nelson mayombo another vs halima yasini masanja 2022 tzhc 15854 12 december 2022

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY)

AT MOROGORO MISC. LAND APPLICATION NO.03 OF 2021 (Originating from Misc. Land Application No. 189 of2019 at the District Land and Housing Tribunal for Morogoro, at Morogoro.). NELSON MAYOMBO 1®^ APPLICANT JENIFA MAYOMBO 2"° APPLICANT

VERSUS

HALIMA YASINI MASANJA RESPONDENT

RULING 12'^ Dec, 2022 CHABA,3. Before the District Land and Housing Tribunal for Morogoro, at Morogoro (the trial tribunal) the applicants herein were unsuccessfully sued by the respondent in Land Application No. 183 of 2015 over the sale of the suit premise. Thereafter, both parties filed an application to execute the decision of the trial tribunal on the afore-mentioned application whereas 1 1 1^ a g c V the applicants filed Misc. Application No. 161 of 2017 and the respondent filed Misc. Application No. 24 of 2018, both applications were allowed and the respondent was given a right to redeem the suit premise by compensating the purchasers (applicants) to the tune of Tanzanian Shillings Thirty-Six Million only (TZS. 36,000,000/=) within thirty (30) days. Applicants were dissatisfied with the procedure adopted by the trial tribunal during the hearing of Misc. Application No. 24 of 2018 so they filed Misc. Application No. 189 of 2019 praying the trial tribunal to review and reverse its decision on Misc. Application No. 24 of 2018, however the same ended in vain after the trial tribunal rejected the reliefs sought by the applicants. Discontented with such decision, the applicants have filed Chamber Summons made under Section 41 (1) and 43 (1) of the Land Disputes Courts Act [Cap. 216 R. E, 2019] (the Land Disputes Courts Act) seeking for the following orders: - 1. That, this

Honorable Court be pleased to revise the decision in Misc. Land Application No. 189 of 2019 at the District Land and Housing Tribunal for Morogoro delivered on day of September, 2021 Before Hon. E. Mogasa, Chairman. 2 I I' 3 g e 2. That, this Honorable Court be pleased to call for and examine the records proceedings, and decision in Misc. Land Application No. 189 of 2019 at the District Land and Housing Tribunal for Morogoro delivered on 0^^ day ofSeptember, 2021 before Hon. Mogasa, Chairman.

3. That, upon examining and revising the records proceedings and decision in Misc. Land Application No. 189/2019 at the District Land and Housing Tribunal for Morogoro delivered on Od'^ day of September,2021 before Hon. Mogasa Chairman order that execution be made by evicting the respondent because her application was dismissed and applicants are the first persons to apply for execution by mode of eviction for vacancy possession.

4. Any other order(s) or/and reHef(s) as this Honorable Court deem fit to grant. The Chamber Summons is supported by an affidavit sworn by Mr. Kasaizi Andrew Kasaizi, learned counsel for the applicants. On the other hand, the respondent objected the application by filing a counter affidavit sworn by Ezekiel Joel Ngwatu, learned advocate. At the hearing of this application for revision, by consensus, parties agreed that the matter be disposed of by way of written submissions, and 3I Page both parties adhered to the Court's scheduling orders. The applicants were represented by Mr. Kasaizi Andrew Kasaizi, learned advocate while the respondent enjoyed the services of Mr. Ezekiel Joel Ngwatu, also learned advocate. In his written submission in chief, Mr. Kasaizi commenced by praying this Court to adopt the affidavit deposed by him in support of this application for revision so as to form part and parcel of his submission. The learned counsel also adopted three grounds upon which this Court is invited to revise the proceedings of the trial tribunal. Mr. Kasaizi argued the grounds for the application for revision generally. Basically, he founded his arguments on two points. He firstly pressed that, the honorable chairperson erred in law and materially by failing to note the presence of new material things through which the trial tribunal could have reviewed its decision. He added

that, the valuation report was prepared by one side hence prejudiced the other party and if the trial tribunal had discovered it before, it could have not accepted the said valuation report to be used as a tool of execution, hence reaching at different decision. He continued that, the applicants discovered 4 I Page new important matter and evidence which was not within their knowledge and could not been discovered at the time of passing the order. Secondly, he pointed out that there was an error of irregularities apparent on the face of record due to the fact that the applicants also applied for execution by mode of eviction by vacancy possession and the applicants were the first persons to apply for execution in mode of eviction by vacancy possession as revealed In the Application for Execution No. 161 of 2018. He argued further that, the honorable chairperson failed to note that there was an error of illegality apparent on the face of record that the trial tribunal suo moto raised the issue of redeeming the disputed land while the respondents via Land Application No. 183 of 2015 in the District Land and Housing Tribunal for Morogoro which was delivered on 05/07/2015 before Hon. P. J. MAKWANDI was already been dismissed. He added that, what the trial chairperson could have done was to dismiss the respondent's Application for Execution No. 24 of 2018 and order vacancy

possession by evicting the respondent from the disputed land. He continued to narrate that, if the trial tribunal could have discovered this apparent error on the face of record and proceedings it could have not reached on the decision of 5I Fage granting thirty (30) days to the respondent to redeem the disputed land while there was an order of dismissing the application. He finally prayed this Court to revise the said illegal and fraudulently obtained decision so that the applicants could not continue to be deprived of their suit premise. To strengthen and support his arguments, the counsel for the applicants referred this Court to various cases concerning the issues of illegality, as a ground for extension of time aspiring this Court to apply in the instant application for revision. In reply, the counsel for the respondent, Mr. Ezekiel Joel Ngwatu, submitted that the decision in Misc. Land Application No. 189 of 2019 was fair and proper decision, because the trial chairperson having considered the principle and elements governing review, he found that the applicants herein failed to tell the trial tribunal as to why they were moving the trial tribunal to review its decision instead of exhausting the right to appeal against the impugned decision. He went on asserting that, the said decision was one of the best decisions, having all requirements of a good judgment, as it is

well reasoned, having considered the principles governing the issues of review and ail arguments from both parties were considered. k\ > 6I PaRc Mr. Ezekiel contended further that, the law is very clear when a person wants to move the Court to review its decision. He pointed out that, the governing law is Order XLII, Rule 1 of Civil Procedure Code, [Cap 33, R. E, 2019], and the same was clearly referred by the chairperson at pages 5 and 6 of the same decision. The counsel referred this Court to the case cited by the Hon. Chairperson namely, James Kabalo Mapalala V. British Broadcasting Corporation [2004] TLR 143, where Hon. Chairperson interpreted the decision of the Court and said, "Katika kusikiliza maombi ya mapitio (review), Mahakama haiwezi kukaa kama inasikiliza rufaa...". He cemented that, the applicants failed to adhere to the laws and principles governing the review, and therefore cannot benefit from their own wrong by applying before this Court an application for revision to clear what they were ought to do, by way of revision. He added that, the foundation of their case was totally distracted, hence there is no way this Court can exercise its discretionary powers vested under the law. Mr. Ezekiel accentuated further that, the law governing the Application for Revision Is Section 79 (1) of the Civil Procedure Code, [Cap. 33, R. E, 2019], which provides that: - 7 I 1^

a g e "The High Court may call for the records of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, and if such subordinate court appears: (a) to have exercised jurisdiction not vested in it by law; (b) to have failed to exercise Jurisdiction so vested;(c) to have acted in the exercise of its Jurisdiction illegally or with material irregularity." He contended that, having read the entire submission advanced by the applicants, he has failed to find the stipulated criteria being adhered to. To the contrary, he noted that the applicants' submission Is full of contradiction and confusing one, and the application and submission put forward by the counsel for the applicants are quite different. He submitted further that, the applicants' submission is contradictory to the extent that, the counsel for the applicants was not familiar with the principles governing revision, hence he ended up citing irrelevant and unfound authorities which cannot help him at all. He said, most of his cases referred thereto concerns with the issues of extension of time, and the first case that is Kumbwandumi Ndemfoo Ndossi V. Mtei Bus Service Ltd, Civil Application No. 27/02 of 2016 is all about rights to be heard. He stressed that, cases referred under page 3, 4 and 5 of^the 8 1 1^ n g e applicants' submission are good for nothing to the application at

hand, and the proper remedy available is for this Court to ignore and expunge them from the Court record for obvious reason that, some of them apart from being irrelevant, they are unreported ones and not attached to the filed chamber summons / application. In view of the above, Mr. Ezekiel highlighted that this Court should not exercise its discretionary power simply because the applicants have failed to tell the Court as to why the present application for revision should be considered, and instead the Court to dismiss the application for lacking merits. To emphasize his submission, the counsel referred this Court to the legal maxim; De non apparentibus et non existentibus eadem est ratio" tO mean that, ''which does not appear will not be presumed to exist". For clarity, it means that, ''the applicants reasoning is identical as regards what does not appear and what does not exist". He further Cited the case of Blass Michael V. Said Selemani[2000]TLR 260, where it was held that: - "flj - The provision of Section 79(1) of the Civil Procedure Code can be invoked only where the issue is one ofjurisdiction, that is, the irregular or non-exercise ofjurisdiction, or the Illegal assumption of it the Provision have nothing to do with conclusion oflaw or fact, (ii) - In this case there & 9I Pa pe ' was nothing to suggest that there was an irregular exercise or non- exercised of

jurisdiction or the illegal assumption of it The District Magistrate was properly vested with the necessaryJurisdiction..." He stated that, the above principle is applicable in the circumstance of this case. He further urged this Court to apply the principles expounded in the case of Shiraz Moh'd Sharif V. Mkurugenzi wa Mashtaka (DPP) (Number 1), Criminal Appeal No. 19 of 2004 (2005) to fault the applicants' act of mixing the relevant principles for the benefit of respondent. He also referred section 110 of the Law of Evidence Act (Cap. 6 R. E, 2022) to insist that, the principle which articulates that, he who alleges must prove, and stressed that the applicants were supposed to come up with well-reasoned arguments as to why he opted for revision in alternative to appeal. In his view, the applicants have failed totally to meet their target. He added that, the Court should note that the decision of the trial tribunal was proper and it was correct that the applicant was supposed to appeal and not filing an application for review. He said, this position stands to date. Mr. Ezekiel was of the view that, there is no basis upon which this court can be moved to invoke its revisional jurisdiction and cited the case 10 1 ' -' f i?A\ of SGS Societe Generale De Surveillance S.A V. VIP Engineering & Marketing Ltd (Civil Application 84 of 2000)[2003] TZCA 31 (30 October 2003); to fortify

his submission. By way of rejoinder, the counsel for the applicants echoed what he submitted in-chief and underlined that, the applicants have given sufficient reasons for revision and all the authorities cited are relevant and attached to his submission. He said, all cases are reported in tanzlii. He averred that, the respondent and her counsel are both wondering why the applicants preferred this application for revision instead of appealing to the higher Court. He said, it appears that both are not aware of the law barring appeal against the decision of review rejecting the prayer from review that it is not appealable per dictates of the provision of Order XLII, Rule 7(1) of the CPC. He stated that, the remaining remedy available is to lodge an application for revision due to the fact that rule 9 of the same order, also bars to file an application for review to review an application for review. To him, in the circumstance it was proper for the applicants to lodge this application for revision. He stressed that, this Court and the Apex Court have in a number of cases decided that, the only remedy available for a ruling rejecting an application for review is revision and not otherwise. He 11 IP a g c added that, the trial tribunal ought to review the Impugned decision and the applicants have demonstrated sufficient reasons for this Court to revise the Illegal obtained

decision. He insisted that, the authorities cited by the respondent are irrelevant to the present application, citing the case Shiraz Moh'd Sharif (supra) as an example and stating that the same talks about exhibits while in the present application there is no any issues of exhibits. He ended by echoing his prayers and urged the Court to examine and revise the records, proceedings and decision In Misc. Land Application No. 189 of 2019 issued by the DLHT for Morogoro delivered on 09 of day of September, 2021, Before Hon. E. MOGASA, Chairperson and order that execution be made by evicting the respondent because her application was dismissed and the applicants were the first persons to apply for execution by mode of evicting the respondent and vacancy possession with costs. Having summarized the rival submissions made by the learned counsel for both parties and carefully scanned the pleadings and court records as well, it is now my turn to deal with the matter at hand. 12 I P a e To beginning with, I have examined the relevant provision under which this application has been taken by the applicants, to wit, the provisions of Section 43 (1) of the Land Dispute Courts Act, [Cap. 216 R. E, 2019]. This provision read: - "(1) - In addition to any other powers in that behalf conferred upon the High Court, the High: - (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 interests ofjustice, and all such tribunals shall comply with such direction 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 ofits own motion, ifit appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit". On the basis of the above provisions of the law, this Court has been moved by the applicants to examine and revise the decision in Misc. Land Application No. 189 of 2019 issued by the DLHT for Morogoro delivered on 9^^ day of September, 2021. This Misc. Land Application No. 189 of 2019 13 I i' i f ^ was based on what the applicants stated to be discovery of an apparent error on the face of the record. However, the respondent contended that the alleged error has not occasioned any injustice and therefore, the trial tribunal correctly denied the impugned application. In the circumstance, this Court is therefore, bound to find out and explore as to whether there were sufficient grounds established to warrant review by the trial tribunal.

Specifically, the issues are: - (1) Whether there was an apparent error on the face of the record which could not be discovered when the matter was being heard. (2) If there was such error on the face of record, whether there was a proof that such an error occasioned injustice. As to the first issue, in the case of Chandrakant Joshubhai Patel V. Republic [2004] TLR 218, adopting a reasoning in MULLA, 14^^ Edn, pages 2335 - 2336 the Court of Appeal of Tanzania desired to adopt the following words while dealing with matter before it: - ''An error apparent on the face ofthe record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and 14 I P □ g e not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions - State of Gujarat v. Consumer Education and Research Centre (1981) AIR GuJ 223. Where the judgment did not effectively deal with or determine an important issue in the case, it can be reviewed on the ground of error apparent on the face of the record [Bassellos v. Athanasius(1955) 1 SCR 520]... But it is no ground for review that the judgment proceeds on an incorrect exposition of the law[Chhajju Ram v. Nekl(1922)3 Lah. 127]....A mere error of iaw is not a ground for review under this ruie. That a decision is erroneous in law Is no ground for ordering review: Utsaba v. Kandhuni (1973) AIR Ori.

94. It must further be an error apparent on the face of the record. The line of demarcation between an error simpHciter, and an error on the face ofthe record may sometimes be thin. It can be said of an error that it is apparent on the face of the record when it is obvious and self- evident and does not require an elaborate argument to be established [Thungabhadra Industries Ltd k State of Andhra Pradesh (1964)SC1372].''[Emphasis edded] Applying the above principle, I was obliged to revisit the trial tribunal's records and I had ample time to read it. In the course, I have seen the 15 I P a e memorandum of review and the written submissions filed by the applicants. In their memorandum of review and submissions, the applicants pointed out the purported manifested error on the face of the record to include failure to appoint a court broker, failure to indicate the mode on how TZS. 36,000,000/= could be paid, and further that they were not involved in the process of making valuation (valuation process) as the said valuation report was prepared and made under the instruction of respondent herein. The pinpointed errors alleged to be against the law as submitted by the counsel for the applicants. In view of the above explanations and upon applying the guiding principle in line with the pinpointed errors, what I have gathered from the applicant's submission is that, the same are

misconceived submissions. After perusing the records, it is my considered opinion that, the errors noted by the counsel for the applicants are not apparent on the face of the records because in my observation involves matters of laws and requires an elaborative argument to be established. As said, purported errors are not apparent errors on the face of the record which could not be discovered when the matter proceeded for hearing. Thus, the first issue is not answered in affirmative. 16 I P a R c Consequently, I have failed to see any error material which was committed by the trial tribunal to warrant this Court exercise its powers as provided by the law under sections 41 (1) and 43 (1) of the Land Disputes Court Act (supra). That being said, it shall be an academic exercise to proceed to consider the remaining issues while the first issue suffices to dispose of the entire application. For the above reasons, I find this application to have no merit, and I hereby dismiss it with costs. Order Accordingly. DATED at MOROGORO this 12^*" day of December, 2022. <o o -A y Hi Nj M. J. CHABA

JUDGE 12/12/2022 17 1 P a g e