john pius tsoxho vs herman paulo awe 2023 tzhc 23725 20 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISTRICT REGISTRY) AT ARUSHA MISC. LAND APPLICATION NO. 77 OF 2023 (Cf Application for execution No. 63 of 2016 before the District Land and Housing TRIBUNAL for Karatu at Karatu) JOHN PIUS TSOXHO........... ........................ ....... ............. APPLICANT VERSUS HERMAN PAULO AWE................ RESPONDENT RULING 13/12/2023 & 20/12/2023 GWAE, J This ruling originates from a preliminary objection raised by the respondent, Herman Paulo Awe. The respondent's P0 is based on two points of law to wit; 1. That, this court lacks jurisdiction to determine this application for being in respect of a matter before the Court of Appeal in Civil Appeal No. 525 of 2021 2. That the applicant's application is incompetent before this court for being brought while the applicant has not exhausted other available legal avenue Initially, the applicant, John Pius Tsoxho filed this application seeking an order granting him extension of time within which he can be able to file his application to for revision against the proceedings and order i of the District Land and Housing Tribunal of Karatu at Karatu ("DLHT") issued on 9th February 2023. It is through the applicant's affidavit especially at para. 3 and 4 of his sworn affidavit, there is disclosure of the fact that, the applicant happened to file Land Application No. 45 of 2018 before DLHT challenging the execution and handing over of the suit in favour of the respondent. Aggrieved by the Decision of DLHT, the applicant filed an appeal before this court via Land Appeal No. 3 of 2019. He was dissatisfied worth the decision of the Court, he thus appeal to the Court of Appeal of Tanzania through Civil Appeal No. 525 of 2021. Upon being served with the copy of the application, the respondent filed his counter affidavit seriously contesting the application. The counter affidavit is accompanied with a notice of preliminary objection containing the above points of law. When the matter was called on for hearing before me, both parties who appeared in person consensually sought and obtained the leave of the court to dispose of the PO by way of written submission. I shall consider the parties' written submission in the course of determining each limb of objection. Starting with the 1st point of objection, it is the submission of the respondent that, since there is an appeal to the Court of Appeal in respect 2 of the dispute involving the same parties, this court lacks jurisdiction to entertain this application for revision. To buttress his argument, he referred this court to the decision of the Court of Appeal in NIC vs. Kweyambah Quaker (1999) TLR where it was held that once a notice of appeal has been lodged , any dealing with or in connection to it can only be transacted in the Court of Appeal. On the hand, the applicant argued that, the submission by the respondent pertaining the 1st point of law is a total misdirection since this application for extension of time to file an application for revision against the order issued by DLHT on 9th February 2023 and not in respect of the appeal pending in the Court of Appeal. Examining the parties' affidavits and their respective submissions in respect of the 1st point of law raised by the respondent, I am of the settled mind that, the respondent has misdirected himself since the intended revision is not for the appeal before the Court of Appeal. That is to say, this application is aimed at challenging the subsequent execution order issued by DLHT on the 9th day of February 2023 as rightly argued by the applicant. Therefore, the 1st issue is misplaced since the court is entitled to ascertain correctness or otherwise of the order issued while there is an appeal before the Court of Appeal. 3 In the 2nd point above, the respondent argued that, it is wrong for the applicant to file this application as he has remedy or avenue to file an application for stay of the execution in the Court of Appeal. He then urged this court to adhere to the decision of the Court of Appeal in Halais Prochemie vs. Wella A.G (1996) TLR. 269 where it was held; "/I party to the proceedings in the High Court could invoke revisionai jurisdiction of the Court where the appellate process has been blocked by judicial process." Strongly praying for the court's order overruling the 2nd limb of the respondent's objection. The applicant submitted that, his application is competently filed before the court since it is not intended to revise the decision of the High Court or that of DLHT subject of the appeal before the Court. He added that, it was wrong for the DLHT's chairperson to re­ open the execution file that was closed. He thus added that, in the circumstances, the only remedy available is to apply for revision and not an appeal or stay of execution. Carefully considered the parties' submissions relating to the 2nd point of law above, I am persuaded that this application for extension of time within which to file an application for revision is competently before the court. I am of that view simply on ground that, the applicant's wishes are to challenge correctness or legality or otherwise of the order of the 4 DLHT while there is appeal before the Court of Appeal. Had the applicant been after challenging the decision of this court (Mzuna, J) through Land Appeal No. 3 of 2019 or if he was after having the decree of this court stayed pending hearing and determination of Appeal No. 525 of 2021 by the Court of Appeal, the only avenue would be before the Court of Appeal of Tanzania. Hence, principle articulated in Prochemie vs. Wella A.G (supra) is distinguishable from the circumstances surrounding the order intended to be challenged by way of revision. That said and done, the preliminary objection by the respondent by the respondent is overruled in both points of law raised. Costs of this PO shall be in the event. The applicant's application shall proceed being heard and determined on merit. It is so ordered DATED at ARUSHA this 20th December 2023 5