nicodemu damiani vs nyantare village government 2021 tzhc 7594 10 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA (APPELLATE JURISDICTION) CIVIL REVISION NO. 02 OF 2021 (Arising from the Land Application No. 68 of 2020 before M. Mwinyi - Chairman, Originating from the Land Application No. 40 of 2011 before Vincent A.L.- Chairman from the District Land and Housing Tribunal for Kigoma) NICODEMU DAMIANI..... ...................... APPLICANT VERSUS THE NYANTARE VILLAGE GOVERNMENT......................... RESPONDENT RULING 2/12/2021 & 10/12/2021 LM, MLACHA, J, The applicant, Nicodemu Domian filled an application against the respondent, The Nyantare Village Government seeking for orders to call the records of Land Application No. 68/2020 of the District Land and Housing Tribunal for Kigoma (the DLHT) to satisfy itself of the correctives and legality of orders therein. This is an application for execution which originates from Land Application No. 40/2011 which has a decree against the applicant. He prayed for orders to revise the execution orders. The application is made under section 43 (1) (a) and (b) of the Land Disputes Courts Act, Cap 216 R.E. 2019 and is supported by the affidavit of the applicant. Service was dully served to the respondent who filed a counter affidavit sworn by Dollar Rajabu Kusenge. Since then, the respondent did not make any appearance. On the request of the applicant, hearing was done ex-parte. Submitting before the court, the applicant said that he is not happy with Miscellaneous Application No. 68/2020 because it is filed in the name of Michael Yango instead of the Village Government. He added that the Attorney General and District Council were also supposed to be parties. He added that, the case was also supposed to start in the High Court it being a government case. He proceeded to say that the application for execution did not specify the size of the land. It can take land beyond disputed land, he said. He stresses that his land will be taken if execution is left to proceed because they have an evil mind. I had time to peruse the records. The DLHT was hearing an application for execution of the decree of Application No. 40/2011. Both parties appeared and presented their respective cases. The applicant was present and he was fully heard. The DLHT having heard the parties fully, could not see reasons as to why execution could not proceed. It made an order on 10/8/2021 directing execution to proceed. The applicant was ordered to vacate from the suit land which was described as "eneo la shule ya 2 Msingi ya Nyantare iliyopo Kata ya Nyansha, Wilaya ya Kasulu". He could lodge any appeal to oppose the decision. He instead came by way of revision. I think he missed the point because the order of the DLHT put the matter to finality and was thus appealable. The rule is where there is a right of appeal, a revision cannot be opened (see Hamad Mohamed Sumry v Musa Shaibu Msangi and 2 others, CAT Civil Application No. 255 of 2015, Hassan Ng'anzi Khalfani v. Njama Juma Mbeya (Legal Representative of late Mwanahamisi Njama) and another, CAT Civil Application No. 218/12 of 2018 and Dismas Chekemba v. Issa Tanditse, CAT Civil Application No. 2/2010). The application is therefore improperly before the court. But further to that, on my close look of the record, I could not see any error material to the merits of the case involving injustice calling for revision as required by section 43 (1) (b) of the Act. For a revision to take place, the court must see an error, material to the case, causing an injustice to one of the parties or both. If that is observed, the court can revise and vacate the proceedings and decision of the DLHT and give directions on what should be done. That was not the case here because the applicant was served with the application for execution, entered an appearance and was fully heard. The complaint that the execution could take more land than what was decreed is baseless because it could be a ground of appeal and there is no appeal before me. The issue of wroro parties is also baseless because the name of the respondent to this application reflect that was recorded in the lower court. The Attorney General and the District Council cannot come in as submitted by the applicant because the case, Application No. 40/2011, was lodged before changes of the Law. That said, the application is dismissed with costs. JUDGE 10/12/2021 Court: Ruling delivered in the presence of the applicant and Mr. Edwin Rwekaza for the respondent. Rightof Appeal Explained. . J JUDGE 10/12/2021 4