francisca kokuganywa alfred vs mussa saleh another 2023 tzca 18022 16 november 2023

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM fCORAM: NPIKA. 3.A.. KAIRO, 3.A.. And MURUKE, J.A.) CIVIL APPLICATION NO. 270/17 OF 2022 FRANCISCA KOKUGANYWA ALFRED...................... .................... APPLICANT

VERSUS MUSSA SALEH .................................................................. FIRST RESPONDENT MAENDELEO BANK P L C ............................................... SECOND RESPONDENT (Application for revision from of the Ruling and Order of the High Court of Tanzania, Land Division at Dar es Salaam) (Msafiri, 3.) Dated the 22nd day of March, 2022 in Reference No. 10 of 2022

RULING OF THE COURT 3rd & 16th November, 2023 NPIKA. 3.A.: The applicant, Francisca Kokuganywa Alfred, seeks revision of the order of the High Court of Tanzania, Land Division at Dar es Salaam ( the High Court") in Reference No. 10 of 2022 dated 22nd March, 2022. In support of her application, she duly swore an affidavit. On the other hand, Mussa Saleh and Maendeleo Bank PLC, the first and second respondents respectively, lodged separate affidavits in reply strongly resisting the application. i The context in which this matter arises is uncomplicated. The applicant succeeded in the High Court against the respondents in Land Case No. 304 of 2015 as the court (Maige, J., as he then was) invalidated the sale of her mortgaged property, namely, Plot No. 29, Block 'G', Magomeni Area, Kinondoni, Dar es Salaam comprised in Certificate of Title No. 39132 ("the property"). The sale had been made to the first respondent by way of auction on 30th August, 2015 in a purported exercise by the second respondent of power of sale under a mortgage deed between it and the applicant. Armed with the High Court's decree, the applicant sought to repossess the property. She thus instituted Execution No. 77 of 2019 for execution of the decree by eviction of the first respondent from the property. The executing court (W.A. Hamza, Deputy Registrar) granted the application on 12th October, 2021. In

consequence, on 1st November, 2021 the Deputy Registrar issued an eviction order against the first respondent and appointed Abdallah Tambaza t/a Tambaza Auctioneers to execute it. Not to be outdone, the first respondent challenged the ordered eviction by way of reference to the High Court pursuant to Order XLI, rule 1 of the Civil Procedure Code, Cap. 33 ("the CPC"). By its ruling dated 22nd March, 2022, the court (Msafiri, J.) vacated the Deputy Registrar's eviction order. It reasoned that the decree sought to be executed was only declaratory on the invalidity of the impugned sale and that it did not grant any executable relief to the applicant in form of vacant possession of the property. As hinted earlier, the aforesaid order is the subject of this application. Before us, Mr. Alex G. Mgongolwa, learned counsel for the second respondent, demurs that the application is incompetent for being preferred in alternative to appeal. He essentially submits that the Court's power of revision in terms of section 4 (3) of the Appellate Jurisdiction Act, Cap. 141 ("the AJA") cannot be invoked by a party on a matter that it is appealable to this Court except where there are exceptional circumstances or if the right of appeal is blocked by a judicial process. He is emphatic that the impugned decision of the High Court is appealable pursuant to section 5 (1) (c) of the AJA and that there

exist no circumstances warranting resort to the revisional power of the Court. In support of his submission, the learned counsel relies on our decisions in Fatuma Hussein Shariff v. Alikhan Abdallah (As the Administrator of the Estate of Sauda Abdallah & 3 Others, Civil Appeal 536 of 2017 [2021] TZCA 47 [24 February 2021; TanzLII] and Ramadhani Mikidadi v. Tanga Cement Company Ltd., Civil Application 275 of 2019 [2022] TZCA 578 [26 September 2022; TanzUI]. For the first respondent, Mr. NyaronyoM. Kicheere, learned counsel, supports Mr. Mgongolwa's stance. On the other hand, Mr. Ndurumah K. Majembe, learned advocate for the applicant, disagrees with his learned friends. His argument is largely two-fold. He contends, at first, that the impugned decision of the High Court is not appealable. Secondly, he faults Msafiri, J.'s assumption of jurisdiction in the reference, contending that the learned judge had no power to hear and determine a reference from the Deputy Registrar sitting as the executing court. In a brief rejoinder, Mr. Mgongolwa maintains that the applicant is entitled to appeal against the High Court's decision in terms of section 5 (1) (c) of the AJA because the impugned order falls within the description of "every other order of the High Court." He maintains that the alleged error of law committed by the High Court could have been corrected by way of appeal. Section

4 (3) of the AJA upon which this application is predicated provides that: "(3) W ithoutprejudice to subsection (2), the Court o f Appeal sh all have the power, authority and jurisd iction to ca ll fo r and exam ine the record o f any proceedings before the High Court fo r the purpose o f satisfying its e lf as to the correctness, leg ality or propriety o f any finding, order or any other decision made thereon and as to the regularity o f any proceedings o f the High Court." While the Court has consistently interpreted and applied the above provisions allowing interested parties to apply for revision if they have no right of appeal, the settled principle of general application is that a party to the proceedings before the High Court who has the right of appeal cannot apply for revision in alternative to appeal, but that he or she may do so in exceptional circumstances or if the right of appeal is blocked by judicial process: see Moses J. Mwakibete v. The Editor — Uhuru, Shirika la Magazeti ya Chama and National Printing Co. Ltd [1995] T.L.R. 134; Transport Equipment Ltd v. Devram P. Valambhia [1995] T.L.R. 161; Halais Pro-Chemie v. Wella A.G. [1996] T.L.R. 269; and Balozi Abubakar Ibrahim & Another v. Ms. Benandys Ltd &. 2 Others, Civil Revision No. 6 of 2015 [2015] TZCA 5 [30 October 2015; TanzLII]. In Mwakibete {supra), a seminal decision on the matter, the Court held on 22nd

March 1995 that: "Before proceeding to hear such an application on m erits, this court m ust satisfy its e lf whether it is being properly m oved to exercise its revisional jurisdiction. The revisionalpow ers conferred by ss. (3) were not m eant to be used as an alternative to the appellate jurisdiction o f this court. In the circum stances, this court, u n le ss it is a c tin g on it s ow n m o tion , ca n n o t p ro p e rly b e m o ved to use its re v is io n a l p o w e rs in ss (3) in cases where the applicant has the rig h t o f appeal with or w ithout leave and has not exercised that option, "[Emphasis added]. The Court repeated the above standpoint in Transport Equipment Ltd {supra), apparently without referring to Mwakibete {supra). Subsequently, in Halais Pro-Chemie {supra), the Court, having revisited Mwakibete and Transport Equipment Ltd {supra), concluded as follows so far as both party-initiated revision and revision suo motu are concerned: "We think that M wakibete's case read together with the case o f Transport Equipm ent Ltd are authority fo r the follow ing leg al propositions concerning the revisionaljurisdiction o f the Court 6 under ss (3) o f s 4 o f the Appellate Jurisdiction Act, 1979: (i) The Court may, on its own m otion and a t any time, invoke its re visionaljurisdiction in respect o f proceedings in the High Court; (ii) E x ce p t under e x ce p tio

n a l circu m stan ces, a party to proceedings in the High Court cannot invoke the revisionai jurisdiction o f the Court as an alternative to the appellate jurisd iction o f the Court; (Hi) A party to proceedings in the High Court m ay invoke th e re v is io n a i ju ris d ic tio n o f th e C o u rt in m a tte rs w hich a re n o t ap p e a la b le w ith o r w ith o u t leave; (iv) A party to proceedings in the High Court m ay invoke the revisionai jurisd iction o f the Court where th e a p p e lla te p ro ce ss has been b lo ck e d by ju d ic ia l p ro cess. "[Emphasis added] It is, therefore, evident that while the right of a party to the proceedings in the High Court to seek revision is so constrained, the Court can exercise its revisionai jurisdiction suo motu at any time even where a right of appeal exists. 7 In view of the above exposition of the law, we are enjoined to determine whether the instant application for revision is proper. It is logical to begin our deliberations on the above issue by stressing that the controversy between the parties lies in the manner the execution of the decree in issue by the High Court was carried out. In this context, we wish to observe, at the outset, that the Deputy Registrar in the instant case had jurisdiction to deal with the execution proceedings in Execution No. 77 of 2019 in terms of Order XXI, rules 21 and 22 of the CPC. This

is so because the provisions of Order XLIII, rule 1 (g) and (h) of the CPC expressly vest every Deputy Registrar with such powers as follows: "1. Subject to any genera! or special direction o f the C hief Justice, the follow ing pow ers m ay be exercised by the Registrar or any Deputy or D istrict Registrar o f the High Court in any proceeding before the High Court- (a) to (d) [N ot applicable] (e) to adm it, reject or allow the amendment o f an application fo r execution o f a decree under Order XXI, rule 15; (f) to issue notice under Order XXI, rule 20; (g) to o rd e r th a t a d ecree b e e xe cu te d u n d e r O rd e r X X I, ru le 21; 8 (h) to issu e p ro ce ss fo r e xe cu tio n o f a d ecree u n d e r O rd e r X X I, ru le 22; (i) to stay execution, restore property, discharge judgm ent-debtors and require and take security under Order XXI, rule 24; (j) if there is no judge a t the place o f registry, to issue a notice to show cause and to issue a w arrant o f arrest under Order XXI, rule 35; (k) to (m) [N ot applicable]" [Emphasis added] We are aware that section 5 (1) (b) (ix) of the AJA provides that an appeal against any order of the High Court made under Order XLIII, rule 1 of the CPC lies automatically to this Court. For clarity, we extract the relevant part of the said provision thus: 5 .-( l) In c iv ilproceedings, except where any other w ritten law for the tim

e being in force provides otherwise, an appeal sh all He to the Court o f A ppeai- (a) against every decree, including an ex parte or prelim inary decree made by the High Court in a su it under the C ivil Procedure Code, in the exercise o f its original jurisdiction; (b) against the follow ing orders o f the High Court made under its original jurisdiction, that is to sa y- (i) to (viii) [N ot applicable] (ix) any order specified in rule 1 o f Order X LIII in the C ivil Procedure Code, or in any rule o f the High Court amending, or in substitution for, the ru le ;" It is undoubted that instead of appealing to this Court against the Deputy Registrar's order in terms of section 5 (1) (b) (ix) of the AJA, the first respondent challenged the said order by way of "reference" to the High Court pursuant to Order XLI, rule 1 of the CPC. To be sure, rule 1 of Order XLI stipulates as follows: "1. Where, before or on the hearing o f a su it in which the decree is not subject to appeal or where, in the execution o f any such decree, any question o f law or usage having the force o f law arises, on which the court trying the su it or appeal, or executing the decree, entertains reasonable doubt, the court may, either o f its own m otion or on the application o f any o f the parties, draw up a statem ent o f the facts o f the case and the p oint on which doubt is entertained and refer

such statem ent with its own opinion on the point fo r the decision o f the High Court." 10 Evidently, the above provision governs the procedure for a subordinate court, handling a suit in which a decree is not subject to appeal or where handling execution of any such decree, to seek the opinion of the High Court, by way of reference, on a specific legal question or usage. The subordinate court concerned, acting suo motuor upon the application of any of the parties, would draw up a statement of the facts of the case and the point on which doubt is entertained and then refer such statement with its opinion on the point for the consideration and decision of the High Court. Given this settled position, it may be argued that the impugned decision of the Deputy Registrar could not be legally referred to the learned judge of the High Court as it happened in the instant case as if it was a decision of a taxing officer in terms of Order 7 (1) and (2) of the Advocates Remuneration Order, Government Notice No. 264 of 2015. We have duly considered Mr. Mgongolwa's argument that the alleged error committed by the High Court by its impugned order could be corrected by way of an appeal with leave in terms of section 5 (1) (c) of the AJA because the impugned order falls within the description of "every other order o f the High Court." That may be so, but the instant case, without prejudging

its merits, presents arguably exceptional circumstances amenable to the revisional process. For the execution process appears to be marred by confusion of the roles of the Deputy Registrar and the Judge of the High Court in enforcement of decrees and orders of the High Court. In the premises, we dismiss the second respondent's preliminary objection and order that this matter to proceed to hearing on a date to be fixed and notified by the Registrar. Costs shall be in the cause. DATED at DAR ES SALAAM this 15th day of November, 2023. G. A. M. NDIKA

JUSTICE OF APPEAL L. G. KAIRO

JUSTICE OF APPEAL Z. G. MURUKE

JUSTICE OF APPEAL The Ruling delivered this 16th day of November, 2023 in the presence of Mr. Ndurumah Keya Majembe, learned advocate for the applicant also holdings brief for Mr. Nyaronyo M. Kichele and Mr. Alex Mgongolwa, learned advocates for the 1st and 2nd respondents is hereby -certified as a true copy of the original. v'-- <s..' •. • D. R. LYIMO

DEPUTY REGISTRAR

COURT OF APPEAL 12