Justine F

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CO RAM: MWANDAMBO. 3.A.. KIHWELO, J.A.. And. MGONYA, J.A.) CIVIL APPEAL NO. 292 OF 2023 JUSTINE F. BUFURE................................................ ............... APPELLANT VERSUS HAJI R. MWIKALO................ ............. ............. ........... ..RESPONDENT (Appeal from the decision of the High Court of Tanzania (Land Division) at Dar es Salaam) ( Mansoor. J.l dated the 30th day of January 2015 in Land Application No. 6 of 2013 JUDGMENT OF THE COURT 14th & 22nd February, 2024 KIHWELO, J.A.: This appeal arises from the decision of the High Court of Tanzania (Land Division) at Dar es Salaam in Land Application No. 6 of 2013 (Mansoor, J.) in which, the appellant lost the case. In that decision, the High Court quashed and set aside the judgment of the District Land and Housing Tribunal ("the Tribunal") which declared the appellant the lawful owner of Plot No. 298 Block 'B', Tegeta in Kinondoni Municipality, Dar es Salaam (henceforth "the suit property"). Aggrieved by the decision of the High Court, the appellant has come before this Court by way of appeal. i The background to the instant appeal is not so complicated to grasp, as it draws its genesis from the dispute that arose way back in 2011 when the appellant on 8thApril, 2011 lodged Application No. 113 of 2011 against the respondent and one Jack Pemba who is not a party to this appeal, but who, we shall explain at the later stage of this judgment. The appellant sought from the Tribunal, among other things, to declare that he was the lawful owner of the suit property and compel the respondent to effect transfer of the suit property to him. On 9th September, 2011 the Tribunal entered judgment on admission against the respondent. Furthermore, the Tribunal entered default judgment against one Jack Pemba who was the second respondent as hinted above, but did not appear despite the fact that notice of hearing was duly served upon him through substituted service by publication. Subsequently, on 2nd February, 2012 the Tribunal appointed MTC Court Brokers to execute the Tribunal's decree which was duly executed on 14th February, 2012. It is noteworthy that, on 16th March, 2012, one Ramadhani Mwikalo filed an objection against the execution. That application was dismissed by the Tribunal on account that it was overtaken by events since the execution had already been done. 2 At the same time, the respondent on 4th March, 2013 lodged an application before the High Court of Tanzania as hinted above. In that application, which was predicated on section 14 (1) of the Law of Limitation Act, Cap. 89 ("the LLA") and Section 43 (1) (a) and (b) of the Land Disputes Courts Act, Cap. 216 (the Act), the respondent prayed for the following orders: "1. That the honourable court be pleased to extend time to enable the Applicant apply for revision o f the proceedings\ decision and order o f the District Land and Housing Tribunal o f Kinondoni at Mwananyamaia in Land Application No. 113 o f 2011 dated 9hSeptember,; 2011. 2. That having extended time this honourable court may be pleased to call and revise the proceedings, decision and order o f the District Land and Housing Tribunal of Kinondoni at Mwananyamaia in Land Application No. 113 o f 2011 dated 9h September, 2011 The application was supported by the affidavit duly affirmed by the respondent. The appellant, sturdily opposed the application by the respondent on account that, allegations of perjury and fraudulent acts should have been taken before the criminal court for prosecution. 3 Upon hearing the parties on the merits of the application, the learned judge of the High Court found out that, there was no justifiable reasons advanced by the appellant for the court not to exercise its discretion to grant the prayers sought. Unhappy with that decision, the appellant has approached this Court by way of appeal. The appellant's Memorandum of Appeal is comprised of three grounds of complaint namely: 1. That the learnedjudge of the High Court erred in law by proceeding to determine the revision in the absence o f a proper application in court; 2. That the learnedjudge o f the High Court erred in iaw by determining the allegations o f fraudulent practice in civil revision; and 3. That the learnedjudge of the High Court erred in law by ignoring to state the rights ofparties in the revision. In the appeal before us, the appellant was represented by Mr. Francis Mwita, learned counsel, while Dr. Abdon Rwegasira, learned counsel appeared for the respondent. Mr. Jack Pemba who is no longer a party to this appeal as hinted before, appeared in person, unrepresented. Mr. Mwita prayed, in terms of rule 111 of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), and was granted leave to amend the notice of appeal, memorandum of appeal and the subsequent record of appeal so as to remove the name of Jack Pemba impleaded as second respondent. 4 Upon removing the name of Jack Pemba, we ordered the record to reflect the 1st respondent as sole respondent and proceeded with hearing straight away. The learned counsel lodged written submissions in support and opposition to the appeal which they fully adopted during the hearing. Mr. Mwita prayed to stand by his written submissions without more and invited us to allow the appeal with costs. On the adversary side, Dr. Rwegasira, prayed to stand by his written submissions, he then, briefly clarified some few issues and urged us to dismiss the appeal with costs. In the written submissions, arguing in support of the first ground of appeal, the learned counsel for the appellant faulted the judge of the High Court for making a determination of the application for revision without there being a formal application for revision before her. Referring us to pages 3 as well as 95 to 116 of the record of appeal, the learned counsel contended that, the respondent applied for enlargement of time to apply for revision which was granted. Unfortunately, the learned judge of the High Court entertained the application for revision despite the fact that the respondent did not comply with the order of lodging the application for revision as directed. In his view, the two prayers were distinctive, and therefore, the judge of the High Court was obliged to determine the application for revision upon the applicant formally lodging it as ordered 5 by the court in the first order. According to him, this was an omnibus application with two distinctive prayers that ought to be determined separately, since the second prayer wholly depended upon the determination of the first one. The learned counsel argued that the application for revision was not tenable in the absence of a separate formal application in compliance with the leave that was granted to file it. The learned counsel further contended that, the respondent failed to comply with the court order and the judge of the High Court erroneously entertained the revision application which prejudiced the appellant. He relied on the case of Mount Meru Flowers Tanzania Limited v. Box Board Tanzania Limited, Civil Application No. 260 of 2018 (unreported) for the proposition that parties should not be punished for errors committed by the court. We wish to interpose at this juncture and observe that, the authority in the case of Mount Meru Flowers Tanzania Limited cited by the appellant, in which we referred to our earlier decision in The Attorney General v. Ahmad R. Yakuti and 2 Others, Civil Appeal No. 49 of 2004 (unreported), does not seem to be relevant in the circumstances of the appeal before us for the reasons that, in that case, the learned judge of the High Court appeared to have realized that there was an error in the summons, yet, he proceeded to fault the appellant in the manner he acted and that is why we emphasized that, the principle that parties should not be punished for errors committed by the court was sound in the circumstances of that case. However, the circumstances obtaining in this appeal are not the same as those in Mount Meru Flowers Tanzania Limited cited by the appellant. In support of the second ground of appeal, the learned counsel contended that, it was erroneous for the learned judge of the High Court to have determined the issue of forgery which is a criminal matter in a civil suit. Elaborating further, the learned counsel submitted that, the judge of the High Court having examined the application and the averments in the supporting affidavit found it proven that there were imitations in the name and signature of the respondents in the deed of settlement and that there was fraud involved. In his view, since forgery is a criminal offence, it was erroneous for the judge of the High Court to have concluded that there was fraudulent practice. Reliance was placed on the case of Lazarus Estates Limited v. Beasley (1956) AER 341. The learned counsel was of the view that, it was contradictory for the judge of the High Court to have held that the court needed not investigate on whether or not Haji Mwikalo had signed the Deed of Settlement or participated in the proceedings while at the same time concluding that 7 there was fraudulent practice in obtaining the contract and the compromise deed for the settlement of the case before the Tribunal. Arguing in support of the third ground of appeal, the learned counsel very briefly contended that, it was erroneous for the judge of the High Court not to have stated the rights of the parties in revision. The learned counsel was of the view that, having held that the contract between the appellant and the respondent was obtained through fraudulent acts, the judge of the High Court did not state the fate the appellant who was a bonafide purchaser and particularly the fate of the purchase price of TZS 32,000,000.00 which he paid. On the adversary side, the learned counsel for the respondent, in response to the first ground of appeal prefaced his submission by contending that, the appellant's submission is vague, more confusing and based on glaring contradictions. Specifically, the learned counsel referred us to paragraph 4.1 of the appellant's submissions where the appellant submitted that the judge of the High Court decided the matter while there was no proper application before the court. He further referred us to paragraph 4.5 where the appellant argued that, there was no revision before the judge of the High Court to make determination. Finally, the learned counsel referred us to paragraph 4.6 where the appellant admittedly submitted that there was an application for revision which 8 combined two prayers but was supported by a single affidavit. He thus, submitted that, under those circumstances, this ground must fail on account of being vague. In his view, the High Court was properly moved under section 14 (1) of the LLA to enlarge time within which to lodge an application for revision and, furthermore, the High Court was properly moved under section 43 (1) (a) and (b) of the Act to call for and revise the proceedings of the Tribunal. Arguing in response to the second ground of appeal, the learned counsel submitted that, it is legally wrong to think that fraud is exclusively reserved for criminal courts and subject of criminal proceedings only. He contended that, civil courts have always decided issues of fraud on the established principle that fraud must be pleaded and specifically proved. To facilitate the appreciation of the proposition put forward by the learned counsel, he referred us to the case of Twazihirwa Abraham Mgema v. James Christian Basil, Civil Appeal No. 229 of 2018 and International Commercial Bank Limited v. Jadecam Real Estate Limited, Civil Appeal No. 446 of 2020 (both unreported). In both cases above, we held that, the trial court was entitled to have determined the allegations of fraud as long as it was pleaded and specifically proved. We also went further to hold that, allegations of fraud have to be proved on a higher degree of probability than that which is required in ordinary civil cases. In 9 all, the learned counsel argued that the two cases clearly indicate that civil courts have power, authority and jurisdiction to hear and determine issues based on fraud or fraudulent practices and therefore, the judge of the High Court correctly entertained and determined the issue of fraudulent practice. In response to the third ground of appeal, the learned counsel contended that, the learned judge of the High Court correctly decided the way she did, because the appellant was not a bonafide purchaser of the suit property. On the contrary, the appellant acted fraudulently in acquiring the suit property as such he should bear the costs. He referred us to the case of Katende v. Harider & Company Ltd [2008] 2 EA 173 which was quoted with approval by the Court of Appeal of Uganda in the case of Dr. David Kagwa v. Audrey Musiimenta, Civil Appeal No. 159 of 2017 (unreported) in which the doctrine of bonafide purchaser was considerably discussed and urged us to draw inspiration. In all, he reiterated his earlier prayer for dismissal of the appeal with costs. Having reflected on the submissions of the learned trained minds in light of the record of appeal, the question we are enjoined to answer, at this moment in time is whether the appeal before us is meritorious. We shall start with the first ground of appeal which we hasten to state that, this issue should not detain us much. We are aware that the law is settled 10 and clear that ordinarily an omnibus application is not permissible in law unless the prayers sought for are not diametrically opposed to each other. We have in several occasions declared an omnibus application incompetent and the remedy has been to strike it out. There is a considerable body of case law, see, for instance Rutagatina C. L. v. the Advocates Committee and Clavery Mtindo Ngalapa, Civil Application No. 98 of 2010 (unreported). However, the exception is where two or more prayers sought for are combined in one application and are not diametrically opposed to each other. We clearly stated this in the case of MIC Tanzania Limited v. Ministry for Labour and Youth Development and Another, Civil Appeal No. 103 of 2004 (unreported) in which, faced with an akin situation like the appeal under consideration, we held that: "Having perused the Chamber Summons and its supporting affidavit as well as the respondent's Counter Affidavit in the High Court, we are satisfied that the three prayers were properly combined in one Chamber Summons. They are not diametrically opposed to each other, but one follows the other. Once extension o f time is granted then an application for leave follows. As the respondents appear to concede, once leave is granted then the court may, in its discretion, grant or refuse to grant an order for stay o f execution li o f the challenged decision. Viewed from this perspective, the reason for combining the three prayers In one chamber summons becomes obvious: The application was, thereforef competently before the High Court". In the appeal before us, the record bears out clearly that the two prayers are not diametrically opposed to each other, but rather, one follows the other, and that is why the respondent stated clearly that, having extended the time, the High Court be pleased to call and revise the impugned proceedings. We have examined the submissions by the learned counsel for the appellant but we are unable to accept the argument that there was no formal application before the judge of the High Court to enable her revise the proceedings of the impugned judgment. The record of appeal is conspicuously clear that the Chamber Summons combined two prayers and the affidavit as well as the counter affidavit by the respondent dealt with both applications. In any event, the appellant's counsel did not demonstrate how his client was prejudiced by the approach the judge of the High Court adopted which is permissible in law, apart from stating in passing that the appellant was prejudiced. Next, we will determine the second ground of appeal. The counsel for the appellant has faulted the judge of the High Court for considering and determining the issue of forgery in a civil suit. In his view, since 12 forgery is a criminal offence, it was erroneous for the judge of the High Court to have concluded that there was fraudulent practice. What we gather from the submission of the counsel for the appellant, is that, he was unable to cite any provision of the law or any decided case to support his proposition. On the contrary, the counsel for the respondent referred us to the case of Twazihirwa Abraham Mgema (supra) and International Commercial Bank Limited (supra) in which we held that civil courts can determine and decide issues of fraud on the established principle that fraud must be pleaded and specifically proved and the standard of proof is higher than in ordinary civil suit. That said, this ground of appeal too fails. Finally, we will determine the third ground of appeal in which the complaint hinges on the failure by the judge of the High Court to have stated the rights of the parties in revision. In particular, the appellant's grievance was the failure of the judge of the High Court to have stated the fate of the purchase price of TZS 32,000,000.00 which he paid as a bonafide purchaser. The learned counsel for the respondent submitted at considerable lengthy that, the judge of the High Court correctly decided the way she did because the appellant was not a bonafide purchaser of the suit property rather, acted fraudulently in acquiring it. Our reading of the record quite obviously contradicts the versions of both learned 13 counsel. The application for revision was made under section 43 (1) (a) and (b) of the Act. That provision governs supervisory and revisional powers of the High Court over the Tribunal in which the High Court is empowered to call for, inspect the records of the Tribunal, and give direction as it deems appropriate. Furthermore, the High Court is empowered, where in its opinion, it appears that, there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it thinks fit. We, on our part, think the judge of the High Court, in respect of the final orders correctly resorted to. As to what exactly the judge of High Court held, having found that the proceedings before the Tribunal were erroneous in terms of the provisions cited above, we wish to let record of appeal, at page 13, speak for itself: 1'Accordingly; proceedings, judgment and compromise decree of the District Land and Housing Tribunal for Kinondoni at Kinondoni in Land Application No. 113 o f 2010 by Hon. Hemed, the Chairperson of the Tribunal are quashed and set aside, with costs" It is noteworthy that, the above excerpt clearly demonstrates in no uncertain terms that, the learned judge of the High Court acted within the 14 confines of the law by quashing and setting aside the proceedings of the Tribunal having found that they were irregular. The argument that the judge of the High Court ought to have stated the rights of the parties in the revision are erroneous and have no any grain of merit This ground equally has not merit. There can be no better words to express our view and conclude as we do that, the appellant has not been able to make his case warranting our order reversing the impugned decision. For those reasons, we find the appeal is devoid of merit. We accordingly dismiss it. DATED at DAR ES SALAAM this 21st day of February, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered on this 22nd day of February, 2024 in the presence of Mr. Mangiteni Marwa, learned counsel for the Appellant and Mr. Dr. Abdon Rwegasira, learned counsel for the Respondent, is hereby certified as a true copy of the angina . Ak m . A. S. yHUGULU DEPUTY REGISTRAR , |. COURT OF APPEAL