ASIA SHABANI VS JUMA RAJABU 22222222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND REVISION NO. 10778 OF 2024 (Arising from Land Appeal No. 234 of2024 of the High Court of (T) Manyara Sub-registry at Babati and Originating from Land Application No. 05/2023 in the district land and housing tribunal for Kiteto) ASIA SHABANI......................................... APPLICANT VERSUS JUMA RAJABU.......................................................... RESPONDENT RULING 5th & 9th August, 2029 Kahyoza, J.: Asia Shabani sued Juma Rajabu for trespass before the district land and housing tribunal. Despite proceeding ex parte, Asia Shabani lost her claims. Aggrieved, she unsuccessfully appeared to this Court. Still discontent, Asia Shaban, the applicant lodged the memorandum of revision seeking this Court to revise its decision. Before the Court set down the application for hearing, the respondent raised three points of preliminary hearing. On the date of hearing the application, the applicant appeared in person and Mr. Festo Joseph, learned advocate, appeared for the 1 respondent. The respondent's advocate abandoned two of the points of preliminary objection, retaining one point of objection that, the application is incompetent for being made outside the scope prescribed by the law. To support the preliminary objection Mr. Festo advocate submitted that the applicant instituted an application for revision by lodging a memorandum of Revision instead of lodging a chamber summons supported by an affidavit. The applicant, lay person replied that it was proper to file a memorandum as before the Court was an application for review and not revision. She contended that she filed an application for review after she recovered the document of title. In his rejoinder, the respondent's advocate reiterated that the application was incompetent. He argued further that the applicant's contention that she filed an application for review and not revision cannot be entertained after the respondent raised the preliminary objection. Is the application competent? Having heard the rival submissions, it is obvious that there is only one issue that is whether the application is competent. Before I endeavour to determine the competence of the appeal, it is apt to this Court to determine the issue whether the applicant filed an application for revision or review. 2 The respondent's contention is that what is pending before this court is an application for revision, whereas, the applicant argued that what is pending is an application for review. As the record bears testimony, pending before this court is an application for revision and not for review as the applicant is trying to impress on this court. The applicant lodged to this Court a document titled "Memorandum of Revision". The term revision is different form review. She may have intended to title the document review but due to slip of a pen she wrote review. An application for review is quite distinct from an application for revision. They are instituted using different forms of pleadings and two different court. Review is instituted in the court, which made the decision while revision is instituted in a court having supervisory mandate over the court that made the decision under scrutiny. After holding that before the court is an application for revision and not review, I will proceed to determine the preliminary objection whether the application is competent. As submitted by the respondent's advocate, the applicant instituted the application for revision seeking this Court to revise its own decision by lodging a memorandum of revision. The applicant did not state under which law she filed the application. However, since the 3 application originated in the land and housing tribunal, she must have filed the application under the Land Disputes Courts Act, [Cap. 216 R.E. 2019] (the LDCA). Section 41 of the LDCA gives this Court revisional jurisdiction over the land and housing tribunal. It does not provide for the procedure of instituting the revision proceedings. It stipulates that- "41. -(1) Subject to the provisions ofany law for the time being in force, all appeals, revisions and similar proceeding from or in respect of any proceeding in a District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court. (2) An appeal under subsection (1) may be lodged within forty five days after the date of the decision or order: Provided that, the High Court may, for the good cause, extend the time for filing an appeal either before or after the expiration of such period of forty-five days." The law is clear that the High Court when exercising its jurisdiction, it shall apply the Civil Procedure Code, [Cap. 33 R.E. 2019] (the CPC). Section 51 of the LDCA states that­ 'll. -(1) In the exercise of its jurisdictions, the High Court shall apply the Civil Procedure Code and the Evidence Act and may, regardless of any other laws governing production and admissibility of evidence, accept such evidence and proof which appears to be worthy of belief. (2) The District Land and Housing Tribunals shall apply the Regulations made under section 56 and where there is inadequacy in those 4 Regulations it shall apply the Civil Procedure Code." (the Emphasis supplied)" Given the above position of the law, the CPC regulates the current application. Order XLIII rule 2 of the CPC provides that every application for revision under shall be made by chamber summons supported by an affidavit. It states that- "2. Every application to the Court made under this Code shall, unless otherwise provided, be made by a chamber summons supported by affidavit: Provided that, the Court may where it considers fit to do so, entertain an application made orally or, where all the parties to a suit consent to the order applied for being made, by a memorandum in writing signed by all the parties or their advocates, or in such other mode as may be appropriate having regard to all the circumstances under which the application is made." In the end, I find that the application is incompetent for being filed by lodging a memorandum of revision instead of the chamber summons supported by an affidavit. Thus, the applicant instituted the application in contravention of Order XLIII rule 2 of the CPC. I sustain the preliminary objection and dismiss the application for being incompetent with costs. To avoid endless litigations and given the nature of this matter, acting under order 44 of the Advocates Remuneration Order, 2015 GN. No. 263/2015, I 5 tax the costs awarded at Tzs. 150,000/=. The amount awarded is based on the fact the respondent's advocate appeared once, hence awarded Tzs. 50,000.00 and Tzs. 100,000.00 awarded as instruction fees. I order accordingly. Dated at Babati this 9th day of August, 2024 John R. Kahyoza Judge Court: Ruling delivered in the presence of the applicant and Mr Festo advocate for the respondent. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 9. 8.2024 6