kasiano dowani vs dismas kawelela kapufi 2020 tzhclandd 166 5 august 2020

IN THE HIGH COURT OF TANZANIA [LAND DIVISION] AT SUMBAWANGA LAND REVISION NO. 01 OF 2020 (From the Decision of the District Land and Housing Tribunal of • Sumbawanga District at Rukwa in Misc. Application No. 42 of 2019) KASIANO DOWANI •••••••••••••••••••••••••••••••••.•••••••••••••••••••• APPLICANT VERSUS DISMAS KAWELELA KAPUFI ••••••••••••••••••••••.••••••.••.•RESPONDENT JUDGEMENT 28th May - osth August, 2020 MRANGO,J The applicant herein has preferred this application under certificate of urgency made under section 79 (1) of the Civil Procedure Code, Cap 33 RE 2002 seeking for this court to examine the records, ruling of the Misc. Land Application No. 53/2019 originating from Misc. Land Application No. 42 / 2018 and former Land Dispute No. 11 of 2017 of Matanga Ward Tribunal so as to satisfy itself as to the correctness, legality and propriety of the same and revise it by setting aside the whole proceedings for contravening the Act of Parliament. The application is supported by an affidavit sworn by the applicant himself. 1 At Matanga Ward Tribunal applicant filed land dispute No. 11 / 2017 against the respondent claiming a piece of land measured 4 acres. The dispute was determined in favour of the respondent. Aggrieved the applicant lodged an appeal No. 53 / 2018 at the District Land and Housing Tribunal challenging the decision of the Ward Tribunal. However, the respondent raised a point of preliminary objection to the effect that the appeal was filed out of time. The Appellate Tribunal sustained preliminary objection as raised by the respondent by dismissing the appeal with costs. Dissatisfied the applicant filed Misc. Land Application No. 42 of 2019 at the District Land and Housing Tribunal for Rukwa seeking enlargement of time for him to file the appeal out of time. However, the respondent raised a point of preliminary objection to the effect that the application for extension of time to file an appeal after the earlier appeal No. 53 /2018 of which was dismissed for being time barred is untenable and barred by law. The appellate Tribunal sustained the preliminary objection as raised by the respondent by dismissing the application without costs. Aggrieved by such decision, the applicant hence lodged this application for revision. 2 When the application was called on for hearing, the applicant appeared in person, unrepresented while the respondent had a legal service of Mr. Peter Kamyalile - learned advocate. Mr. Peter Kamyalile prayed to argue the application by way of written submission. The Applicant conceded to the prayer. The applicant in supporting of his application, he submitted that being a blind man, very poor and unrepresented, due to bureaucracy he was not issued with a copy of judgement hence made him to file an appeal out of time as he was not aware of the date of judgement. He submitted further that, not only above reason he was also sick as a result of such fact he filed an appeal out of time as he used to attend treatment on various occasions. He submitted that he filed competent application with relevant authority seeking leave to appeal out of time with sufficient reasons given, however the application was dismissed on technicality contrary to Article 107A of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time. He argued that after having exhausted all the remedies for seeking justice before the appellate tribunal by his application, he now came to this 3 court seeking the sympathy and leniency of the court to make revision by calling and examine the records, ruling of the Misc. Land Application No. 53 / 2019 originating from Misc. Land Application No. 42 / 2018and former Land Dispute No. 11 of 2017 of Matanga Ward Tribunal so as to satisfy to the correctness, legality and propriety of the same and revise it by setting aside the whole proceedings for contravening the Act of Parliament. He went on saying that it is trite law that justice must not only be done but must be seen to be done. He said in the case at hand, it is not sufficient that justice was done as the applicant himself was not heard in any circumstance despite the fact that he has a point of law to challenge the decision of Matanga Ward Tribunal as the same was not properly constituted. He further argued that under section 11 of the Land Dispute Act, Cap 216 RE 2002 the Ward Tribunal is properly constituted if it is composed of not less than four and not more than eight members. The same was not met by the tribunal. He said the gender requirement was not met; hence he prayed for the court to invoke its power to revise the decision of the Ward Tribunal. He cited the case of this court of Elias Horo versus Yohana Machawa, Misc. Land Appeal No. 171 of 2016 where 4 the court allowed an appeal in respect of non-compliance with section 11 of the Land Dispute Act, Cap 216. He submitted further that there is also the point of law to challenge the sale agreement deed between the applicant and the respondent as the applicant is a blind man, however the sale agreement bears the hand signature of the applicant while he cannot see due to vision impairment. He argued that he has exhausted all remedied available, thus he prayed for this court to revise the proceedings, judgement and decision of Matanga Ward Tribunal. In reply, Mr. Peter Kamyalile submitted that the present application is lacking merit for the reasons he has pointed as hereunder. He submitted that the application is untenable on account that the applicant had a right to pursue an appeal. He said it is trite law that a revision does not lie where there is a right to appeal. In the present case, he argued that since the applicant was the party to the case has right to appeal hence this application is not proper before this court. The position was laid down in the case of Matembas versus Yamulinga [1968] E. A 643, where the Court of Appeal for Eastern Africa held that, 5 " A revision does not lie where there is right to appeal" He cited also the case of Abdu Hassan versus Mohamed Ahmed [1989] TLR 181 where the court held that. "(l)The High Court revisional powers under section 79 (1) of the Civil Procedure Code of 1966 are limited to cases where no appeal lies and issues such as whether the subordinate court has exercised jurisdiction not vested or if vested, whether it has failed to exercise the same or has acted illegally or with material irregularity" He submitted further that it is trite law that the High Court can entertain application for revision under section 79 (1) of the Civil Procedure Code, Cap 33 RE 2019 if three conditions has been met such as if the court has exercise jurisdiction not vested in it, if the court has failed to exercise jurisdiction vested in it; or if the court acted in the exercise of its jurisdiction illegally or with material irregularity. He strong argued that the applicant in this application and in the written submission has failed to show the above element to warrant this court to grant his application. The submission of the applicant he said to have based on challenging the decision of the Ward Tribunal instead of that of District Land and Housing Tribunal, thus the application before this 6 court is pre matured as this court cannot be moved to revise the decision of the Ward Tribunal. This court having keenly considered the arguments of both sides, as submitted by the applicant and that of the learned advocate for the respondent, the crucial question is whether the application is meritorious. It is undisputed that the applicant filed land dispute No. 11 / 2017 at Matanga Ward Tribunal against the respondent claiming a piece of land measured 4 acres. The dispute was determined in favour of the respondent. Aggrieved the applicant lodged an appeal No. 53 / 2018 at the District Land and Housing Tribunal challenging the decision of the Ward Tribunal. However, the respondent raised a point of preliminary objection to the effect that the appeal was filed out of time. The Appellate Tribunal sustained preliminary objection as raised by the respondent by dismissing the appeal with costs. Dissatisfied the applicant filed Misc. Land Application No. 42 of 2019 at the District Land and Housing Tribunal for Rukwa seeking enlargement of time for him to file the appeal out of time. However, the respondent raised a point of preliminary objection to the effect that the application for extension of time to file appeal after the earlier appeal No. 53 /2018 of 7 which was dismissed for being time barred is untenable and barred by law. The appellate Tribunal sustained the preliminary objection as raised by the respondent by dismissing the application without costs. It is settled principle of law that revision does not lie where there is a right to appeal. The fact that the Land Appeal No. 53 of 2018 was dismissed by the Appellate Tribunal for being time barred, the applicant ought to have appealed to the High Court against the dismissal order. What the applicant did, that is to file an application for extension of time to the same tribunal was wrong with regard the position of the law. Even, the appellate tribunal could have strike out the appeal instead of dismissing it. The effect of dismissing order or strike out order was discussed in the old case of Ngoni Matengo Cooperative Marketing Union Ltd versus Alimahomed Osman [1959] E. A 577, the defunct Court of Appeal for Eastern Africa made the following statement of principle: "This court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to strike out the appeal as being incompetent, rather than to have 8 "dismissed" it, for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies that there was a proper appeal capable of being disposed of" The only remedy available to the applicant in respect to the dismissed appeal as rightly argued by the respondent was to appeal to the High Court against it. The revision application made by the applicant in the present case is pre matured as there was an existing right of appeal against the dismissed appeal. The revisional powers of the High Court is provided under section 79 (1) of the Civil Procedure Code, Cap 33 RE 2019. This provides thus. (1) The High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, . Therefore the present application is pre matured filed before this court, hence the same is incompetent for the reason stated above. The application is hereby dismissed with costs. It is so ordered. 9 ~.___- D. E. MRANGO JUDGE ) 24.06.2020 Date 05.08.2020 Coram Hon. D.E. Mrango - J. Applicant Present in person Respondent Present in person B/C Mr. A.K. Sichilima - SRMA COURT: Judgment delivered today the os" day of August, 2020 in presence of both the parties in persons. Right of appeal explained. D.E. MRANGO JUDGE 05.08.2020 10