CIVIL REVISION NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CIVIL REVISION NO. 3296 OF 2024 (Arising from Misc. Civil Application No. 3 of2023 of the District Court of Newaia district at Newaia) GEORGE MKOMOLA................ ..................................... ............... ........APPLICANT VERSUS HASHIMU HAKIKA MAMU (The administrator of the Estate of the Late HAKIKA MADRID MAMU........... ,................................. ............... ............. RESPONDENT RULING 30/10/2024 & 19/11/2024 DING'OHI, J. George Mkomola and Hashimu Hakika Mamu, the applicant and the respondent, respectively, stood as legal representatives of the estates of their respective deceased relatives. The applicant was appointed to administer the estate of the late Curtius Mkomola who died in 2013. The respondent was appointed to administer the estate of the late Hakika Mauridi Mamu who died in 2002. It is alleged that sometime in 2006 the late Curtius Mkomola at the public auction conducted by the Ward Executive Officer purchased the land located at Magumchira in Newaia district. The sale of the Pagel of 14 said land was made in execution of the decision and orders of the Primary court of Newaia District at Newala Urban in civil case No. 67 of 2003. After purchasing the land as aforesaid, it is alleged, that the late Curtius Mkomola used the land till his death in 2013. Later, in 2017, the Respondent filed Land Application No. 56 of 2017, against the appellant, in the District Land and Housing Tribunal for Mtwara (DLHT), claiming ownership of the suit land. After hearing the evidence of both sides, the DLHT found for the respondent. It declared him the rightful owner of the land in dispute. Unhappy with that decision the applicant herein filed an appeal to this court vide Land Appeal No. 3 of 2019. On 6.8.2021 this court (Hon. Dyansobera, J) allowed the appeal. It quashed and set aside the Judgment of the District Land and Housing Tribunal. Out of the blue, and being found that he was late, on 15th August 2023, the respondent filed an application in the District Court of Newala at Newala (trial court) vide Misc Civil Application No. 3 of 2023 for an extension of time to file a revision against the judgment and decree in civil case No. 67 of 2003 of the Primary court of Newala District at Newala Urban. In that case, it was Page 2 of 14 observed that the suit land was lawfully sold to the applicant at the public auction per the order of the court. Upon full trial, the trial court magistrate ruled out that the application had no merit. However, he did not end there. He proceeded to order that the suit land be returned to the respondent herein. The above decision or order is what prompted the applicant to file this application for the following; i. That this Honourable Court be pleased to call for and examine the record and proceedings of the District Court of Newaia at Newaia in Miscellaneous Civil Application No. 3 of2023 so as to satisfy Itself as to the correctness, legality or propriety of the order made therein. ii. Cost. iii. Any further orders as this Honourable Court may deem just to grant. The application is supported by an affidavit sworn by the applicant. The respondent filed a counter affidavit in opposition to the application. The applicant was fully represented by Ms. Jenifer Kivuyo, the learned advocate. The respondent was unrepresented. Page 3 of 14 Both sides agreed that the application be disposed of by way of filing written submissions which are in place. In supporting of the above prayers in this application, Ms. Kivuyo commenced that the application is predicated upon the following grounds as contained under paragraph 9 of the affidavit; i. The issue on ownership of the land had been conclusively decided by the High Court. ii. The trial court granted relief outside parties' pleadings. iii. The High Court in Land Appeal No. 3 of 2019 decided that the letter of Nanguruwe Ward Executive officer was a clear proof of the existence of Civil Case NO. 67 of 2003. iv. The court did not give reasons for the decision in granting ownership of the land. Arguing cumulatively on the first and third grounds as above, the learned advocate submitted that the issue of ownership of the land had been conclusively done by the High Court in Land Appeal No. 3 of 2019. According to Ms. Kivuyo, section 9 of the Civil Procedure Code Cap 33 R.E. 2019 bars courts from entertaining matters that have already been decided by a court of competent jurisdiction. She supported her stance with the case of Diodes Page 4 of 14 Kamuhabwa vs Theonest Kamuhabwa (Civil Appeal No. 436 of 2022) [2024] TZCA 221. It is Ms. Kivuyo's submission that the parties in Land Appeal No. 3 of 2019 and those in Misc. Civil Application No. 3 of 2023 are the same. Also, the issue of ownership of the land adjudicated in Land Appeal No. 3 of 2019 is that which was granted in Misc. Civil Application No. 3 of 2023. That, the High Court which decided the matter in Land Appeal No. 3 of 2019 had jurisdiction to try the matter. The learned advocate quoted a passage from the case of Umoja Garage vs N.B.C. Holding Corporation (Civil Appeal 3 of 2001) [2001] TZCA 12 where it was observed that; ft would be an abuse of court process to allow the same matter to be litigated again in subsequent civil case No. 63 of 199' Ms Kivuyo reminded that litigation must come to an end. Thus, the trial court slept into an error in granting ownership while that matter had already been decided conclusively. On the second point, the learned advocate submitted that the respondent's application before the trial court in civil application 3 of 2023 had only three prayers; one, extension of time within which he could lodge Page 5 of 14 an application for Revision against the judgment and decree in civil case No< 67 of 2003 at Newala Urban Primary court; two, costs, and three, any other reliefs. According to Ms. Kivuyo, on the last page of the trial courts judgment, the learned trial magistrate decided the issue of ownership of disputed land. The decision as to the ownership cropped up out of nowhere. The learned advocate referred this court to the cardinal principle of the law that parties are bound by their pleadings. To support that stance, the learned advocate cited the cases of James Funke Gwagilo v. Attorney General, [2004] TLR 161, Maria Amandus Kayishe vs Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31, and Mary Peter Otaru and Another vs African Banking Corporation (Tanzania) Ltd. and Another (Civil Appeal No. 395 of 2020) [2024] TZCA 511. Lastly, the learned advocate faulted the trial court for its failure to give the reasons for the decision to grant the ownership of the land to the respondent. She argued that the law under Order XX Rule 4 of The Civil Procedure Code Cap 33 R.E. 2019 provides for criteria of good judgment and one of those criteria is that a judgment must contain reasons for a decision. Page 6 of 14 According to Ms Kivuyo, in the last paragraph on page 9 of the trial court's judgment, the learned trial court magistrate is only quoted saying; 'the disputed land remain the estate of deceased person one Hakika Mauridi Marner I so order.' From the above short passage, the learned advocate was of the view that the said extract is not supported with reasons. The reasons for a decision are an important aspect of the judicial process as it allows the parties involved in the case to understand the rationale behind the decision. To bolster her position, she referred this court to the case of Abubakari I,HL Kolongo & Another vs Republic (Criminal Appeal 230 of 2021) [2022] TZCA 722. In response to the submissions by the applicant on the first and third grounds, the respondent contended that there is no proof that there existed civil case No. 67 of 2003 which was either filed or heard at Newala Primary Court. According to the respondent, those are mere words because it has even been proved by the Newala primary court magistrate in her affidavit that there is no information or records that show that there existed civil case file No. 67 of 2003. Page 7 of14 He further submitted that the issue of ownership was never settled by the High Court in Land Appeal No. 3 of 2019 because no execution order was directed to the Ward Executive Officer to sell the suit farm to the late Curtias Mkomola. As to the letter allegedly directing the sale of the suit farm, the respondent contends that the letter if any is not proof that there existed the civil case No. 67 of 2003. According to the respondent in law and as a matter of practice, to prove the existence of certain cases in court is by court register, proceedings of the case, and a copy of the judgment. The applicant should have brought a copy of the judgment to prove the existence of civil case No. 67 of 2003, the failure of which, the fact remains unproven. It is the respondent's submission that a court of law cannot decide on a presumption of the existence of fact but rather on proof of the existence of the fact to the required standard as observed in the case of Maleki s/o Chamkaga vs Samwel Nyakalege (Civil Appeal Case 60 of 2021) [2022] TZHC 11379 which acknowledged the decision in Barelia Karangirangi vs Asteria Nyalambwa (Civil Appeal No. 237 of 2015) [2019] TZCA 51. Replying on the issue of res judicata the respondent contended that the law on that is envisaged under section 9 of the Civil Procedure Code [Cap. 33 R.E 2019], which according to him provides that the issue applies Page 8 of 14 only to the matter in issue directly and substantially in issue in both cases. It should be between the same parties or between the same parties claiming under the same litigating title and the suit must be pending in the same or any other court with competent jurisdiction. The respondent is thus of the view that under the above circumstances, the conditions as to the res judicata were not met because there was no Civil case No. 67 of 2003 that ever existed in the primary court of Newala district at Newala but only the Land Appeal No. 3 of 2019 of this court and Misc. Civil Application No. 3 of 2023. While the above-mentioned land appeal emanated from the decision of the District Land and Housing Tribunal of Mtwara at Mtwara in which this court quashed and set aside the decision of the DLHT, the Misc. Application No.3 of 2023 was for leave to file revision out of time against the decision in Civil case No. 67 of 2003 (of the primary court). Thus, the Land Appeal No. 3 of 2019 and Misc. Application No. 3 of 2023 is not of the same issue and between the same parties, and thus the issue of res judicata is without merit. In response to the second limb, the respondent supported the position of law that the court cannot give relief that has not been sought by the parties as provided in the decision of this court in Eckson Mtafya vs Michael Mtafya (Probate Appeal 6 of 2020) [2020] TZHC 3604. However, Page 9 of 14 according to the respondent, in Misc. application No. 3 of 2023 the District court parties were allowed to make submissions and prayers. According to the respondent as he prayed for any other orders and reliefs the court might deem fit and just to grant in the interest of justice that was the reason that the trial court gave that decision under the umbrella of the "any other order". That was also done after the trial court found that civil case No. 67 of 2003 was not in existence and that the trial court could grant the disputed order in the interest of justice. In response to the last limb, the respondent submitted that under Order XX Rule 4 of the Civil Procedure Code, as read together with the case of Abubakari LH. Kilongo (supra), a judgment must contain a concise Statement of the case, points for determination, the decision thereon and reasons for the decision. According to him, the trial court judgment has a reason for the decision as reflected in the last paragraph of the last page, Having considered the chamber application, affidavits, and written submissions of both parties, the issue for determination is whether the application is meritorious. In this Application, the Applicant has asked this court to exercise its powers of revision conferred by section 44 (1) (b) of the Magistrates' Courts Page 10 of 14 Act [Cap 11. R.E. 2019] and section 79 (1) (c) of the Civil Procedure Code [Cap 33 R.E. 2019] to revise the Ruling and the proceedings of the District Court of Newala in Misc. Civil application No. 03 of 2023. The particular extract targeted in this application is that found in the last paragraph of the last page of the trial court ruling which had the effect of determining the issue of the ownership of the land in the application for extension of time to file revision. For the avoidance of doubt, the said extract as it appears in the ruling of the trial court, states as follows: - 'Then, thereafter I see this application has no merit since there no case file in records where the trial magistrate could make exercise revision powers and I quashed the allegation of existence of judgment and set aside and decree ofcivil case No. 67 of2003. The disputed land remain the estate of deceasedperson oneHAKIKA MAURIDIMAMU.Iso order.' The Applicant in his chamber summons and affidavit in support of the application asks this court to revise the above-quoted extract which is taken from the trial court ruling on the ground that there is already a Land Appeal No. 03 of 2019 decided by this court (Hon. Dyansobera, J) that recognized the applicant as a rightful owner of the land in dispute. The Respondent, on Page 11 of 14 the other hand, supports the position by the trial district court that the applicant failed to bring the decision given in the civil case No. 67 of 2003 which proves that the applicant purchased the suit land in the process of an application for the execution of the decree/award by the primary court. The powers of the district court on revision are provided for under Section 22 of the Magistrates' Courts Act [CAP. 11 R.E. 2019]; it reads: '22 (1) A district court may call for and examine the record of any proceedings in the primary court established for the district for which it is itself established, and may examine the records and registers thereof, for the purposes of satisfying itself as to the correctness, legality or propriety ofany decision or order of the primary court, and as to the regularity of any proceedings therein, and may revise any such proceedings.' The essence of the above provision of the law is that a district court has been given powers limited to examine the record of any proceedings in the primary court to satisfy the correctness, legality, or propriety of any decision or order given by the primary court. That provision of law is not for the extension of time to file revision. The application for an extension of time to file court documents has its procedures and the means to mitigate the Page 12 of 14 delay. Under the circumstances of the application subject to this matter, the trial court should have specifically focused on the application for an extension of time for the present respondent to file a revision application against the decision of the primary court of Newala district in civil case No. 67 of 2003. The task of revising the decision of the primary court was still not called. What the trial court did therefore is like picking off the fruits when the tree has only produced flowers for the fruits. It follows therefore that, since what was filed in the district court was an application for an extension of time to file revision, the trial court went astray when it proceeded to decide the outcome of the intended revision, if any, without following the proper procedure. What the learned Resident Magistrate expected and/or required to do was to decide the application which was before him. It was whether to extend the time for the filing of the revision application as requested or refuse to so extend. It is to be noted that the application for an extension of time to file court documents is not a proper place for the court to exercise its discretionary power to allow another remedy outside the pleadings without availing parties an opportunity to be heard. The popular say is that the court should be bound by the pleadings. The learned trial magistrate was wrong in not observing that. Page 13 of 14 It is for the foregoing reasons, I declare that the proceedings and the resultant ruling by the trial court in the Misc. Application no. 3 of 2023 is a nullity. They are all quashed and set aside. That being the position, therefore, the application is granted as applied to, save for orders of costs. DATED at MTWARA this 19th day of November 2024. COURT: Ruling delivered this 19th day of November 2024 in the presence of Mr. Stephen Lakey, the learned advocate for the applicant and the Respondent who appeared in person. A I S.R. DING'OHI JUDGE 19/11/2024 Page 14 of 14