MICHAEL GRADUCE OSSOO CIVIL REVISION

IN THE HIGH COURT OF TANZANIA MUSOMA SUB- REGISTRY CIVIL REVISION NO. 000021094 OF 2024 REFERENCE NO. 202408271000021094 {Arising from Application No. 1116 of2021 and Application No.337 of2022 of District Land and Housing Tribunal for Mara at Musoma)

BETWEEN MICHAEL GRADUCE OSSOO............................................................. APPLICANT

VERSUS RHOBI ALPIUS.............................................................................................. 1stRESPONDEN KEZIA GRADUCE OSSOO................................................... 2nd RESPONDENT MUGABO AUCTION MART & COMPANY LIMITED............. 3rd RESPONDENT WANENGA MAGESA........................................................................................4thRESPONDEN

RULING 03rd & 12th December, 2024 M. L. KOMBA, J. This is an application for revision is brought by way of chamber summons under section 43 (1) (b) of Land Disputes Act, Cap 216 R.E 2019 and section 79 (1) and 95 of the Civil Procedure Code, Cap 33 R.E.

2019. The applicant is praying for the following orders: Page 1 of 8 1. That, this honourable court be pleased to call for records of application No. 1116/2021 & No. 337/2022 of Musoma District Land and Housing for revision.

2. To quash the decision for both application No. 1116 of 2021 and Application No. 337 of 2022 of Musoma District Land and Housing.

3. To deciare the sale was unlawful, and 4. Cost for this application be improvised. Briefly what give raise of this application can be summarized as follows; That, the applicant claims that the sale which was conducted by the 3rd Respondent on 4th March 2023 was illegal due to irregularities in auction and that the 2nd Respondent did not have the right over the property nor the title to pass to purported buyer, the decision of Nyamimange Ward Tribunal on the case No. 02/2020 was un-executable and during execution the 2nd Respondent informed the trial Tribunal that she is not the owner and not the administratrix but the trial Tribunal ignore and continue with the process. Previous 1st respondent had a land dispute with 2nd respondent that the 2nd respondent had encroached to the land of the 1st respondent by removing fence. It was decided by the Ward tribunal that 1st respondent was lawful owner and 2nd respondent to leave the disputed land. During execution the Page 2 of 8 District Land and Housing Tribunal (the DLHT) in case number 468 of 2020 ordered the 2nd respondent to leave and granted costs to her. 1st respondent filed application No. 1116 of 2021 for costs in which he was granted some amount. 2nd respondent failed to honor tribunal decree hence the house subject to this application was attached as part of execution. Applicant was annoyed by the whole process and

confronted this court with application to make revision of the whole process. When served with chamber summons, counsel for the 1st and 4th respondent filed Preliminary Objection (PO) that; the application for revision is incompetent for being preferred against two incongruent applications that is, Application No. 1116 of 2021 and Application No. 337 of 2022 cannot be challenged in one forum. As custom I had to entertain PO before determine the application. When the matter was scheduled for hearing of the PO, Mr. Sostenes Kulola appeared for the applicant while Mr. Daudi Mahemba for the 1st and 4th respondent both being advocates. Page 3 of 8 Mr. Mahemba submitted that the applicant prayed this court to recall records of two different files which was decided in different time, Misc. Application No. 1116 of 2021 was application for execution and was decided by the DLHT on 20 July 2022 while the other is application for execution No. 337 of 2020 which was decided on 06/01/2023. To him that was not correct because Misc. Application No 1116 of 2021 was about taxation in bill of costs where DLHT taxed TZS 3,442,000/ while insisting that the Procedure to challenge taxation in bill of cost is provided in under Order 7 rule 1 of the Advocates Remuneration Order, GN. No. 264 of 2015 (the Order) that aggrieved person is supposed to file reference to the High Court and not revision.

Therefore, the order of taxing officer cannot be challenged by revision. On the other side he submitted that application No. 337 of 2020 was filed and recorded in the year 2020 but the application has written application No. 337 of 2022. There is no case with number 337 of 2022. Record show case No. 337 was registered as No. 337 of 2020 and was decided on 06/01/2023. He insisted that the two files cannot be revised on the same time as the latter was about execution and the 3rd respondent was appointed to perform his duties and therefore two orders were supposed to Page 4 of 8 be challenged differently. For instance, counsel said Taxation is challenged by the party who is ordered to pay but applicant in this application was not ordered to pay the said money, it was Kezia the 2nd respondent who was ordered to pay and therefore applicant has no locus in taxation. Generally, he was of the submission that application was wrongly filed and prayed it be dismissed with costs. Mr. Kulola conceded that ruling with No. 337 of 2022 were wrongly cited as it never existed and it was slip of the pen. However, he was of the submission that Chamber summons is court document which cannot be challenged by counsel as he did, the only mandate he has was to challenge the affidavit. He went on submitting that it is the duty of the court to entertain chamber summons, hear parties and make decision.

The applicant was not party to any case which is subject of this application and therefore he submitted that if a person is not party to a case he is allowed to apply for revision. He prayed the PO to be overruled and prayed for an order for correction. During rejoinder Mr. Mahemba was satisfied that counsel noted the matter with number 337 of 2022 is inexistence and therefore he said Mr. Kulola Page 5 of 8 accepted this court has nothing to call for revision. To him that was not slip of the pen. He further clarified that if the applicant was not party to cases, then why he needs it be reviewed if he is not affected by the order in bill of costs. My duty is to determine if PO has merit. This court is asked to call and examine proceedings and orders in application No. 337 of 2022. Counsel for applicant accepted that the case is in existence and as submitted by Mr. Mahemba, I have nothing to call and examine. On the other limb, I was asked to call and examine application Number 1116 of 2021 from DLHT for Mara. That application was for bill of cost which is, as submitted by Mr. Mahemba, governed by under Order 7 rule 1 of the Advocates Remuneration Order, GN. No. 264 of 2015. The order reads; 7.-(lj 4/7/ party aggrieved by a decision of the Taxing officer, may file reference to a judge of the High Court. The applicant herein has filed revision instead of reference. Under the order

cited, this court has no mandate to entertain revision on decision of the taxing master and therefore has no jurisdiction. The position with respect to jurisdiction in this country is firmly settled. It is to the effect that courts must understand the scope of their powers and Page 6 of 8 that discharge of their judicial functions must be within the confines of such powers. Ascertainment of the court's powers must be done before commencement of the proceedings over which they preside. In Fanuel Mantiri Ng'unda vs Herman M. Ng'unda, Civil Appeal No. 8 of 1995 (unreported), in which the following guidance was laid out: "The jurisdiction of any court is basic, it goes to the very root of the authority of the Court to adjudicate upon cases of different nature ... the question ofjurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. It is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case." [Emphasis supplied] The clear message extracted from the foregoing excerpt is that, powers to handle proceedings by courts must be real, apparent and not assumed or conferred on the parties' consensual basis. It must be a creation of a statute that establishes the judicial organ or body or those that

creates rights or offences. This position was underscored by the Court, in Shyam Thanki and Others vs New Palace Hotel [1972] HCD No. 97, this Court warned against possible 'conspiracy' by the parties to consent to give jurisdiction to a body that has none. Page 7 of 8 In the instant application, applicant filed revision while praying for calling of records of taxing Officer and analyze and quash it. It is in the statute that decision of the taxing master is challenged by way of reference and not revision as applicant did. That is provision of law and I find nothing to add as doing so will create wicked precedent contrary to what was intended by legislature and to the entire legal system. Generally, I find the PO has merit and is hereby sustained. As a consequence, the matter is struck out with costs. K M. L. KOMBA Judge 12th December, 2024 Page 8 of 8