Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 640 OF 2023 (Originating from the Land Application No. 253 of 2019, of the District Land and Housing Tribunal for Ilala District, Hon. I. R. RUGARABAMU, Chairman, Judgment delivered on 18/01/2022) KIANGWA TRADING COMPANY................................. 1st APPLICANT ABDUL MOHAMED KITUNZI....................................... 2nd APPLICANT VERSUS MUZINA ALAWIIDARUS................................................ RESPONDENT RULING Date of last Order: 30/01/2024 Date of Ruling: 31/01/2024 MWAIPOPO, J: This ruling seeks to address the objection raised by the counsel for the Respondent on 30th of January, 2024, against the Application for extension of time within which the Applicants could file an Application for Revision of Judgement and Decree of the District Land and Housing Tribunal for Ilala at Ilala in Land Application No. 253 of 2019. The impugned decision was delivered on 18th January, 2022 by Hon. Rugabaramu, which according to the Applicant, is tainted with irregularities and illegalities. At the commencement of hearing the Applicants were represented by the learned Advocates Benedict Muta and Peter Bana while the Respondent enjoyed the services of learned counsel Fredrick Mpanju. The learned counsel for the Applicants was the first to take the floor. It was his submission that it had come to their attention that the Application has i some defects and that they cannot proceed to argue it. The learned counsel prayed for the Court to withdraw the Application with leave to refile it within 14 days. He submitted that the reason for the withdrawal is based on the fact that, in their Chamber Application, the Applicants are requesting for extension of time to file an Application for revision of the whole Decision in Land Application No. 253 of 2022 instead of challenging an order for the closure of the factory issued on 2nd December, 2019 by the Tribunal. The learned counsel has thus acknowledged that there are some defects and prayed for the Court to withdraw the matter. With regard to the costs, the learned counsel prayed for them to be in the main Application that will be granted. On his part, the learned counsel for the Respondent began his submissions by pointing out to the Court that he did not have any objection with the prayer for the withdrawal of the matter advanced by the learned counsel for the Applicants. He submitted that; the learned counsel for the Respondent has discovered that the Application is defective since the Applicants are pursuing Revision in a situation where they have or had the right to appeal and had already begun to pursue the same before the DLHT and this court. In the course of his submissions the learned counsel proceeded to argue that the learned counsel for the Applicant has conceded to the fact that the Application is defective and therefore anything which is defective is subject to be struck out and not withdrawn. He thus prayed for the court to strike out the Application. With regard to leave to refile the Application, the learned counsel for the Respondent prayed for the Court not to fall into the trap of granting leave to refile the matter since when the matter is struck out by the court, the Applicant is always at liberty to file it. As for the costs, the learned counsel prayed for the Respondent to be awarded costs. He dismissed the submissions by the learned counsel for the 2 Applicants that costs should be in the main cause since, the new Application if filed, will be separate from the one at hand. In rejoinder, the learned counsel for the Applicants reiterated his submissions in chief. Having heard the submissions of the parties I now proceed to analyze the issues raised as follows: - With regard to the prayer for the withdrawal of the Application, the learned counsel for the Applicant has conceded that the Application is defective for want of challenging the whole decision of DLHT in Land Application No. 253 of 2019 instead of challenging an order for closure of the Factory premises dated 2nd December, 2019. The learned counsel for the Respondent has argued that the Application is superfluous since the Applicants had the right to appeal. Based on the records before this court, I have observed that the Application before this Court does not address the intended prayers as argued by the learned counsel for the Applicant. The same Application also negates the fact that an Application for Revision cannot replace an Appeal or appellate processes considering the trend of the events that happened at the DLHT and the submissions of the learned counsel for the Respondent. In the case of Alli Chamani versus Karagwe District Council and Another Civil Appeal No. 148/2020. CAT Bukoba, the Court laid down the legal prerequisites to move the Court to invoke its revisional powers pursuant to section 4(2) and 3 of AJA that is; One, where there are irregularities to the proceedings in the High Court. Two, where the appellate process has been blocked by judicial process. Third, where the decision or order is not appealable and fourth, the fact that revision is not an alternative to appeal. 3 See also the case of Ramadhani Myolele vs. Hamad All Islam, Misc. Civil Application No. 40 of 2022] HCT Morogoro where Ngwembe J as he then was held that; Revision is not an alternative to appeal and should never be taken as an alternative to appeal. Since the Applicant intends to challenge the whole of the decision of the DLHT by way of Revision before he has exercised his right of Appeal then, the said Application is incompetent as argued by the counsel for the Respondent. What now is the effect of an incompetent Application? In the case of Leons Silayo Ngalai V Justine Alfred Salakana, Civil Appeal No. 38 of 1996 the CAT held that An incompetent appeal amounts to no appeal ...under such circumstances what the court does is to strike out the purported Appeal off the Register In the case of Methusela vs Matiko Marwa Mariba CAT Civil Application 6 of 2006 the full Court categorically stated that: The remedy for an incompetent appeal or application is to strike it out. Therefore based on the reasoning and position adopted in the cases above, the submissions of the learned counsel for the Respondent and the fact that the learned counsel for the Applicant has also conceded to the fact that the Application is defective, I proceed to strike out the Application for being defective and therefore incompetent. As for the costs, the learned counsel for the Applicant has argued that the same be in the new Application, while the Respondent has requested for costs to be awarded in his favour. It is trite law that costs are in the discretion of the Court, (See section 30(1) of the CPC RE 2019 and where the Court directs that any costs shall not A follow the event, it shall state its reasoning (See Section 30(2) of the CPC RE 2019). Based on the above provisions and in the exercise of my discretion on the prayer for costs, I have considered the fact that the matter had not progressed into full hearing and therefore costs if any, could be very negligible. Similarly, I have also taken into consideration the readiness of the learned counsel for the Applicant to concede to the defect and withdraw his matter in court, thereby saving courts time and that of the parties based on the above reasons. In the upshot, I proceed tp.strike out the Application and order each party to bear its own costs. ~ It is so ordered. 11^: x’ M/aipopo r, WSS& JUDGE 31/01/2024 The ruling delivered this 31st day of January, 2024 in the presence of Mr. Benedict Muta and Mr. Peter Bane learned Advocates for the Applicants and Mr. Fredrick Mpanju learned Advocate for the Respondent, is hereby certified as a true copy of the original. S. D. MWAIPOPO JUDGE 31/01/2024 5