elia muharage others vs ushirika wa vijana wa kikristo uzalishaji tanzania uvikiuta 2018 tzhclandd 19 16 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND REVISION NO 29 OF 2016 ELIA MUHARAGE................................................. 1st APPLICANT ASTERIA CHARLES............................................... 2nd APPLICANT PETER DAUDI...................................................... 3rd APPLICANT JOHN ZEBEDAYO................................................. 4th APPLICANT CHACHA MARWA................................................. 5th APPLICANT VERSUS USHIRIKA WA VIJANA WA KIKRISTO UZALISHAJI TANZANIA (UVIKIUTA)........................................ RESPONDENT Date of last order: 13/12/2017 Date of Ruling: 16/02/2018 RULING Makuru. J The Respondent, Ushirika wa Vijana wa Kikiristo Uzalishaji Tanzania (UVIKIUTA), has filed a notice of preliminary objection on points of law that: 1. The Application is incompetent for being filed out of time, without leave of the Hon. Court to extend time to file revision. 2. Application is untenable and misconceived for being brought under wrong citation of the law. 3. The application is incompetent for being brought under a defective chamber summons. 4. The application is incompetent for being supported by a defective affidavit. 5. Applicants are not entitled for Revision as the case was decided Ex- parte. 6. Application is an abuse of court process." When the matter was set up for hearing of the preliminary objections, Mr. Onesmo Kyauke learned counsel appeared for the Applicants while the Respondent enjoyed the legal services of Mr. Emmanuel Makene learned counsel. Submitting in support of the first Preliminary Objection, Mr. Makene argued that the application is in contravention with the provisions of Item 21 Part III of the Schedule to the Law of Limitation Act, Cap 89 R.E. 2002 (here in after referred to as "the Act") as it has been filed 2 years after the date of judgment and no extension of time has been sought. On the second preliminary objection, it was submitted that the Applicants ought to have included Item 21, Part III of the Schedule to the Act, failure of which renders the application incompetent before the court. As for the 3rd ground of objection Mr. Makene contended that, the application has been brought under a defective chamber summons. According to him, this is contrary to Order 5 Rule 2 of the Civil Procedure Code, Cap 33 R.E. 2002 which requires every chamber summons to be sealed with the seal of the court. 2 On the fourth ground of objection it was submitted that, the application is supported by a defective affidavit contrary to Order 19 Rule 3 of the Civil Procedure Code. According to him, paragraph 2 of the affidavit contains facts which are not within the deponent's knowledge. In respect of the 5th ground Mr. Makene contended that, the Applicants are not entitled to revision because the previous judgment was decided ex-parte. According to him the application contravenes the provisions of Regulation 11 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, GN. No. 174 of 2002. It was the learned counsel's further contention that the Applicants were supposed to make an application to set aside the ex-parte judgment. On the 6th preliminary objection it was submitted that the application is an abuse of court process as it contravenes sections 8 and 9 of the Civil Procedure Code. According to him, this application was filed on 29/12/2016 and the Applicants filed another Application No. 430 of 2016 in the District Land and Housing Tribunal of Temeke on the same day. The learned counsel went on to state that, there is yet another application which is pending before this court i.e. Misc. Land Application No. 727 of 2017 filed on 23/8/2017 before Hon. Kente, J. In reply thereto, Mr. Onesmo contended that the application is based on fraud. He further submitted that the Respondent filed a suit in the High Court against 33 persons and fraudulently went back to Temeke District Land and Housing Tribunal and filed an application against 5 people. It is 3 submitted further that the Respondent was not served. Hence, the applicants acquired an ex-parte judgment. It was therefore the learned counsel's argument that in cases of fraud time starts to run when the victim of fraud becomes aware. He cited the case of Benjamin Rwechungura Vs the Managing Director NBC, Land Case No. 414 of 2016 (unreported). He contended that the Applicants became aware of the fraud on 29 November, 2016 and the present application was filed on 29th December, 2016. Hence, the same is within time. As for the 2nd preliminary objection it was submitted that, this is not an application for extension of time, therefore, the provisions cited are proper to move the court for revision. In reply to the 3rd preliminary objection Mr. Kyauke argued that it is the duty of the court to issue summons. Thus, the omission is not fatal. As for the 4th ground of objection it was submitted that, it is a matter of evidence. Therefore, it does not qualify to be brought as a preliminary objection. In the alternative, the learned counsel submitted that if the court finds that there are offensive paragraphs they can be struck out. Mr. Kyauke also argued that the number of people who swear the affidavit does not matter so long as it is properly verified and the jurat is proper. 4 On the fifth ground of objection it was contended that this is not an appeal but rather an application for revision. Thus, the provisions of section 43 do not impose restrictions on the High Court. According to him, since there is fraud in the instant application the court can intervene by virtue of s.41 (1) and (2) of the Land Disputes Courts Act, Cap 216 and that it does not matter whether the decision was ex-parte or not. Regarding the 6th preliminary objection, Mr. Kyauke stated in reply that what the applicant filed in Temeke District Land and Housing Tribunal were objection proceedings involving more than 800 people and judgment was entered against 5 people but it was executed against more than 800 people. It is stated further that, the application before Kente, J. is different from the present case. I have carefully gone through the court record and considered the contending submissions of the learned counsel for both parties. I will start with the 5th preliminary objection that, the Applicants are not entitled for revision as the case was decided ex-parte. It is apparent from the record that the judgment which is subject of this application was entered ex-parte. It is trite law that where a party is aggrieved by a decision or order of the court he/she ought to exhaust the remedies available to him/her first. Regulation 11 (2) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, 2002 (GN. No. 174 of 2002) provides that: 5 "(2) A party to an application may, where he is dissatisfied with the decision o f the Tribunal under sub-regulation (1), within 30 days apply to have the orders set aside, and the Tribunal may set aside its orders if it thinks fit so to do and in case o f refusal appeal to the High Court." The District Land and Housing Tribunal's record shows that the Applicants, who were the Respondent in the trial Tribunal, were nowhere to be found, that is why they were duly served through affixation. Yet, they did not appear in court and did not file their defence. Therefore, it was ordered the matter to proceed ex-parte. In the instant case the Applicants ought to have made an application before the trial Tribunal to have the ex-parte judgment set aside first before filing this application. Hence, this application has been pre-maturely made. Therefore, it lacks legs to stand as it has been improperly brought before this court. The fifth preliminary objection is hereby upheld. I have also noted that, it has been stated in paragraph 10 of the supporting affidavit that on 29th December, 2016, the Court Broker started demolishing the Applicant's and more than 1,000 other people's houses without giving notice. Unfortunately, the Court Broker and those other people are not parties to this matter. They were also not parties in the trial Tribunal On the strength of the 5th Preliminary Objection, I find this application to be unmaintainable before this court. After holding so, I am of the view that it is not necessary to labour on the other grounds of preliminary objection. In the event, and for the reasons afore stated, I hereby dismiss this application with costs. C.W. Makuru JUDGE 16/ 02/2018 Court: Ruling delivered in court this 16th day of February, 2018 in the presence of Mr. Nuru Selemani, learned counsel for the Applicants and Mr. Godlisten Isowe, learned counsel for the Respondent. C.W. Makuru JUDGE 16/ 02/2018