leah d sikombe 2 others vs elder mwembe sikombe admistrator off the estate of the late duncan edward sikombe 3 others 2023 tzhclandd 16928 12 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 313 OF 2023 LEAH D. SIKOMBE......................................................... 1st APPLICANT ANETH D. SIKOMBE....................................................... 2nd APPLICANT HILDA D. SIKOMBE....................................................... 3rd APPLICANT VERSUS ELDER MWEMBE SIKQMBE (Administrator of the estate of the late Duncan Edward Sikombe)...... ................... 1st RESPONDENT LINES SIKUTI NAWITI............................................... 2nd RESPONDENT RICHARD D. SIKOMBE................................................ 3rd RESPONDENT MSOLOPA INVESTMENT CO. LIMITED........................ 4th RESPONDENT RULING 28/8/2013 &12/9/2023 A. MSAFIRI, J. The applicants herein, instituted this Application under Section 79(1) (b) & (c) of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) and Section 41(1) of the Land Disputes Courts Act, Cap 216 R.E 2019 seeking for the following orders: - (1) That this Honourable Court be pleased to call for record, i examine and revise the proceedings, ruling and order of the District Land and Housing Tribunal of Kinondoni at Mwananyamala (Hon. Sillas, Chairperson) dated 18th April 2023 in relation to Misc. Land 132 of 2023 (sic) arising from Land Application No. 481 of 2021 as there exist serious irregularities, illegalities, impropriety and incorrectness that amount to exceptional circumstances which call for immediate intervention of the High Court before justice is irretrievably hijacked; (2) That this Honourable Court be pleased to quash the said ruling and order and make such orders as it deems fit; (3) Costs of this Application be borne by the Respondents; (4) Any other order and relief (s) this Honourable Court may deem fit and just to grant." The Application is supported by the joint affidavit of Leah D. Sikombe, Aneth D. Sikombe and Hilda D. Sikombe. It was contested by the joint counter affidavit of Elder Mwembe Sikombe, Lines Sikuti Nawiti, and Richard Sikombe. The 4th respondent did not file the counter 2 affidavit hence had no right to respond on the Application save for the matters on points of law. Along with the counter affidavit, the respondents filed the preliminary objections on point of law to the effect that: - (a) This application is unmaintainable in law since it is prematurely filed without Applicants first prefers (sic) an application to set aside ex-parte order passed against the 1st and third applicants in Misc Land Application No. 132 of 2023. (b) That the application is fatally defective for being supported by defective affidavit as foiiows:- (i) For being wrongly drafted by using the word we instead ofL (ii) For containing prayers (Hi) For containing ties and cheating for being signed by non - deponent. (iv) For defective Jurat of attestation. (v) For designating female Administratrix as Administrator. (c) That the application is bad in law for bringing the application for revision against interlocutory order. (d) That the application is bad in iaw for joining the 4h respondent in the revision. A person who was not an 3 original party to this case. (e) The application is bad in law for being sub-judice in terms of Probate Case No. 145 of 1997 filed by the applicants at Kinondoni Primary Court pending for Judgment to date and resjudicata in terms of Land Case No.481 of2021 dosed on 4/7/2023. The preliminary objection was heard orally. Mr. Mbwana A. Chipaso, learned advocate, represented the applicants and the respondents were represented by Mr Opiyo Marcellus, learned advocate. I have heard the submissions by the counsels of parties to the matter on all five grounds of preliminary objection and I commend them for their well-researched submissions along with the supporting authorities. In determining the objection raised, for the reasons I will explain later, I will start with the third ground of objection which states that; That the application is bad in law for bringing the application for revision against interlocutory order. Arguing in support of the third ground of objection, Mr Opiyo asserted that, the order which was issued in Miscellaneous Land Application No. 132 of 2023 was interlocutory which as per Section 74(2) of the CPC, such orders are not revisable or appealable. This 4 makes this Application to be defective. He prayed that the Application is devoid of merit and the same be dismissed with costs. In reply thereto Mr Chipaso submitted that the order which is sought for revision is indeed interlocutory order. However, he referred Section 74(2) of the CPC which provides that the interlocutory orders can be revised in a situation where such orders has the effect of bringing the main suit to its finality. He further cited the case of Tanzania Heart Institute vs The Board of Trustees of NSSF, Civil Application No. 109 of 2008, CAT, at Dar es Salaam, at page 13, and submitted that, the Court has powers to revise the interlocutory order in situation where there is illegality or impropriety. The counsel submitted further that, since there is an appointed Broker who was in the process of evicting all the tenants in a suit property, Plot No. 3 Block 31, Kinondoni, Dar es Salaam, and since the District Land and Housing Tribunal of Kinondoni at Mwananyamala (herein trial Tribunal) appointed the 4th respondent to evict the tenants in collaboration with the other three respondents, and she has started to effect that, and since the main case is pending before the said trial 5 Tribunal, which is Land Application No. 481 of 2021, in his view, it was proper to move this Court for revision of the proceedings and order of the trial Tribunal. In his rejoinder submission, Mr. Opiyo stated that, the counsel for the applicant has agreed that interlocutory orders are only appealable if they determine the case to its finality. He argued that, Miscellaneous Land Application No. 132 of 2023 did not determine the main case to its final. It was the minor order which was issued between or in the middle of the proceedings. The main case which is Land Case No. 481 of 2021 was decided on 04/7/2023. I have perused the order of the trial Tribunal in respect to Misc. Land Application No. 132 of 2021 dated 18/4/2023 and found that the Application was for temporary injunction whereas the trial Tribunal issued an order that Lines Sikuti Nawiti, the 2nd respondent herein be reinstated to the disputed house pending hearing and final determination of the main suit, which is Application No. 481 of 2021. The appellants, having been dissatisfied by the interlocutory order of the Tribunal, they have filed this Application seeking for this Court 6 to revise the Tribunal's order in the said Misc. Application No. 132 of 2021. Since it is not in dispute that the order of the trial Tribunal in Misc. Application No. 132 of 2023 was an interlocutory order and that it was issued while the main suit which is Application No. 481 of 2021 was pending before the trial Tribunal, then the pertinent issue here is whether the said order is revisable. Section 79 (2) of the CPC provides that:- 79(2); notwithstanding the provisions of subsection (1) no application for revision shall He or be made in respect of any preliminary or interlocutory decision or order of the Court unless such decision or order has the effect of finally determining the suit (emphasis added) As per the provisions of Section 79(2) of the CPC as reproduced herein above, interlocutory orders can be revised only if they disposes of the case, i.e. if they bring the main dispute to the final. The same was held in the case of Lucky Spin Ltd (Premier Casino) Ltd v Thomas Alcorn & Joan Alcorn, Revision No. 445 of 2015, HC Labour Division at Dar es Salaam. 7 Subscribing to the above position of the law, I have read the order of the Tribunal in Misc. Application No. 132 of 2021 and it is clear that the said order was not conclusive. The Tribunal ordered that Lines Sikuti Nawiti to be reinstated or returned back into the house in dispute where she was purportedly been evicted, pending the hearing of the main Application No. 481/2021. This order of the Tribunal neither determined the rights of the parties nor closed the doors to any of the parties. The applicants rights were not yet determined as the main Application was still pending for hearing before the same Tribunal. The applicants still had a right to be heard before the Tribunal on the issues in controversy and further the right to appeal when the matter was finally determined and concluded on merit. Basing on the foregoing reasons I find the third ground of preliminary objection to have merit and I sustain it. Having sustained the third point of preliminary objection, I see no need of determining the rest of the preliminary points of objection, as the third point of preliminary objection have the effect of disposing of this Application 8 and that was the reason I decided to determine it first. In the premises, basing on my findings in the third point of objection, I find that this Application has no merit and I proceed to strike it out with costs. 9