CIVIL APPLICATION NO 698 01 OF 2023 MARIAMU ISSA MAGINGI VS THE ADMINISTRATOR GENERAL REGISTRATION INSOLVENCE AND TRUSTEESHIP AUTHORITY

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: MWARIJA. J.A., MAIGE. J.A., And MGEYEKWA, J.A.) CIVIL APPLICATION NO. 698/01 OF 2023 MARIAMU ISSA MAGINGI.................................................... APPLICANT VERSUS THE ADMINISTRATOR GENERAL, REGISTRATION INSOLVENCY AND TRUSTEESHIP AUTHORITY.................. RESPONDENT (Application for Revision on the Proceedings, Ruling and Order of the High Court of Tanzania at Dar es Salaam) (De-Mello. JM dated the 7th November, 2021 in Miscellaneous Civil Application No.614 of 2020 RULING 7th & 21st May, 2024 MGEYEKWA. 3.A.: The applicant has lodged a revision against the decision of the High Court of Tanzania, at Dar es Salaam, De -Mello, J. (as she then was) in Miscellaneous Civil Application No. 614 of 2020 dated 7th November, 2021. The brief facts that led to the present application are i that Plot No. 201 Kilimani low density in Dododma (the suit property), originally was owned by the late Alhaji Ahmed Mutalemwa who died intestate on 20th November, 2005. Following his death, in 2006, the High Court through Probate and Administration of Cause No. 16 of 2006 appointed Mustapha Mutalemwa, the deceased son as an administrator of the estate. According to the record, Mustapha Mutalemwa failed to discharge properly his duties and upon various complaints from the beneficiaries and on his own request, on 7th August, 2008, the High Court revoked his administration and the High Court appointed the respondent as a successor. According to the record, in the process of exercising its duties, the respondent agreed with the beneficiaries and the applicant that, the suit property be sold by public auction and the proceeds of the said sale be distributed to the beneficiaries including the applicant. The auctioneers made several attempts to sell the suit property without success. Subsequently, the suit property was illegally sold to (a third party) Mohamed Rashid. Aggrieved, the applicant filed a suit at the High Court (Land Division) vide Land Case No. 345 of 2014 against the Administrator General, Mabunda Auction Mart and Mohamed Rashid Mohamed praying for the High Court to declare the sale of the house void and nullity. In 2018, parties agreed to settle the matter out of court and registered the Deed Settlement on 2nd May, 2018. It appears that the applicant was unhappy with the implementation of the Deed of Settlement, hence, she preferred a Misc. Civil Application No. 614 of 2020 to the High Court. The High Court found that its hands were tied up to deal with the Deed of Settlement. It ordered the administrator to accomplish her duty within a month, failure of which the applicant could take appropriate measures to move the court accordingly. The decision of the High Court did not amuse the applicant, hence, came to this Court by way of revision seeking to assail the decision of High Court. The applicant's notice of motion was made under the provisions of section 4 (3) of the Appellate Jurisdiction Act (the AJA) and rule 65(1), (2) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) on the following grounds: 1. The High Court ruling and order is tainted with irregularities that the Applicant is granted with what she did not pray for. 2. The High Court ruling is vague and irregular in the sense that it does not clearly indicate what is granted and what is not granted. 3. The High Court ruling contains errors apparent on the face of the records that need to be examined and revised by the honorable court. When the application was called on for hearing on 7th May, 2024, the applicant appeared through Mr. Yusufu Hassan Sheikh who was assisted by Mr. Adolf Francis both learned counsel. The respondent was represented by. Mr. Mathew Fuko, who was assisted by Messrs. Samwel Mutabazi and Allen Mbuya, all learned State Attorneys. Before the hearing of the application commenced, Mr. Fuko keenly drew the attention of the Court that the application is untenable since the applicant had a right to file an appeal instead of revision. The respondent's counsel predicted his prayer for leave to argue on the said legal point under the provisions of Rule 113 (1) of the Rules, which was granted. As the practice of the Court, we had to determine the preliminary objection first before going into the merits or demerits of the appeal. Submitting in support of the preliminary objection Mr. Fuko argued that, as the applicant was a party to the impugned decision in Misc. Civil Application No.614 of 2020 which she had filed before the High Court, she was supposed to file an appeal instead of revision. Elaborating, the learned counsel argued that, the power of revision of this court cannot be invoked except in exceptional circumstances on which the present application does not fall. To buttress his contentions, the learned Principal State Attorney relied upon the decisions of the Court in JV Electrical & Electronics CO. Limited and Shangai Electric Power T & D Engineering vs Rural Energy Agency and two others, Civil Application No.162/01 of 2019 (unreported), where circumstances warranting revision were explained. Mr. Fuko's firmly contended further that the proper remedy which could have been taken by the applicant was to challenge the impugned 5 decision by way of an appeal. He stressed that revision cannot be used as alternative to an appeal. To fortify his contention, Mr. Fuko referred us to the decision of this Court in Hassan Ng'anzi Khalfan v. Njama Juma Mbega (Legal Representative of the late Mwanahamisi Njama) and Another, Civil Application No.218/12 of 2018 (unreported). In his response, Mr. Sheikh opposed Mr. Fuko's submission, and argued that the errors complained by the applicant are apparent. He elaborated that the High Court ruling and its drawn order are tainted with irregularities in the sense that, the reliefs in the ruling and the decree are at variance. He added that the ruling was too vague that it could not be known what was the final conclusion. He was sure that an appeal would not serve the purpose since the applicant was not aggrieved by the contents of the ruling and its resultant decree. On being probed by the Court, he conceded that the impugned decision contained some errors which were once corrected by the High Court but the Decree is still incompatible with the ruling. Mr. Sheikh added that in the case of JVC Electrical & Electronics CO. Limited 6 and Shangai Electric Power T & D Engineering (supra), the Court set out four circumstances wherein a party aggrieved by an order of the High Court may seek revision instead of appealing. He contended that the present application falls squarely in the second circumstances. He clarified that, in the impugned decision and drawn order, the errors cannot be corrected by an appellate Court rather by way of revision. In sum, Mr. Sheikh urged us to find the contentions of the respondent's counsel to be without a semblance of merits and he, accordingly, urged us to dismiss the preliminary objection. In his brief rejoinder, Mr. Fuko reiterated his submission in chief. He stressed that the alleged errors can be rectified by the same court. He added that the applicant cannot file an application for revision for the reason that they are dissatisfied by the decision of the High Court. He finally prayed the application to be struck out. We have considered the learned counsel rival contentions which in our view, raise jurisdictional issue. We hasten to remark at very outset that, in number of our decisions, we warned ourselves that before proceeding to hear an application or appeal on merits, this Court must 7 satisfy itself whether it is being properly moved to exercise its revisional jurisdiction as stipulated under section 4 (3) of the AJA. See for instance the cases of Moses Mwakibete v. The Editor-Uhuru and two others [1995] T.L.R and Electrical & Electronics CO. Limited and Shangai Electric Power T & D Engineering (supra). In Moses 3 . Mwakibete (supra). In the instant application, the confronting issue on which the parties butting heads is on the border line of revisionary jurisdiction from appellate jurisdiction of this Court. The law is settled that revisional power of the Court are not an alternative to its appellate jurisdiction, unless there are exceptional circumstances. We have observed so in a number of decisions. In Halais Pro-Chemie (supra), the Court relied on its previous decisions in Moses Mwakibete (supra)and Transport Equipment Ltd v D.P. Valambhia [1995] TLR 161, the Court held that: "Except under exceptional circumstances, a party to proceedings in the High Court couid not invoke the revision jurisdiction of the Court as an 8 alternative to the appellate jurisdiction of the Court." In the same vein, the Court in Halais Pro-Chemie (supra) held that:- "In our view this Court can be moved to use its revlsional jurisdiction under ss (3) only in cases where there is no right of appeal or where there is, it has been blocked by judicial process. Lastly where such right exists but was not taken, good and sufficient reason are given why no appeal was lodged." In the above authorities, the Court pronounced itself that, except where there are exceptional circumstances, the revisional jurisdiction of the Court should not be resorted to as an alternative to its appellate jurisdiction. In JV Electrical & Electronics CO. Limited and Shangai Electric Power T & D Engineering (supra), when affirming the holding propounded in Halais Pro-Chemie (supra), the Court set out four circumstances where an aggrieved party may seek revision instead of appealing. One, where the Court on its own motion calls for the record of the High Court for revision. Two, where there are 9 exceptional circumstances. Three, where matters complained of are not appealable with or without leave and four; where the process of appeal has been blocked by judicial process. To appropriately determine whether or not there were any exceptional circumstances for the applicant to opt for revision, we find it appropriate to reproduce hereunder the relevant extracts which the alleged variance is based on: 7 however and, in the interest of justice, Suo Motu order for accompiishment of the probate within one months (1) months, failure to which the applicant may take appropriate legal measures to move the Court accordingly. No order to costs regarding the nature of the Application as it originates from probate matter. It is so ordered." The relevant part of the drawn order is hereby quoted as follows: 'THIS COURT DOTH HEREBY ORDER THAT: The Application is granted and, warned the Applicant to file the Appeal within fourteen (14) days from the date of this Ruling." 10 In the instant application, the applicant's counsel tried to convince this Court that, the applicant's complaint against the High Court falls squarely in the ambit of the second exceptional circumstances. With due respect to the applicant's counsel, we are unable to agree with him as that does not fall under any of the exceptional circumstances that would legally entitle him to resort to the revisional power of the Court, instead of its appellate jurisdiction. Consequently, we declined to agree with Mr. Sheikh that the course taken by the applicant to invoke the revisional jurisdiction of the Court based on the variance between the ruling and order of the High Court was improper. We think the impugned decision could be challenged by way of an appeal. Had the applicant been aggrieved by the ruling and drawn order of the High Court, the proper remedy would have been to apply for rectification before the same court which determined the matter instead of lodging a revision before this Court. To this end, we are inclined to agree with the respondent's learned counsel that this application is untenable for being incompetent before us and, accordingly, we sustain the legal point, and strike it out. 11 Going by the cherished usage underlying a probate disputes, we give no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 20th day of May, 2024. A. G. MWARIJA JUSTICE OF APPEAL I. 3. MAIGE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 21st day of May, 2024 in the presence of Mr, Adolf Francis, learned counsel for the applicant and Ms. Magdalena Mwakabungu, learned counsel for the respondent is hereby certified as a true copy of the original. 12