enock pyuza vs mianzi mkilya administratrix and legal personal representative of the estate of the late of the late stephano mkilya 2022 tzhc 13740 30 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA LAND REVISION NO. 01 OF 2021 (Originating from the decision in Land Appeal No. 41 of 2020, the High Court of Tanzania at Dodoma determined by the Honorable Judge Masaju) ENEOCK PYUZA................................. APPLICANT VERSUS MIANZI MKILYA (As the Administratrix and legal personal Representative of the estate of the late STEPHANO MKILYA) ..... RESPONDENT 7/9/2022 & 30/9/2022 RULING MASAJU, J The Applicant, Enock Pyuza, has filed in the Court an Application for Review of the Judgment of the Court in Land Appeal No. 41 of 2020, which was decided in favour of the Respondent, Mianzi Mkilya, the Administrative and Legal Personal Representative of the Estate of the late Stephano Mkilya. The Application is made under Order XLII Rule 1(1) a, b, and (2) Rule 2 and 3 and sections 78,95,96 and 97 of the Civil Procedure Code [Cap 33 RE 2019] of the Principal Legislation and section 2 and 5 Part II of the Judicature and Application of Laws Act [Cap 358 RE 2019] of the Principal Legislation. The Applicant's Memorandum for Review is made of three grounds, thus, i "1. The Honorable court or judge mistakenly and apparently erred in law and fact and indeed misdirected in his decision in not discovering that the decision of the District Court Tribunal was per incurium or forgetfulness of the law and wrong application of the principle of laws. 2. The Honorable court orjudge apparently and mistakenly on the face of records erred in law and facts in not discovering that there are important matters of factors and sufficient reasons on record for consideration or whole matter and laws applicable to the circumstances of this case. 3. The Honorable court or judge mistakenly erred in law and facts in dismissing the appeal based on gross mistake and errors of the law on the face of records and legal practice" The Application was heard in the Court on the 7th day of September, 2022. The Applicant appeared in person and prayed to adopt the grounds for the Review on the Memorandum of Review to form his submissions in support of the Application. He prayed the Court to grant the Application accordingly. The Respondent was advocated for by Mr. Elias Subi, the learned counsel who prayed to adopt the Respondent's Reply to the Memorandum of Review to form part of his submissions against the Application accordingly. The Respondent added that, in Land Appeal No 41 of 2020, the Court so rightly considered the appeal and held that the matter was "Resjudicatd'. That, Land Application No. 36 of 2019 in the District 2 Land and Housing Tribunal for Iramba was "res judicata" to Land Application No. 21 of 2010 in the District Land and Housing Tribunal for Singida between the same parties in terms of Section 9 of the Civil Procedure Code [Cap 33]. That, the subject matter was also the same, that in to say 20 acres land in Malaja village, within Mkalama District. The Respondent prayed the Court to dismiss the Application with costs for want of merit. That is what was shared by the parties in support of, and against the Application in the Court. Section 78 of the Civil Procedure Code [Cap 33] gives room to any party to the suit aggrieved by decree or order of the Court from which an appeal is allowed by the code but from which no appeal has been preferred or being aggrieved by a decree or order from which no appeal is allowed by the code to file an Application for Review to the court which passed the decree or made the order. Order XLII Rule 1 of the Civil Procedure Code [Cap 33] provides for the criteria to be considered by the Court in determination of an Application for review of the judgment that is to say, in case there is the discovery of new and important matter or evidence which after the exercise of due diligence was not within the part's knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of record or for any other sufficient reason. In the instant case, the Applicant's main reason for Review of the Court's judgment is mainly that the Court wrongly applied the principles 3 of law, that is to say "resjudicatd'. The Applicant did not expound on the grounds of review. The Court was very keen in going through the original records of the two land disputes between the same parties on the same cause of action and made the decision thereof. The alleged mistakes or errors on the face of record or legal practice were not stated by the Applicant. Thus, the Court is of the considered position that the Applicant has failed to prove the apparent error, if any, on the face of record of the court's judgment. He has also failed to prove any other grounds for Review as alleged worth convincing the Court to Review the same. However, a Review is by no means an appeal in disguise whereby an erroneous decision, if any, is reheard and corrected, but lies only for patent error. The Applicant may wish to file an appeal against the Court's decision. That said, the Application for Review of the Court's judgment is hereby dismissed accordingly for want of merit. Indeed, this purported Application for Review does not even qualify for an Application because the same was not filed in the Court by way of Chamber Summons supported by Affidavit as the law guides in Order XLIII Rule 2 of the Civil Procedure [Code, Cap 33 RE 2019]. The parties shall bear their own costs. ORGE M. MASAJU JUDGE 30/9/2022 4