gerald paschali chombo others vs safina hashim kifea another 2009 tzhc 188 8 march 2009

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 103 OF 2008 (From the Decision of the District Land and Housing Tribunal of Morogoro District at Morogoro inland Case No. 24 o f2008) GERALD PASCHALI CHOMBO ^ JOSEPH PASCHAL CHOMBO V ....................... .............. APPELLANTS ROMAN PASCALI CHOMBO J VERSUS SAFINA HASHIM KIFEA 1 CHRISTIN A. MUNISHI J ...................................... RESPONDENT RU L I N G BEFORE: HON. NGWALA, J: Mrs Wamunza the learned counsel for the appellant, through Mr. Tundu Lisso learned advocate who held her brief, is seeking for the leave of this court to withdraw the appeal so as to file a revision. In the words of Mr. Lisso, "Mrs Wamunza prays to withdraw the appeal with leave to file an application for revision. " On his part, Mr. Binamungu, the learned counsel who is representing the respondents does not have any objection with regard to the withdrawal of the appeal, but on the prayer for leave for revision. He only stated that "this is not the way things should be done." and prayed for the costs of the suit. i In Rejoinder, Mr. Lisso contended the prayer for costs could not be granted because the appeal was yet to be withdrawn, before the hearing of the appeal and the counsel cannot make any efforts in defending the appeal. He further observed that the prayer was erroneous on the part of the appellant. He however said nothing as regards the leave to file an application for review. In view of the foregoing submissions, I am of the considered opinion that though Mr. Binamungu is only objecting the prayer for leave to file revisional application, but the prayer by the counsel for the appellant is inter-twined, in the sense that it is not as good as refusing to grant any limb of the said prayer. I hold so because the powers of the High Court Land Division on Appeals, supervision and Revisions on proceeding from, or in respect of any proceedings in the District and Land and Housing Tribunal are clearly stipulated in sections 42 and 43 of the Land Disputes Settlement Act, CAP 33 R.E. 2002, Specifically S.43(2) which provides as follows:- " in exercise o f its revisionaiiy jurisdiction, the High Court (Land Division) shall have all the powers in the exercise o f its appellate jurisdiction 2 The section could be read together with Order XXIII Rule 1(b) of the Civil Procedure Code CAP 33 R.E. 2002and Section 76(2) of the same code. With due respect to the counsels the prayer sought for withdrawal of the appeal with a view of filing Revision proceedings is untenable and unknown under the Land Disputes Settlement Act, CAP 216. R.E. 2002 and the Civil Procedure Code. Worse, the counsel has not given any reasonable grounds for so doing. Even if the same were provided, or this was a fit case for granting permission to withdraw the appeal for purposes of instituting Review or Revision proceedings but the same will be subject to limitation, and the appellant shall be bound by the Provisions of the Law of Limitation Act, 1971 CAP 89. R.E. 2002 in the same manner as he instituted this appeal. Again it is unknown why the appellant should prefer revision for an appeal without sufficient grounds I while an appeal is a Statutory prescribed right of a party, but revision is within the discretionary powers of the court as per section 79 of the Civil Procedure Code, CAP 33 of 2002. More so Review proceedings too cannot be allowed were an appeal has been preferred in accordance with section 78 of the same code. I suppose the prayer is misconceived. Accordingly the leave to withdraw the suit with a view of filing Review proceedings at this stage is not granted. It is so ordered. A. F. NGWALA J UDGE 08/ 03/2009 08/ 05/2009 Coram: A. F. Ngwala (Judge) Appellant: Present 1st Respondent: Present 2nd respondent: Present B/c. Miss Haulath Court: Ruling delivered in chambers in the presence of the parties. Order: Hearing of the Appeal on 14/08/2009 A. F. NGWALA J U D G E 08/ 03/2009 4