ASA vs MAX draft final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF DAR ES SALAAM

AT DAR ES SALAAM CIVIL APPEAL NO. 584 OF 2025 ASA MBULAJA MWAIPOPO…………………………………....……...….APPLICANT

VERSUS LEE BARNABAS MAX (ZAYDAR MOHAMED MAX) ……….... 1ST RESPONDENT MICHAEL SIMBA ………………………………….……..…….…. 2ND RESPONDENT (Appeal from the ruling of the District of Kinondoni at Kinondoni dated 10th December 2024 in Civil Application no. 7178 of 2024)

JUDMENT 13th March and 4th April 2025 KISANYA, J.: This appeal challenges the ruling of the District Court of Kinondoni (henceforth “the District Court”) which dismissed the appellant's application for an extension of time to file a revision against the proceedings, judgment, and execution of Civil Case No. 225 of 2021 before the Kawe Primary Court (henceforth “the trial court”). Before the District Court, the appellant asserted that he was a bona fide purchaser of a house situated on Plot No. 91, Block H, Mbezi Area, Kinondoni Municipality, Dar es Salaam Region (henceforth “the house”. It was further claimed that the house in question had been sold 1 to Benjamin Joseph as a result of an execution process following a decree requiring the 2nd respondent to pay the 1st respondent TZS 50,000,000/= for a debt claim or breach of contract. The execution also involved two other decrees in Civil Case No. 223 of 2024 and Civil Case No. 224 of 2024, where the 1st respondent was ordered to pay Zaydar Mohamed Max TZS 32,000,000/= and TZS 20,000,000/=, respectively, on similar grounds. The appellant sought an extension of time to file a revision primarily on the basis of alleged illegality in the proceedings and judgment that led to the execution. The District Court, however, dismissed the application on the reasons that the Appellant had failed to show sufficient cause for the delay in

filing the revision. Dissatisfied with the ruling, the appellant seeks to overturn it, arguing that the District Court erred in both law and fact. For reasons that will become apparent later in this judgment, I find no need to elaborate on the specific grounds of appeal. As the hearing progressed, I called upon both parties to address the issue of the competence of the matter before the District Court, specifically on the following points: First, if the application sought to 2 challenge the judgment and decree of the trial court, whether the applicant had the necessary locus standi to apply for an extension of time to file a revision, considering that they were not a party to the trial proceedings. Second, if the application was intended to challenge the execution proceedings, whether revision was the correct legal remedy and whether the buyer of the disputed house should have been joined as a necessary party. Furthermore, I granted the parties' request for the appeal to be disposed of by way of written submissions and set a filing schedule. Despite this, only the appellant and the 1st respondent adhered to the schedule and filed their submissions accordingly. Given the 2nd Respondent’s failure to submit written submission, it is deemed as a non-appearance at the hearing. Consequently, this is an ex-parte judgment against the 2nd Respondent. At this point, I shall proceed to

address the issues raised by the Court regarding the competence of the application before the District Court, as it has a bearing on this appeal. The first issue for determination is whether the purchaser of the house was a necessary party to the application for an extension of time 3 to file a revision against the execution proceedings. Mr. William Yohana Fungo, learned Counsel for the Appellant, submitted that the purchaser did not need to be joined as he was not a party to the original suit. To substantiate this argument, he relied on Salim Amour Diwani vs. The Vice Chancellor Nelson Mandela African Institution of Science and Technology & 2 Others (Civil Application No. 116/01 of 2021) [2023] TZCA 33 and Tanzania Portland Cement Public Limited Company vs. Christopher Eliud Chambo & 3 Others (Civil Appeal No. 85 of 2023) [2023] TZHC 21835 (9 October 2023). In the latter case, the Court of Appeal underscored that parties in legal proceedings should, as a rule, remain as they were in earlier proceedings unless a valid reason for change is presented and the court grants leave. On his part, Mr. Paul Patience Hyera, learned Counsel for the 1st respondent contended that the failure to join the purchaser constituted a fatal flaw, as it denied the buyer the right to be heard. He cited the cases of Mbaruku Ally Kasese & Others v. Zulfikar Mustaali Essaji & Others (Land Case No. 16 of

2021, Tanga) and Juma Kadala v. Laurent Mnkande [1983] TLR 103 to support his argument. 4 It is trite law that a necessary party is one whose presence is required for a suit to be properly constituted, ensuring the validity and enforceability of any judgment. As stated in Abdulatif Mohamed Hamis v. Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25, the determination of a necessary party depends on the unique facts of each case, considering their involvement in the dispute, the relief sought, and whether their absence would impede the effective execution of the judgment. In light of this position, I am of the view that while the purchaser holds an interest in the house, he was not a necessary party in the application for an extension of time to file a revision. This is because there is no indication that his absence would obstruct the execution of the ruling for the extension to file revision. Moreover, if the extension is granted, the purchaser's role can be examined in the context of the revision proceedings. Therefore, I am satisfied that the matter before the District Court cannot be considered incompetent solely due to the failure to join the purchaser of the house in question. The next issue to address is whether seeking revision was the proper remedy for the appellant's challenge to the execution 5 proceedings. Mr. Fungo appeared to be aware of

Rule 85(1)(a) and (b) of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, 1964 (hereinafter "the Rules"), which set out the procedure for challenging the sale of immovable property. However, he argued that this Rule does not provide an adequate remedy for the appellant, as he was unaware of the proceedings in the Kawe Primary Court until after the judgments and attachment orders had been executed. The learned Counsel maintained that revision was the only appropriate remedy to protect the appellant’s rights, given the circumstances. He drew upon the case of Victor Rweyemamu Binamungu vs Geofrey Kabaka & Another (Civil Application No. 602 of) [2020] TZCA 290 (10 June 2020) to substantiate his argument. Mr. Hyera, however, argued that the appellant’s pursuit of revision was misplaced. Citing Rule 85(1) of the Rules, he emphasized that the appellant should have applied to set aside the sale within 30 days, provided there were grounds such as fraud, irregularity, or the judgment debtor’s lack of saleable interest in the property. The learned Counsel contended that the appellant’s attempt to seek an extension of time for revision was premature, as it should have followed a request to set aside the sale. He further argued that if the 30-day period had expired, 6 the appellant should have pursued other legal remedies, such as filing a lawsuit against the

respondents. After considering the arguments from both sides, I agree with Mr. Hyera’s assertion that Rule 85(1)(a) and (b) of the Rules gives the primary court the power to annul the sale of immovable property if there is evidence of fraud, irregularity, or if the judgment debtor does not have a saleable interest in the property. Therefore, if the appellant's grievance pertains to the execution process, the appropriate remedy would have been to apply to set aside the sale before the trial court. Nevertheless, I have also taken into consideration the settled legal principles in cases like Kalebu Kiboja Mjinja vs Shadrack Daniel Tembe (Civil Appeal 24 of 2020) [2021] TZHC 2048 (28 January 2021), which allow for revision or initiating a suit regarding execution proceedings. In this context, I am convinced that the matter before the District Court cannot be deemed incompetent simply because the applicant did not use the recourse provided by the Rules. I now revert to the initial issue, whether the appellant had locus standi to challenge the judgment and decree of the trial court. Mr. Fungo argued that as a bona fide purchaser with an interest in the 7 property, the appellant had standing to seek revision. On the other hand, Mr. Hyera argued that the appellant had no locus standi, as he wasn’t a party to the original case. He referred to Johnsen Elias v. Paskarates Pascal, Misc.

Land Appeal No. 53 of 2019, High Court at Bukoba (unreported), where this Court highlighted that the principle of locus standi restricts the rights and duties of parties involved in a case. It is specifically for individuals whose legal rights have been infringed or who have sustained distinct legal harm, enabling them to initiate legal action to safeguard their interests. Upon considering the arguments, I find guidance in the Court of Appeal’s decision in Hossea Kihwelo & Others vs. Abdallah Ramadhani Mkumba (Civil Revision No. 347 of 2018) [2022] TZCA 549, which affirmed that execution proceedings cannot be used to challenge or quash a judgment. To challenge the judgment, one must pursue an appeal or revision before a higher tribunal. Based on this legal precedent, the trial court’s judgment was not open to challenge in either the execution proceedings or the subsequent revision from the execution proceedings. 8 Regarding the revision of the proceedings and the resulting judgment, I concur with the appellant’s Counsel that a third party who was not involved in the original proceedings may, in fact, file for revision. There is sufficient legal precedent, notably in the cases of Victor Rweyemamu Binamungu, (supra) and Amani Mashaka (Applying as the Administrator of the Estate of Mwamvita Ahmed, Deceased) vs. Mazoea Amani Mashaka & Others, Civil Application No. 124 of 2015

[2016] TZCA 2358 (3 February 2016), that supports this position. However, this does not mean that anyone can file for revision. A third party must show a legitimate interest in the outcome of the proceedings or judgment he wishes to challenge through revision. This stance is further supported by the case of Amani Mashaka (supra), where the Court of Appeal referred to its earlier decisions in Augustine Lyatonga Mrema vs. R, Criminal Appeal No. 61 of 1999 and Halima Hassan Marealle vs. Parastatal Sector Reform Commission & Another, Civil Appeal No. 84 of 1999 (both unreported), where was held that: "It is apparent that the provision of section 4(3) of AJA seeks to ensure that this Court has the power to rectify errors, illegalities, and improprieties in decisions or proceedings of the High Court which come or are 9 brought to its attention. Thus, this court may be moved in revision by a third party who say, has an interest in the matter..."' In this case, the appellant was not a party to the judgment for which revision would be sought if the extension is granted. Notably, the impugned judgment concerned a debt claim between the 1st and 2nd respondents, and not the house that the appellant claims to have purchased from the 2nd respondent. Furthermore, the judgment was issued in 2021, prior to the appellant's purchase in 2023. In these circumstances, I find that the appellant has

no locus standi to challenge the trial court's judgment on the grounds of illegality, as stated in the supporting affidavit. As established in Robert Kadaso vs Republic, Criminal Appeal No. 476 of 2023 [2002] TZA 17504 (18th August 2023), an extension of time cannot be granted when the remedy sought is legally barred. Therefore, since the appellant lacked locus standi to challenge the impugned judgment, the application before the District Court was incompetent, which in turn renders this appeal untenable. Exercising this Court’s revisional powers, I hereby nullify the District Court’s proceedings, quash its ruling, and strike out this appeal. 10 However, the appellant or any interested party remains free to pursue an appropriate legal remedy. Since the appeal has been resolved on the basis of an issue raised by the Court, no order as to costs is issued. DATED at DAR ES SALAAM this 4th day of April 2025. S.E. KISANYA

JUDGE Delivered through virtual court system this 4th day April, 2025 in the presence of Mr. Paul Hyera, learned Advocate for the 1st respondent and Ms. Zawadi (RMA) and in the absence of the applicant and the 2nd respondent. Right of appeal is explained. S.E. KISANYA

JUDGE 04/04/2025 11