habibu hemed mvungi versus access bank t ltd 2 others 2023 tzhclandd 16613 30 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) " AT DAR ES SALAAM LAND REVISION NO.IO OF 2023 (Originating in Land Appiication No. 345 of 2020 by the District Land and Housing Tribunai for Kinondoni) HABIBU HEMED MVUNGI APPLICANT VERSUS ACCESS BANK(T) LTD 1®^ RESPONDENT., SALOME FREDRICK MBWANGA 2"° RESPONDENT WAUNGWANA AUCTION MART RESPONDENT Dat^ofLast Order: 07.06.2023 Date ofRuling: 30.06.2023 RULING T. N. MWENEGOHA,3. The Applicant wanted this Court to caii for, inspect and then revise the proceedings and decision given by Hon. Wambiii, vide Land Application No. 345 of 2022, dated 27"^ January, 2023, given at the District.Land and Housing Tribunai for Kisarawe. The Appiication was made under section 43(l)(a) and (b) of the Land Disputes Courts Act, Cap 216 R.E 2019. The same was supported by the affidavit of the appiicant, Habibu Hemed Mvungi. It was heard by written submission and exparte against the 1st and 3'''' respondents. Advocate Dennis Maiamba, appeared for the appiicant, while Advocate Haruna Ntahema, represented the 2"'* respondent. . Submitting for the Appiication, Mr. Maiamba was of the view that, the proceedings were made without recording the assessors' opinion.' This 1 was contraty to Regulation 19(2) of the Land Disputes (District Land and Housing Tribunal Regulations), GN No. 174 of 2003 and section 23(2) of the Land Court Disputes Act, 216 R.E 2019. Hence, the Trial Tribunal composed the judgment without the opinion of assessors. That is a fatal mistake and has led to miscarriage of justice. He also reffered the case of Tubone Mwambeta versus Mbeya City Council, Civil Appeal No. 287 of 2017, Court of Appeal of Tanzania and Ameir Mbarak and Azania Bank Corp Ltd versus Edger Kahwili, Civil Appeal No. 54 of 2015, Court of Appeal of Tanzania. ^j .v' In reply, the counsel for the 2"'' respondent maintained that, this Application is incompetent as the applicant is challenging an order made by the Tribunal on the 17'^ November,2022, where the defence hearing proceeded exparte in absence of the applicant. He was supposed to apply for setting aside the said order, under Regulation 11(2)of the Land Disputes (District Land and Housing Tribunal Regulations), GN No. 174 of 2003. He cannot therefore, apply for a Revision. The instant Application is premature. Even if the applicant is not challenging the said order, but the whole proceedings and decision, the remedy available is an appeal and not a Revision, as provided for under Regulation 24 of the Land Disputes (Distrirt Land and Housing Tribunal Regulations), GN No. 174 of 2003. That this position was also well explained in Transport Equipment Ltd versus Devram Valambhia (1995) TLR 161 and the case of Christopher Lugiko versus Ahmednoor Mohamed Aliy(2014) TLR 140. ■;or. .3;; In rejoinder, the applicant's counsel insisted that, three remedies are availabie at the disposai of the applicant in respect of the impugned decision. That is to say, there is an Appeai, Review or Revision and no ruie is in piace to bar the appiicant to make a choice on the three avaiiable remedies. I have gone through the submissions of the parties through their respective counseis, aiong with their affidavit and counter affidavit. The issue for determination is whether the Appiication has merits or not. On records, I have the impugned decision, annexed to the affidavit (Annexure HHM-1). The same shows that, it was deiivered on the 17^ January, 2023, where the appiicant was also a party (applicant) in the said case. He was in fact chaiienging the saie of a suit property, used as security for a loan form the P' respondent. He participated in the hearing by parading his witnesses and producing exhibits, until the case came to an end, in favour of the respondents. Being a party to the said proceedings which conciuded the matter to its finaiity, he cannot seek to revise the same, whiie he has a right to appeal at his disposai. It has long been settled that, an Appiication for Revisions is not an alternative right to appeai see Transport Equipment Ltd versus Devram Valambhia (supra). Yes, I agree by the applicant's counsel that, there are number of remedies at the applicant's disposai, with regard to the impugned decision. However, the applicant cannot invoke the remedies blindly. Each remedy is there based on the circumstances surrounding the applicant. If the appiicant was not party to the said proceedings, the Appiication for Revision was not proper to him. As of now, the case is incompetent, owing to the right of appeal which is available to him. In the end, the application is struck out with costs. It is so ordered. T IWENEGOHA o JUDGE o % CO 30/06/2023 o N <0 Lh