omari njoku vs zakia malingumu 2022 tzhclandd 66 31 january 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND REVISION No. 42 OF 2020 (Arising from the Order of Temeke District Land and Housing Tribunal in Misc. Land Application No. 33 of 2020) OMARI NJOKU ...APPLICANT VERSUS ZAKIA MALINGUMU.. ..RESPONDENT Date of last Order: 21.12.2021 Date of Ruling: 31.01.2022 RULING V.LMAKANL J: The applicant OMARI NJOKU has filed this application for revision seeking for the following orders: 1. That this honorable court be pleased to Invoke and exercise Its revision jurisdiction to call for examine and revise the proceedings and decision of Temeke District Land and Housing TribunalIn respectofMisc. Application No. 33 of2020 dated September, 2020 with the view of satisfying Itself as to the correctness legality and propriety ofthe said decision. 2. Costs ofthis application to follow the event. 3. Any other further relief(s) that this honourable court may deem fit, just and equitable to grant The application is made under section 43(l)(a) and (b) of the Land Disputes Courts Act CAP 216 RE 2019 and section 95 of the Civil Procedure Code CAP 33 RE 2019 (the CPC). The affidavit of the appiicant is in support of the said application. The respondent fiied her counter-affidavit opposing the appiication. With leave of the court the application was argued by way of written submissions. The submissions by the appiicant were drawn gratis by The Legai Assistance and Social Welfare Organization of Tanzania (LASWOT) and the respondent personaiiy drew and filed her submissions. In his submissions in support of the application the applicant repeated the contents of his affidavit. He said there was a decision by the Temeke Ward Tribunai (the Ward Tribunal) against the appiicant. The appiicant requested for copy of the judgment but while he was waiting for the same,the respondent filed an application for execution at the Temeke District Land and Housing Tribunal (the District Tribunal) against Omari Njovu. He raised a preiiminary objection that the respondent was seeking to execute against a person known as Omari Njovu which was not his name. The objection was « 5 dismissed and apparently the application for execution was to proceed. He further said the ruling of the District Tribunal asserted that there was an error in the name of the applicant, but he said it was not legally correct for the Chairman to continue determining and delivering ruling whiie he had discovered an error in respect of the names of the applicant as appearing in the record of the Ward Tribunal vis a vis the name appearing in the application for Execution No. 33 of 2020. He thus said for this court to revise the ruling proceedings and quash and set aside the ruling of the Honourable Court as the applicant was not part of Land Case No. 3 of 2019 of the Ward Tribunal. He also prayed for costs. In her reply the respondent did not dispute that there was an error in the speliing of the name of the applicant in the execution proceedings at the District Tribunal. But her argument is that the error of spelling Omari NJOVU instead of Omari NJOKI was a mere slip of the pen which does not prejudice applicant or cause miscarriage of justice. She said the error is not an irregularity which goes to the root of the » j case therefore this application has no merit and ought to be dismissed with costs. In rejoinder the applicant reiterated his main submissions and prayers and further insisted that the assertion that there was a slip of pen has no merit at all. I have gone through the application, affidavit, counter-affidavit, and the records from the Tribunals. I agree with the Chairperson that the issue of the error of the name does not go to the root of the matter and it did not prejudice the applicant in whatever way. As correctly observed by the Chairperson, the applicant raised this issue as a preliminary point of objection, but in his submissions, he did not address the issue, instead he submitted on the substantive application for execution. This in my view, has confirmed that, the applicant was not a stranger or at all because the applicant was well versed with the facts of the matter. This further asserted, as pointed by the respondent that the error did not prejudice the applicant in whatever way. According to section 45 of the Land Disputes Courts Act the courts are required to deal with cases justly, and to have regard to substantive justice. This provision embraces the overriding principle envisaged in section 3A of the CPC (see the case of Yakobo Magoiga Gichere vs. Peninah Yusufu, Civil Appeal No. 55 of 2017(CAT-Mwanza)(unreported). Section 45 provides: "No decision or order ofa Ward Tribunai or District Land and Housing Tribunaishallbe reversed or altered on appeal or revision on account of any error, omission or irregularity in the proceedings before or during the hearing or in such decision or order or on account of the improper admission or rejection of any evidence uniess such error, omission or irreauiaritv or improper admission or rejection of evidence has in fact occasioned a faiiure ofjustice." It is apparent from the above provision that an error, omission or irregularity cannot call for an appeal or revision unless otherwise there is a breach of justice. As said by the Chairman this was a minor error and admittedly could even be attended administratively. Further, the applicant did not by then find it a crucial error as he ignored and did not address it at all. In that regard, the spirit to do away with minor technicalities cannot be attained if this court will agree to inconsequential prayers including that of the applicant that: he was a strangerjust because two ietters ofhis surname were misspeit. This in my view may result to delay justice or unnecessary back log especially when the error was well addressed by the Chairman. In the result, the error in the name of the applicant has not occasioned any failure of justice to the applicant. The application is thus dismissed. Each party to bear own costs. It is so ordered. V.L. ' 31/01/202^^;:^:^ Di: