, any other relief as this court thinks fit to grant. The application was heard orally and the applicants were represented by Ms.Batilda Maliy, learned advocate for the applicants and Mr. Maganga Nickson, learned advocate appeared for the respondent. In support of the application, Ms Maliy submitted that previously the applicants filed an application for temporary injunction but it was not granted because they did not fulfil the conditions necessary for the granting of the prayer. That, the court's decision of refusing the prayer for temporary injunction was not a problem to the applicants as it was according to the law hence 2 they agreed with the said decision. Therefore, to the applicants, the court did not error in its decision. She averred that, however, the problem arose after the ruling of this court whereby the respondent has taken advantage of the said ruling and while the main case is pending in court, the respondent has started selling piece by piece of the disputed property. That the applicants believes that it is not proper for the respondent to sell the disputed property while there is main case pending in court over the same subject matter. Ms Maliy submitted further that, the applicants believe that this court being the court of justice, has the power to

ensure that justice is done to all parties. That, in the circumstances, the applicants prays under Section 3A of the CPC for the court to invoke the principle of overriding objective and review its decision of 17/4/2024 in Application No.26244 of 2023. Since the respondent is selling the disputed land, as the main case is still pending, then the case will be meaningless and nugatory as there will be nothing to decide upon as the dispute property will all be sold off by the respondent no longer be existing as the same will be already sold off by the respondent. She prayed for the application to be granted with costs. Af J 3 In reply, Mr Nickson submitted that, the application before this court is incompetent under Section 78(2) of the CPC. This application before the court emanates from the decision of temporary injunction application. The ruling from the said application is an interlocutory order as it did not finalize the matter since the main case is pending before this court. He said further that, the counsel for the applicants has admitted that the ruling of this court of 17/4/2024 is not appealable. That the counsel for the applicants has admitted also that in the application for injunction, the applicants did not meet the mandatory conditions necessary in such application. Therefore there is no way the court can review its own decision. Mr Nickson argued that the

submission that the respondent is selling the disputed property is mere speculation and has no proof. Even if there was proof, the applicants still have chance to claim when the main case will come to its finality. Therefore this application is frivolous, vexatious and abuse of court process and should be dismissed with costs. In rejoinder, Ms Maliy reiterated her submissions in chief and referred the court to Order XLII Rules 1(b) and 3 of the CPC to review this application. She said that the counsel for the respondent has admitted that the applicants' facts are speculations. She was of the view that the speculation - 4 does not need evidence. That this is the High Court which is the court which interpret the law. The respondent cannot sell the disputed property while the matter is pending in the court. If the court waits until the end of the main case, then there will be many disputes over the sit land which will be caused by the acts of the respondent to sell off the suit land to other third parties who are unaware of the dispute pending in court. She reiterated her prayers. Having heard the submissions from the parties, it is no dispute that this court under Section 78 (1) of the CPC is empowered to receive and entertain an application for review of its decision. The criteria to be considered are provided under Order XLII Rule 1 of the CPC are as provided thus; the court

may review its decision in the following scenarios; i) When there is a discovery of new and important matter or evidence which after exercising due diligence was not within the knowledge or could not be produced by the applicant at the time when the decree was passed or order made, or; ii) On account of some mistakes or error apparent on the face of the record, or for any the sufficient reason, desires to obtain review of the decree passed or order made against him, may apply for a review ofjudgment of the Court which passed the decree or made the order. The pertinent issue here is whether this application has merit. In his submission, the counsel for the respondent has argued that the; application before this court is incompetent under Section 78(2) of the CPC. He said that the application emanates from the decision of temporary injunction application. The ruling from the said application is an interlocutory order as it did not finalize the matter since the main case is pending before this court. In replying this point, Ms Maliy has argued back that and referred the court to Order XLII Rules 1(b) and 3 of the CPC which is enabling provision for this application. Section 78(2) of the CPC provides that; 78(2) Notwithstanding the provisions ofsubsection (1) and subject to subsection (3), no application for review shall He against or be made in respect of any preliminary or

interlocutory decision or order of the Court unless such decision or order has the effect of finally determining the suit (emphasis added). Was the decision in Misc. Application No. 26244 of 2023 which was delivered on 17/4/2024 has the effect of finally determining the suit or is it an interlocutory order? Misc. Application No. 26244 of 2023 was the application for interim injunction where the applicants were seeking to restrain the respondent from doing any act over the disputed property pending the hearing and determination of the main case. As it was correctly submitted by the counsel for the applicants, the same failed to meet the three conditions 6 which are mandatory for the court to exercise its discretion and grant the sought interim orders. The application was dismissed. Did the order of the dismissal finally determine the rights of the parties? In determining this important test, beside the provisions of Section 78 (20 of the CPC, I will also be guided by the decision of the Court of Appeal in the case of Murtaza Ally Mangungu vs The Returning Officer of Kilwa North Constituency & Others, Civil Application No. 80 of 2016, CAT at DSM. In the cited case, among other things while defining what is an interlocutory orders, the Court of Appeal adopted the "nature of order tesf/zwhich was set in the case of Bazson vs Attrinchan Urban District Council (1903, 1KB 948) where

it was tested that; "...does the judgment or order as made, finally dispose of the rights of the parties? If it does then... it ought to be treated as a final order, but if it does not it is then... an interlocutory order," Guided by the above principle, I find that the decision of this court in Misc, Application No. 26244 of 2023 was not final determination of the matter as there is main case between the disputing parties which is Land Case No 25974 pending before this court. It is this main case which has the effect of determining the rights of the parties and bring the matter to its 7 finality. The application for temporary injunction does not finally determine the suit and therefore does not determine the rights of the parties. I find that the order in Misc. Application No. 26244 of 2023 is an interlocutory order which is not subject for review as provided under Section 87(2) of the CPC. This application is therefore incompetent and it is hereby dismissed with costs. A.MSAFI

JUDGE 26/6/2024 8