iiuminata mushi vssalima selemani juma the administratrix of the estate of the late selemani juma 2021 tzhclandd 674 27 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION No. 35 OF 2020 (Arising from Misc. Land Application No.448 of 2014) ILUMINATA MUSHI APPLICANT VERSUS SALIMA SELEMANI JUMA (The Administratrix of the Estate of the late SELEMANI JUMA) ...1^ RESPONDENTS. RULING. T.N. MWENEGOHA,J: This application is made under Section 41 and 43 (l)(b),(2) of the Land Dispute Courts Act, 2002(SIC), Cap 216 R.E 2019 and Order XLIII R.2 of the Civil Procedure Code, Cap 33 R.E 2019 (Herein after "The C.P.C."), In this application the applicant is seeking the Court to revise the decision of the Morogoro District Land and Housing Tribunal in the Application (herein after the trial Tribunal) No. 448 of 2019 in order to satisfy itself as to the correctness, legality, or propriety of that decision, the declaration that the said orders and proceeding of the trial Tribunal are illegal and improper. Costs of this application and any other relief this court deems fit to grant. The application is supported by the applicant's affidavit dated 01/09/2020. Both parties in this application were represented, while the applicant was represented by Mr. B.L. Tarimo, Advocate. The respondent was represented by Mr. Ndanu Emmanuel, Advocate. On the 18^ November, 2020 the respondent raised the preliminary objection that; That the applicant's application is devoid of merits as the same contravene the mandatory provisions of Section 79(2) of the C.P.C The hearing of this application proceeded by way of written submission. The preliminary objection and the main application were scheduled to be heard concurrently, the respondent was supposed to file submission on the preliminary objection on the 27/04/2021, reply by the applicant on the 11/05/2021 and rejoinder if any on the 18/05/2021. The applicant was supposed to file the written submission in chief on 27/4/2021, the respondent to file reply on the 11/05/2021 and rejoinder if any to be filed on 18/05/2021. First, I will proceed to determine the preliminary objection raised, and in case it has merit then it will mark the end of this application but if it does not, the main application will proceed to be determined on its merit. The respondent's preliminary objection is based on Section 79(2) of the C.P.C. The cited provision provides as follows; ''Notwithstanding the provisions of subsection (1), no appiication for revision shaii He or be made in respect ofany preiiminary or interiocutory decision or order of the Court uniess such decision or order has the effect of finaiiy determining the suit'. In his submission Mr. Ndanu submitted that, the order in which the applicant is seeking revision against, emanates from an application filed by the respondent herein as a Miscellaneous application (No. 448 of 2019) from the main application which was Land Application No. 147 of 2014 at the District Land and Housing Tribunal for Morogoro (herein after the Tribunal). That in the said Miscellaneous Application No. 448 of 2019, the respondent herein successfully sued the applicant herein who is a tenant in the deceased property from 2006 to date, for the payment of the rent arrears in the respondent's account for the year 2015/2016, 2016/2017, 2017/2018 and 2019. Mr. Ndanu continued to submit that, the order of the Tribunal granting the application, did not have the effect of finally determining the application before the Tribunal. That the applicant's application before the Tribunal (Application No. 147 of 2014) is for compensation against the 1^ respondent as he locked the suit premise/ leased property which was under the tenancy agreement between the 1^ respondent and the applicant herein (the applicant is the lessee and the 1^ respondent is the lessor). That the applicant claimed that the goods in the suit premise perished. That the respondent herein is not party of their dispute, neither is the party of their tenancy agreement. That the respondent herein was joined in the Application No. 147 OF 2014 after she had issued a notice to the applicant herein to vacate the suit property which belongs to the estate of their late father Selemani Juma, the estate which she is the administratrix. That the respondent herein, as administratrix of the estate of the late Selemani Juma, decided to issue the notice to vacate the suit premise to the applicant herein as applicant refused to discuss with the respondent issues concerning the suit premise, which is one among the estates of the deceased which she is administering. Mr. Ndanu further submitted that, the order of the Tribunal compelling the applicant to pay rent arrears as she is still using the suit premises while the matter is pending before the Tribunal, does not finalize the matter which is before the Tribunal. Mr. Ndanu further submitted that the applicant's application for revision is devoid of merit as it contravenes Section 79(2) of the C.P.C therefore, prayed for the Court to dismiss it with costs. When replying, Mr. Tarimo submitted that there is no dispute that the provision of Section 79(2) of the C.P.C requires that, the application for Revision should be on the order or decision with have the effect of finally determining the matter. He continued to submit that the Misc. Application No. 448 of 2019 did not only finally determined the dispute between the 2"^^ respondent in the main Application No.147 of 2014, but also created the number of illegalities in its proceedings and ruling and that it rendered application No. 147 of 2014 nugatory. Mr. Tarimo also submitted that the order that the applicant has to pay the total amount of T.sh 500,000/= per month as the rent to the 2"^ respondent Salima Selemani Msindl's account is illegal and arbitrary because it is against the tenancy agreement entered between the applicant and the 1^ respondent Hafidhi Selemani. Mr. Tarimo therefore prayed for the to Court dismiss the Preliminary Objection raised by the respondent. Passing through the parties' submissions, and the records of the application, I found out that it is not disputed that the applicant entered the tenancy agreement with the respondent. It is also not in dispute that the subject matter of the tenancy agreement which is the house (the suit premise) is the property subject to the estate of the late Selemani Juma, and that the applicant was aware from the beginning that the suit premise does not belong to the respondent. It is further not In dispute that the 2"^ respondent is an administratrix of the estate of the late Selemani Juma, and that the applicant as the tenant in the suit premise has not paid any rent since when she filed before the Tribunal, an Application No.147 of 2014 to date. I also, found out that in the main application number 147 of 2014 which is still pending before the Tribunal, the cause of action is breach of contract by the 1^ respondent, and compensation of damages accessioned by the breach of contract between the applicant and the 1^ respondent. Mr. Ndanu in his submission, provided that the applicant's Application for revision is against the provision of Section 79(2) of the C.P.C due to the fact that the Misc. Application No. 448 of 2019 filed by the 2"*^ respondent before the Tribunal, did not finalize the matter in the main Application No. 147 of 2014. The decision in the Misc. Application No.448 of 2019 only compelled the applicant to continue paying rent to the 2"^ respondent, as the applicant continued doing business while waiting for the outcomes of the main application. What is before the Tribunal in the main application is the Issue of breach of contract and damages due to the loss incurred by the applicant because of the breach of contract. After perusing the records before me I have to agree that this is the correct position. I am in agreement with Mr. Ndanu that, the instant application for revision is inappropriate, and it does contravene the provision of Section 79(2) of the C.P.C. This is due to the fact that the order which was granted by the Tribunal did not finally determine the main application No.l47 of 2014, the application is still pending to the Tribunal. Also, looking at the prayers which were presented before the Tribunal in the Misc. Application No. 448 of 2019 were reasonable due to the fact that the applicant likewise, successfully applied for the interlocutory order which enabled her to continue doing business in the suit premise while waiting for the Tribunal's decision in the main suit, throughout that period she has been doing business without paying rent, that is why the 2"^ respondent applied for payment of rent arrears to be paid while waiting for the final determination of the main suit. Mr. Tarimo said that the Misc. Application No. 448 of 2019 finalized the matter between the 2"*^ respondent, that the proceedings and ruling of the said Misc. application is tainted with illegalities. I did not see any illegalities in the proceedings and ruling of the Tribunal. As already discussed, the Miscellaneous Application No.448 of 2019 did not finalize the main application which is still pending at the Tribunal, therefore, the instant application for revision is inappropriate, untimely which cannot be entertained. In view of the above, the respondent's preliminary objection is sustained. Therefore, this Court has no basis of faulting the ruling and order of the Tribunal. Therefore, the instant application is dismissed with costs. It is so ordered. Dated at Dar es salaam this 27^^ day of October, 2021 Of o G T EGOHA. o 5 V UDGE. o d/vn o