ASA vs Zaydar

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

AT DAR ES SALAAM CONSOLIDATED CIVIL APPEAL NOs. 577 AND 583 OF 2025 ASA MBULAJA MWAIPOPO…………………………………....……...….APPLICANT

VERSUS ZAYDAR MOHAMED MAX …………………………….…………...1ST RESPONDENT MICHAEL SIMBA ………………………………….……..…….…. 2ND RESPONDENT (Appeal from the rulings of the District of Kinondoni at Kinondoni dated 10th December 2024 in Civil Applications Nos. 7179 and 7180 of 2024)

JUDMENT 13th March and 4th April 2025 KISANYA, J.: This is consolidated appeal in Civil Appeals No. 577 and 583 of 2025, filed by Asa Mbulaja Mwaipopo, the appellant, challenging the rulings of the District Court of Kinondoni at Kinondoni (the District Court) in Civil Applications Nos. 7179 and 7180 of 2024. In the impugned rulings, both dated December 10, 2024, the District Court dismissed the appellant's applications for an extension of time to file a revision against the decision of the Primary Court of Kawe in Civil Cases Nos. 223 and 224 of 2021, on the ground of meritlessness. 1 The brief facts of the case, as gleaned from the record, are as follows: Before the Primary Court of Kawe at Kawe, the 1st respondent, Zaydar Mohamed Max sued the 2nd respondent, Michael Simba in two separate cases, both arising from a breach of contract entered into between them on June 29, 2020. The first case, registered as Civil Case No. 223 of 2021, involved a claim of TZS 20,000,000 and USD 14, while the second case, registered as Civil Case No. 224 of 2021, involved a claim of TZS 32,000,000. Upon the 2nd respondent admitting to the 1st respondent’s claims in both cases, judgments on admission were entered against him on December 14, 2021. In addition, the 2nd respondent conceded to another claim of TZS 50,000,000 in Civil Case No. 225 of 2021, which was initiated by Lee Barnabas Max, who

had given the appellant a power of attorney to act on his behalf. During the execution of the three judgments, the 2nd respondent’s house, situated on Plot No. 91, Block H, Mbezi Area, Kinondoni Municipality, Dar es Salaam Region (the house), was sold to Benjamin Joseph on August 16, 2024. Claiming an interest in the said property as a bona fide purchaser and occupier from May 29, 2023, the appellant filed two applications for 2 an extension of time to lodge a revision against the trial court’s judgments in Civil Cases No. 223 and 225 of 2021. These applications, filed on September 13, 2024, were registered as Misc. Civil Applications No. 7180 of 2024 and 7179 of 2021, respectively. The appellant contended that the proceedings and judgments of the Primary Court were tainted with illegalities. The appellant’s efforts were unsuccessful. Upon examining the applications, the District Court found that the appellant had failed to establish sufficient grounds for an extension of time to file a revision. Consequently, both applications were dismissed for lack of merit, with costs. Dissatisfied with the outcome, the appellant filed two appeals, Civil Appeal No. 579 of 2025 and Civil Appeal No. 583 of 2025, before this Court, challenging the rulings of the District Court in Misc. Civil Applications No. 7180 of 2024 and 7179 of 2021, respectively. The memoranda of appeal in both cases outline six grounds on which the appellant challenges each impugned ruling, which can be rephrased as follow: 1. The Magistrate failed to consider that the decision in Civil Case No. 223 of 2021 was tainted with serious illegalities 3 and irregularities, which were sufficient grounds for granting an extension of time.

2. The Magistrate erred in dismissing the application without considering that Civil Case No. 223 of 2021 was res sub- judice to Cases No. 224 and 225 of 2021 and that the judgment and decree were res judicata to the latter cases, as they involved the same parties and cause of action.

3. The Primary Court of Kinondoni at Kawe lacked pecuniary jurisdiction to adjudicate the case, as the total disputed amount was TZS 102,200,000, exceeding the court’s jurisdictional limit of TZS 30,000,000. The amount was unlawfully divided into three separate cases to circumvent the jurisdictional threshold.

4. The Magistrate failed to analyze the available evidence and erroneously dismissed the application, disregarding that illegality is a sufficient ground for an extension of time, even without accounting for each day of delay.

5. The Magistrate failed to recognize that splitting Civil Cases No. 223, 224, and 225 of 2021 into portions to meet the pecuniary jurisdiction requirement amounted to malpractice and an abuse of the court process.

6. The Magistrate wrongly held that the applicant failed to account for each day of delay, despite the presence of obvious illegalities in the case. When the matter came up for hearing on March 13, 2025, the appellant was represented by William Fungo, learned Advocate, while 4 the 1st and 2nd respondents were represented by Messrs. Paulo Hyera and Johnson Msangi, both learned Advocates. The Court, acting on the parties' counsel's request, ordered that the hearing would be held through written submissions and issued a schedule for the filing of said submissions. Given the background of this matter, the Court instructed both parties to address the following issues revolving around the competence of the matter before the District Court: One, if the application sought to challenge the judgment and decree of the trial court, whether the applicant had the requisite locus standi to apply for an extension of time to file a revision, considering they were not a party to the trial proceedings. Two, if the application was aimed at challenging the execution proceedings, whether an application for revision was the proper legal recourse and whether the buyer of the disputed house ought to have been joined as a necessary party. Considering that both appeals involve the same parties, present similar grounds, issues and arguments, and claim that the cases before the trial court were sub-judice

to each other, I found it appropriate to consolidate them into Consolidated Civil Appeals Nos. 577 and 583 of 2025, with Civil Appeal No. 577 of 2025 serving as the controlling case. 5 It is noteworthy that the appellant and the 1st respondent were the only parties to file their respective written submissions, while the 2nd respondent failed to do so. Consistent with the established legal principle that failing to file written submissions is treated as non- appearance at the hearing, this judgment is rendered ex-parte against the 2nd respondent. Considering that the issues raised by the Court are centered on the competence of the application before the District Court and, by extension, the competence of this appeal, they will be addressed first. First for consideration is the second part of the second issue, whether the purchaser of the house was a necessary party to the application for an extension of time to file a revision against the execution proceedings. Mr. Fungo argued that only parties to the original suit could be included in the revision proceedings. To support his argument, he cited the cases of 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 6 2023) [2023] TZHC 21835 (9 October 2023). Therefore, he argued that there was no basis to join the purchaser as a party, as he was not part of the original suit. Conversely, Mr. Hyera submitted that the failure to join the purchaser was a fatal irregularity because it denied him right to be heard. He referred the Court to the cases Mbaruku Ally Kasese & Others v. Zulfikar Mustaali Essaji & Others (Land Case No. 16 of 2021, Tanga) which cited with approval another case of Juma Kadala v. Laurent Mnkande [1983] TLR 103 to reinforce his stance. It is an established principle that a necessary party is one essential to the proper constitution of a suit, without whom no enforceable decree or order can be issued. In Abdulatif Mohamed Hamis vs. Mehboob Yusuf Othman & Another (Civil Revision No. 6 of 2017) [2018] TZCA 25 (1 August 2018), the Court of Appeal reaffirmed this position, holding further that the determination of a necessary party depends on the specific facts of each case. This includes their role in the dispute, the relief sought, and whether their absence would impede the execution of a judgment. 7 Applying this principle to the present case, the Court holds that, in the context of an application for an extension of time to file a revision, the purchaser of the house, despite having an interest in the property, was not a necessary party. This conclusion is based

on the absence of any indication that his absence would impede the execution of the ruling or hinder the granting of the extension. Besides, the question of whether the purchaser is a necessary party may still be addressed in the revision proceedings if the extension is granted and he is not joined. On that basis, the issue is decided in the negative. Next, the Court turns to the first part of the second issue; whether the intended revision was the proper remedy for the appellant's challenge to the execution proceedings. Mr. Fungo argued that Rule 85(1)(a) and (b) of the Magistrates' Courts (Civil Procedure in Primary Courts) Rules, GN No. 310 of 1964 (the Rules) does not provide an sufficient remedy for the appellant. He explained that the appellant was not aware of the proceedings in the Kawe Primary Court until after the judgments and attachment orders had been issued and executed. Mr. Fungo contended that, since the matter had already been finalized at the primary court level, revision was the only viable remedy to protect the appellant's rights. To support his position, he referenced the case 8 Victor Rweyemamu Binamungu vs Geofrey Kabaka & Another (Civil Application No. 602 of) [2020] TZCA 290 (10 June 2020), where the Court of Appeal held that: “…the fact that the applicant did not feature as a party in the proceedings intended to be revised, rather than being a

hindrance, does not qualify him to make that application because it is settled law that such a person may not impugn the decision otherwise than by way of revision…” Conversely, Mr. Hyera submitted that the appellant’s pursuit of revision was inappropriate. He pointed out that, under Rule 85(1) of Rules, the appellant should have applied to set aside the sale within 30 days if there had been fraud, irregularity, or if the judgment debtor had no saleable interest. The learned Counsel argued that the appellant had prematurely sought an extension of time for revision instead of applying to set aside the sale. He further contended that if the deadline to set aside the sale had lapsed, the appellant should have explored other legal remedies, such as instituting a case against the respondents. At the outset, Rule 85(1)(a) and (b) of the Rules referred to by both parties stipulates: 9 85(1) on application made within thirty days by any person affected or of its own motion, the court may set aside a sale of immovable property if it is satisfied– (a) that there has been fraud or material irregularity in the proceedings leading up to, or in the conduct of, the sale; or (b) that the judgment debtor had no saleable interest in the property sold: Provided that no sale shall be set aside unless the judgment-creditor, the judgment debtor, the purchaser and any other person affected have been

given an opportunity to be heard and produce evidence. (2) For the purpose of satisfying itself as to any matter for the purposes of this rule, the court may summon and examine any person and require him to produce any document in his possession relating thereto. (3) Where a sale has been set aside under this rule, the purchaser shall be entitled to receive back any moneys paid by him.” As can be seen from the above provision, the primary court has the authority to set aside the sale of immovable property upon receiving an application within 30 days from an affected person, or acting on its own initiative. However, for the sale to be set aside, the primary court must establish that there was fraud, a substantial irregularity in the 10 process, or that the judgment debtor did not possess a saleable interest in the property. In light of the foregoing, I agree with the Mr. Hyera that, if the appellant’s main concern was to challenge the execution proceedings, particularly the sale of the house, on the ground that the 2nd respondent (judgment debtor) lacked a saleable interest in the property, the appropriate procedure would have been to file an application to set aside the sale before the trial court. However, this was not the only avenue open to the appellant. As held in Kalebu Kiboja Mjinja vs Shadrack Daniel Tembe (Civil Appeal 24 of 2020) [2021] TZHC 2048 (28 January 2021), a

person aggrieved by execution proceedings or an execution order may apply for revision or file a suit concerning the execution process. Consequently, the Court finds that the application before the District Court cannot be deemed incompetent solely because it sought an extension of time to file a revision challenging the execution proceedings. Addressing the first issue regarding the appellant’s locus standi to contest the judgment and decree of the trial court, Mr. Fungo maintained that the appellant had the required standing. He argued that 11 the appellant was a bona fide purchaser of the house, had a legitimate interest in it, and took vacant possession on May 29, 2023. In reply, Mr. Hyera contended that the appellant lacked locus standi to file an application for an extension of time to seek revision. He contended that the appellant had no legal interest in Civil Cases No. 224 and 223 of 2021 at the time of purchase, as the property had already been attached by the court on July 20, 2022, and the attachment remained in force. In support of his contention, he referred to Johnsen Elias vs. Paskarates Pascal, Misc. Land Appeal No. 53 of 2019, High Court at Bukoba (unreported), in which this Court underscored the principle that a party must establish that their legal rights have been impacted to have locus standi in initiating legal action. After thoroughly considering the

parties' submissions, the Court notes that in Hossea Kihwelo & Others vs. Abdallah Ramadhani Mkumba, Civil Revision No. 347 of 2018 [2022] TZCA 549 (30 August 2022), the Court of Appeal stressed that a court judgment cannot be quashed unless there is an appeal or revision before a superior tribunal. The Court of Appeal held: 12 “... a judgment of a court cannot be quashed in an execution proceeding. There should be an appeal or revision before the higher tribunal.” Applying this principle, the Court holds that a judgment and decree cannot be quashed in execution or revisional proceedings arising from execution. Consequently, the District Court could not extend the time for filing a revision against the execution proceedings to challenge the trial court’s judgment and decree. In the instant case, Mr. Fungo asserted, and the supporting affidavit confirms, that the appellant intended to challenge the trial court’s judgment and decree as a nullity, on the basis of lack of pecuniary jurisdiction, among other grounds. While the Court acknowledges, as underlined in 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 revision is an available remedy for individuals who were not part of the original

decision, this right does not extend to every third party or stranger to the case. Such a third party must show a sufficient legal interest in the proceedings, judgment, or 13 decree they seek to challenge through revision.This stance is derived from the precedent 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), cited with approval in Amani Mashaka (supra), when the Court of Appeal held: "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 brought to its attention. Thus, this Court may be moved in revision by a third party who say, has an interest in the matter..." (Emphasize supplied). In the court’s view, the bolded phrase suggests that a third party in revision proceedings must point out a legitimate interest in the case or judgment being contested, thereby establishing their locus standi for filing the revision application. Turning to the case at hand, it is undisputed that the appellant was not a party to the proceedings that resulted in the trial court’s judgment and decree, for which extension for revision was sought before the District Court. However, the supporting

affidavit does not 14 show that the appellant had any interest in the judgment and decree he intended to challenge for alleged illegality. This view is taken because the underlying dispute was between the 1st and 2nd respondents over a debt or breach of contract, with no connection to the appellant. Furthermore, the judgment the appellant intended to challenge has no connection to the house he claims to have purchased from the 2nd respondent on May 28, 2023. As such, the appellant had no vested interest in the judgment delivered on December 14, 2021, as it was entirely unrelated to the house he purchased from the 2nd respondent. In the absence of an established legal interest in the proceedings and resulting judgment, the appellant was barred from filing a revision. The legal principle reaffirmed in Robert Kadaso vs Republic, Criminal Appeal No. 476 of 2023 [2002] TZA 17504 (18th August 2023), is that an extension cannot be granted where the remedy sought is barred by law. Consequently, the Court holds that the application before the District Court was incompetent, which in turn affects the proceedings before it and this appeal. In the exercise of its revisional powers, the Court hereby nullifies the District Court’s proceedings and quashes its ruling. As a result, this 15 appeal arising from those proceedings and ruling is struck out. The appellant or any other interested party remains at liberty to pursue an appropriate course of action in accordance with the law. Given that the appeal is resolved on the issue raised by the Court, each party shall bear its respective cost. 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 to the parties. S.E. KISANYA

JUDGE 04/04/2025 16