RULING LUCY MPILUKA RULING VS AKIBA COMMERCIAL BANK LAND REVISION NO

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND REVISION NO. 507 OF 2024 (Originating from Application No. 89 of 2023 of the District Land and Housing Tribunal for Mbeya) LUCY DANIEL MPILUKA …………………………………………….……………… APPLICANT VERSUS AKIBA COMMERCIAL BANK ……...........................……...…….….……….RESPONDENT RULING Date of last Order: 24th May, 2024 Date of Ruling: 13th August, 2024 KAWISHE, J.: The application for revision has been brought by way of chamber summons under the provisions of sections 43(1)(a) and (b) of the Land Disputes Courts Act, Cap 216 R.E 2019. It is supported with an affidavit of Lucy Daniel Mpiluka, the applicant. In the chamber summons the applicant prayed to be heard for the following orders: 1 (a) That this Court be pleased to call records of the District Land and Housing Tribunal for Mbeya in Application No. 89 of 2023 and revise the whole decision for the errors apparent on the face of the records involving injustice to the part of the applicant. (b) Land Application No. 89 of 2023 be heard on merit by the District Land and Housing Tribunal for Mbeya. (c) Cost of this application be provided for. The respondent’s learned counsel, Mr. Kamru Habibu Msonde filed a counter affidavit objecting the application, at the same time, he filed a notice of preliminary objection on point of law to the effect that: That, this Application for Revision is not maintainable in law for being preferred as an alternative to appeal against the decision or order which is appealable to this Honourable Court in terms of section 41 of the Land Disputes Courts Act Cap 216 R.E 2019. With the leave of this court it was ordered that, the objection be disposed of by way of written submission. Mr. Kamru Habibu Msonde, learned counsel represented the respondent while, Ms. Lucy Daniel Mpiluka, the applicant fended for herself. The brief facts of this matter as captured from the records available are as follows: In the District Land and Housing Tribunal for Mbeya, the applicant filed Application No. 89 of 2023. The respondent raised preliminary objections that, (i) that, the Land Application No. 89 of 2023 contravenes section 33 of 2 the Land Disputes Courts Act, Cap 216 R.E 2019; and (ii) that, the applicant had no locus standi to sue on Plot No. 18212 Plot ‘D’ Songwe. The trial tribunal sustained the preliminary objection raised hence, struck out the application. Aggrieved with the decision, the applicant filed this Land Revision No. 507 of 2024 in this court and the respondent once again raised a preliminary objection as hinted above. Submitting in support of the preliminary objection, Mr. Kamru argued that, this application for revision is not maintainable in law for being preferred as an alternative to appeal against the decision which is appealable to this court in terms of section 41 of the Land Disputes Courts Act Cap 216. R.E. 2019. He submitted that, where a party has the right to appeal cannot approach the court by way of revision. Supporting his argument, he cited the cases of Halais Pro- Chemie vs. Wella A.G [1996] TLR 269, Moses Mwakibete vs. The Editor- Uhuru and two Others [1995] TLR 134 and Transport Equipment Ltd vs. Devram P. Valambhia [1995] TLR 161. It was his submission that, the applicant had a right of appeal against the decision instead of making application for revision and there were no exceptional circumstances to move the court by way of revision. He prayed the application to be struck out with costs. 3 In reply to the preliminary objection, Ms. Mpiluka submitted that, the preliminary objection raised does not qualify to be objection as the respondent did not mention the provision of the law that has been contravened. The applicant referred this court to the case of Mathias Ndyuki and Others vs. Attorney General, Civil Application No. 144 of 2015. It was her submission that, the cited provisions of section 41 of the Land Disputes Courts Act has never been contravened hence, the preliminary objection is misplaced. That, the applicant applied for revision to call upon this court to revise the ruling of the trial tribunal in the preliminary objection. She added that, the High Court has the said Jurisdiction. In fortifying her assertion, she cited the case of Blass Michael vs. Said Selemani [2002] TLR 260. It was her submission that, section 43 (1) (b) of the Land Disputes Courts Act vests the High Court with jurisdiction with revisionary power to revise any proceedings, decision or orders made by the District Land and Housing Tribunal. That, the applicant filed an application for revision because there was no avenue to appeal as there is no room to appeal against interlocutory orders. The applicant prayed that, the preliminary objection raised be overruled with costs. As per the records available there was no rejoinder from the respondent. 4 Having gone through the rival submissions from the parties, I am set to determine the objection raised. In order to determine rationally, the following question will lead the way, that is, whether the application is competent. It is trite law that, in a suit whenever a preliminary objection is raised it must be ascertained first before proceeding with the suit into its merits. The respondent herein raised a preliminary objection that, this application for revision is not maintainable in law for being preferred as an alternative to appeal against the decision or order which is appealable to this court in terms of section 41 of the Land Disputes Courts Act. On the other hand, the applicant argued that, section 43 (1) (b) of the Land Disputes Courts Act vests the High Court with jurisdiction with revisionary power to revise any proceedings, decision or orders made and that she preferred revision as the interlocutory order made by the trial tribunal is not appealable. This means that, the applicant is in a way trying to fit her case in the principles developed in the case of Halais Pro-Chemie (supra) that, revision stands only where there is no right of appeal or where there is, it has been blocked by judicial processes. That, where the right exists but not taken then good and sufficient reasons are given why no appeal was lodged. She is of a firm view that, this court has jurisdiction to entertain her application. In her view, she advanced 5 the reason that, the decision of the trial tribunal in the preliminary objection is an interlocutory order which is not appealable. Considering the application and the objection raised, I wish to refer the case of Richard Julius Rukambura vs. Isack Ntwa Mwakajila and Tanzania Railways Corporation, Civil Appeal No. 2 of 1998 where the Court of Appeal stated that: “The question of jurisdiction is paramount on any court proceedings. It is so fundamental that in any trial even if it is not raised by the parties at the initial stages it can be raised and entertained at any stage of the proceedings in order to ensure that the court is properly vested with jurisdiction to adjudicate the matter before it.” It is correct as the applicant argued that, this court has jurisdiction to entertain revisions against decisions and or orders of the District Land and Housing Tribunals. But her application for revision before this court has been objected for being incompetent. The question to be answered, has the applicant properly moved this court? See also Patrick William Magubo vs Lilian Peter Kitali, Civil Appeal No. 41 of 2019 on the requirement of a court to satisfy itself on jurisdiction before deciding a matter before it. 6 The respondent’s counsel argued that, the proper remedy for the applicant was an appeal and not revision. The learned counsel cited section 41 (1) of the Land Disputes Courts Act which provides as follows: “Subject to the provisions of any law for the time being in force, all appeals, revisions and similar proceedings from or in respect of any proceedings in a District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court.” Whereas, the applicant moved this court under section 43 (1) (a) and (b) of the Land Disputes Courts Act which provides that: “(1) In addition to any powers in that behalf conferred upon the High Court, the High Court- (a) Shall exercise general powers of supervision over all District Land and Housing Tribunals and may at any time, call for and inspect the records of such Tribunal and give directions as it considers necessary in the interest of justice, and all such tribunals shall comply with such directions without undue delay; (b) May in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merit of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit.” From the provisions of the cited section, the applicant argued that, the objection is misplaced. However, in our jurisdiction it is settled law that, revision is not an alternative to appeal if an order/decision given is appealable. 7 In the case of Tanzania Telecommunications Co. Ltd and 3 Others vs. Tri Telecommunications Tanzania Ltd, Civil Revision No. 62 of 2006, the Court of Appeal quoted with approval the case of Hallais Pro- Chemis vs. Wella A.G [1996] TLR 269 and stated that: “Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke revisional jurisdiction of the court as an alternative to the appellate jurisdiction of the court.” See also Moses Mwakibete vs. The Editor-Uhuru and two Others [1995] TLR 134; Israel Mwakalabeya vs. Ibrahim Mwaijamba, Civil Application No. 21 of 1991 HC Mbeya (unreported). The Court of Appeal in the case of Halais Pro- Chemie (supra) which had very close issue like the case at hand, set a principle which binds this court in this application. The applicant in the case of Halais Pro- Chemie (supra) like the applicant herein, applied for revision of a judgment and decree of the High Court. The respondent filed a preliminary objection contending that the application was incompetent as it did not fall within the provisions of section 4(2) of the Appellate Jurisdiction Act. The applicant, requested the Court, ‘to call for and examine the record of the proceedings, judgment and decree of the High Court in order to satisfy itself as to the correctness of the adjudication in the aforementioned appeal and for an order nullifying the 8 entire proceedings in the said appeal on the grounds that the appeal was not properly before the Court. The Court was of the firm position that, a revision could only be entertained on matters not appealable. The same applies to the case at hand, the decision of the trial tribunal is appealable as per section 41 of the Land Disputes Courts Act. Further in her response the applicant stated that, she preferred the revision because the decision of the trial tribunal is an interlocutory order which is not appealable. I find it hard to go along with her line of reasoning. In my view, a decision which results from a preliminary objection is not an interlocutory order. I hold so basing on the position of the Court of Appeal in the case of Tanzania Posts Corporation vs. Jeremiah Mwandi (Civil Appeal No. 474 of 2020) [2021] TZCA 311 (16 July 2021) where it cited with approval the case of Seif Sharif Hamad vs. S.M.Z, [1992] TLR 43 defining interlocutory order. The Court updated the definition of interlocutory order as per the Black’s Law Dictionary (4th Edition) stating that: “An order which decides not the cause, but settles some intervening matter relating to it” The Court also referred the 9th Edition of the same dictionary which uses different words to derive the same understanding, it defines an interlocutory order to mean: 9 “An order that relates to some intermediate matter in the case, any order other than the final. Most interlocutory orders are not appealable until the case is fully resolved.” From the excerpts given, I am of the considered view that the decision of the District Land and Housing Tribunal is not an interlocutory order as claimed by the applicant. Thus, the impugned decision is not subject for revision hence, the applicant should have opted for the proper remedy before this court. That, being the case the issue raised is answered in the negative. In the circumstances, I agree with the respondent’s learned counsel that, the application in this court is incompetent as the applicant took a wrong approach. Therefore, I sustain the preliminary objection and strike out the application with costs. It is so ordered. Right of Appeal explained to an aggrieved party. Dated and Delivered at MBEYA this 13th day of August, 2024. E.L. KAWISHE JUDGE 10 Court: Ruling delivered virtually before the applicant, Ms. Lucy Mpiluka and Mr. Felix Kapinga respondent’s learned counsel. E.L. KAWISHE JUDGE 13/8/2024 11