murtaza alihussein dewji vs eugenia rutatora and others 2020 tzhclandd 84 6 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 839 OF 2016 (Original Land Case No. 141 of 2014) MURTAZA ALIHUSSEIN DEWJI (as a duly constituted attorney of ALIRAZA KASAMALI RAJANI............... .......... APPLICANT VERSUS EUGENIA RUTATORA.............................................. 1st RESPONDENT WILSON MUJWAHUZI RUTATORA............................ 2nd RESPONDENT THE MUNICIPAL DIRECTOR, KINONDONI MUNICIPAL COUNCIL.......................................... 3rd RESPONDENT RAVJI CONSTRUCTION LIMITED........................... 4th RESPONDENT SAMSON J. MWAIPAJA......................................... 5th RESPONDENT RHINO AUCTION MART AND COURT BROKER......... 6th RESPONDENT RULING: I. MAIGE, J This is an application, under section 14 of the Law of Limitation Act, Cap. 89, R.E., 2019, for extension time to apply for review against the decision of this Case in Land Case No. 141 of 2012. i In paragraph 5 of the affidavit in support of the application, the applicant claims that the property, the subject of the execution proceeding of the decree in question, belongs to his principal one Aliraza Kasamali Rajani. In his written submissions in reply, Mr. Mutakyamirwa, learned advocate for the first and second respondents contends that, since under the circumstance of this case, the issues demonstrated in the affidavit cannot be dealt by way of review, this application is irrelevant and should be dismissed. He assigned two reasons to support his view. The first reason being that an application for review cannot be preferred by a person who was not a party to the decision, the subject of review. The second reason being that, this Court cannot sit as the appellate or revisional court to nullify and quash the decree in Land Case No. 141 of 2012 for the demonstrated illegalities. By way of rejoinder submissions, Miss Mary Lamwai, learned advocate for the applicant, contents, that by its express provision, Order XLII of the CPC much as it makes reference of "any person considering himself aggrieved" does not restrict a third party affected by a decision to apply for review. It is further her submissions in the alternative that, this being an application for extension of time to apply for review, whether or not a none party can apply for review is premature. It can only be raised when the application for review is filed. I have duly considered the counsel's submissions on these preliminary issues and it is desirable that I consider the same. I propose to start with the issue of whether a third party can apply for review. To appreciate the counsel's debate on the issue, I will as hereunder do, reproduce the provision of Order XLII of the CPC which gives the details on how and when can the review jurisdiction be invoked, thus: 1-(1) Any person considering himselfaggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, and who, from discovery o f new and important matter or evidence which, after the exrcise o f due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account o f some mistake or error apparent on the face o f the record, or for any other sufficient reason, desire to obtain a review o f a decree passed or order made against him, may apply for a review o f a judgment to the court which passed the decree or made the order. (2) A party who is not appealing from the decree or order may apply for a review o fjudgment notwithstanding the pendency o f an appealby some otherparty except where the ground o fsuch appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for review. My understanding of the above provision is that, for a person to be entitled to make an application for review, he must be a party to the decision sought to be reviewed. The clause "desire to obtain a review o f a decree passed or order made against him" in Order XLII rule 1-(1) (b) of the CPC in my view, connotes that, for a person to apply for review, a decree or order sought to be reviewed must have been passed against him. Since a decree or order can only be passed against a person who is a party to the proceeding, a non party, is by necessary implication, not a person envisaged in the respective provision. Therefore, Kvela Valievs Foods Ltd vs. The Registrar of Titles and Others, Miscellaneous Civil Appeal No. 4 of 2003 (High Court of Tanzania, Dar Es Salaam, Registry- Unreported), His Lordship Mwarija (as he then was), considering a similar issue made the following remarks which I fully subscribe to Although the expression used, both under s. 78 and O. X III r. (1) o f the CPC is "any person considering himself aggrieved" when the provisions are read together with r.l(2) o f the same. Order, in my considered view, the words "a party who is not appealing from a decree or order may apply for review o fjudgment", shows dearly that a review can only be sought by a person who was a party to the proceedings. For the foregoing reasons therefore, I agree with Mr. Mutakyamirwa for the first and second respondents that, the applicant lacks necessary locus standi to pursue this application. I cannot agree with Miss Mary Lamwai for the applicant that, the issue can only be entertained upon institution of the intended review proceeding. For, it is an elementary position of law that for a person to be competent to apply for extension of time to pursue an action, he must in the same way be competent to pursue the intended action. It is on that account that I will sustain the first limb of preliminary objection and hold the application to be incompetently before the Court. 4 Assuming, without deciding, that I was wrong, I would yet hold the application incompetent on account that this Court is not the proper forum to entertain the intended application for review. While Hr. Mtakyamirwa submits that this court does not have jurisdiction to entertain the intended application for review, Miss Mary Lamwai submits otherwise. I have taken time to consider the rival submissions. For a different reason, I will agree with Mr. Mtakyamirwa. It is a fact that before filing the instant application, the applicant filed objectional proceedings vide Miscellaneous Land Application No. 833 of 2016. He was objecting against the attachment of the suit property in execution of the decree under discussion on account that, he was not joined in the proceeding as a party despite having ownership interest on this suit property. The objection has today been disallowed on account that, the applicant did not adduce sufficient evidence to satisfy the Court that the property adjudicated upon in the said decree and that he was claiming were the same. With the determination of the objectional proceedings, I do not think that this Court may, by way of review, consider if the applicant has any interest on the suit property. In the same token, it cannot make any comment on whether the property, the subject of the execution proceeding and that which the applicant claims ownership in are the same property. The reason being that, the order disallowing the applicant's claim in the objection proceeding is conclusive and binding to the objector subject only to the result 5 of any suit that he may prefer. That is in terms of the express provision of order XXI rule 62 of the CPC which provides as follows:- 62. Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he c/aims to the property in dispute, but, subject the result of such suit, if any, the order shall be conclusive. Therefore, for the reason of the intended application being constructively res judicata to the ruling in Miscellaneous Land Application No. 833 of 2016, the application cannot stand. In the final result and for the foregoing reasons therefore, the application is hereby struck out with costs for being incompetent. It is so ordered. JUDGE 06/04/2020 6 Date: 06/04/2020 Coram: Hon. D.P. Ngunyale - DR For the Applicant: Dorine Mugasha for the applicant For the 1st Respondent ~ Elipili Tarimo hold brief for Adv. Rutakyamirwa For the 2nd Respondent] For the 3rd Respondent: Julius Jofu for 3rd respondent For the 4th Respondent: Absent For the 5th Respondent: Absent For the 6th Respondent: Present RMA: Bukuku COURT: Ruling delivered this 06th April, 2020 in chamber. DEPUTY REGISTRAR 06/04/2020