primus kiiza vs mariam msengi 2023 tzca 198 24 april 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CORAM: MWARIJA. 3.A.. KWARIKO, 3.A, And KIHWELO, 3.A.) CIVIL APPLICATION NO. 157/17 OF 2017 PRIMUS KIIZA (Legal representative of the late Asha Mohamed).................................. .......... .......... .............. APPLICANT VERSUS MARIAM M SENGI........ ...... .............................................RESPONDENT (Application from the decision of the High Court of Tanzania, Land Division at Dar es Salaam) f Ndika. 3.) dated the 5th day of December, 2014 in Miscellaneous Land Appeal No. 73 of 2013 RULING OF THE COURT 20th March & 24th April, 2023 MWARIJA. J.A.: This application for revision was filed by Salum Issa Sobo (now deceased) in his capacity as the legal representative of the late Asha Mohamed. It originates from the decision of the High Court of Tanzania, Land Division (Ndika, J., as he then was) dated 5/12/2014 in which, that court refused to grant the application for review of the judgment passed in Land Appeal Cases No. 73 and 79 of 2013. The judgment which was sought to be reviewed arose from the decision of the Temeke District i Land and Housing Tribunal (the Tribunal) in Land Application No. 77 of 2013. In that case, Salum Issa Sobo (suing as a legal representative of Asha Mohamed) was the applicant while the present respondent, Mariam Msangi was the respondent. The applicant's claim was for recovery of possession of a house allegedly occupied by the respondent without having a right over it but being in its occupation as a trespasser. The respondent raised a preliminary objection before the Tribunal to the effect that, the application was time barred. Having heard the objection, the Tribunal was satisfied that the application was filed out of time. Having so found, it proceeded to strike it out. Aggrieved by the decision of the Tribunal, the applicant appealed to the High Court. On her part, the respondent was also aggrieved and thus filed a cross appeal. The appeal and the cross appeal were registered as separate Land Appeals No. 73 and 79 of 2013 respectively but both of them were heard together. Having heard the appeal and the cross appeal, the High Court (Songoro, J) found that they lacked merit and thus dismissed them. The applicant was further aggrieved by the decision of the High Court which upheld the finding of the Tribunal. He decided to take the route of filing an application for review before the same court. In his application, he moved the court under s.51 (1) (a) of the Land Disputes Courts Act and Order XLII rule 1 (a) and (b) of the Civil Procedure Code, Chapters 216 and 33 of the Revised Laws respectively. The grounds upon which the review was sought are: "1. That the Honourable Court forgot to compute the period o f lim itation prescribed for the su it fo r recovery o f the dispute land when the facts that the disputed land was the land o f the late Asha Mohamed; that the late Asha Mohamed would, if she was living, have a right o f action in respect o f the suit; that the late Asha Mohamed died before the right o f action accrued and that the date when the right to sue accrued to the estate o f the late Asha Mohamed exists are facts in evidence. 2. That the su it instituted before the tria l on 17/4/2013 is not time barred when the Honourable Court computes the period o f lim itation prescribed for the su it based on the above m entioned facts under section 24 (1) o f the Law o f Lim itation A ct (Cap. 89 o f2002)." The applicant's main argument was that, since Asha Mohamed died on 5/7/1997 and the suit was filed in 2013, had the learned appellate Judge invoked the provisions of s.24 (1) instead of ss.9 (1) and 35 of Cap. 89, he would not have upheld the finding of the Tribunal that the action was filed out of time. That section provides as follows: "24-(l) Where a person who would, if he were liv in g h a v e a right o f action in respect o f any proceeding, dies before the right o f action accrues, the period o f lim itation sh all be com puted from the first anniversary o f the date o f the death o f the deceased or from the date when the right to sue accrues to the estate o f the deceased, whichever is the later date ." Having considered the submissions made for and against the application for review, the High Court found that the errors complained of by the applicant did not fit within the purview of 0. XLII r. 1 of Cap. 33 which states that: "1 , -(1) A ny person considering him self aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who, from the discovery o f new and im portant m atter or evidence which, after the exercise o f due diligence, was not within his knowledge o r could not be produced by him at the tim e when the decree was passed or order made, o r on account o f some m istake or error apparent on the face o f the record, or fo r any other sufficient rea so n d esires to obtain a review o f the decree passed or order made against him ; m ay appiy fo r a review o f judgm ent to the court which passed the decree or made the order." The learned Judge was of the view that, if errors complained of were to be decided, the decision would have the effect of exercise by the court, of the powers of appeal which it did not have. He observed as follows: "In m y view, if at a ii the court's invocation o f sections 9 (1) and 35 o f Cap. 89 (supra) to determ ined the appeal instead o f s. 24 (1) o f Cap. 89 (supra) was an error, that would am ount to a decisional error, arising from the court's appreciation o f the facts o f the case as well as its reasoning and application o f law to the facts. Such an error would make the entire decision erroneous, which could then only be corrected by way o f an appeal, not review. It should be noted that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected." 5 The applicant was further dissatisfied with the ruling in review hence this application for revision brought under s.4 (3) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Laws. The application is supported by the affidavit of Salum Issa Sobo. The applicant contends that the High Court ""acted in the exercise o f its jurisdiction illegally or with m aterial irregularity" At the hearing of the application, Primus Kiiza, who was appointed as the legal representative of the deceased Asha Mohamed and substituted as the applicant in this application vide Civil Application No. 3/01 of 2022 following the death of the previous administrator, Salum Issa Sobo, appeared in person, unrepresented. On her part, the respondent had the services of Mr. Melchizedeck Joachim, learned counsel. The applicant adopted the written submissions filed on 17/5/2017 by the previous legal representative of the deceased under the provisions of Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 and urged the Court to consider them and grant the application thereby reversing the impugned decision of the High Court. He prayed further that, the decision of the High Court in Land Appeals No. 73 and 79 of 2013 be reversed with a consequent order that the application which was found by the learned Judge to be untenable because the nature of the errors complained of go to the merits of the decision, was properly filed in the High Court for determination of the grounds raised by the applicant. He stressed that the High Court erred in holding that, the avenue which the applicant would have taken was to appeal to this Court, On his part, Mr. Joachim also adopted the written reply submissions filed gratis by the then respondent's counsel, Fulgence Massawe, learned counsel through the Legal and Human Rights Centre. Mr. Joachim argued that, this application for revision is not tenable because the applicant had the right of preferring an appeal to this Court against the decision of the High Court in Land Appeals No. 73 and 79 of 2013 whereupon, a decision would be made on the complaint that the judgment is tainted with errors and/or illegalities. Having considered the submissions made for and against the application, we hasten to state that, this application is devoid of merit. The applicant had the right to appeal in terms of s.5 (1) (c) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Laws. He should have exercised that right instead of applying for review which, under 0. XLII r.l of the Cap. 33, has a narrow scope, not extending to challenging any decision of the High Court on merit but mostly, to errors which are apparent on the face of the record. This is clear from the provisions of 0. XLII r. 1 of Cap. 33 reproduced above. On the basis of the foregoing reasons, the application is dismissed for want of merit. Given the particular circumstances of the case, we make no order as to costs. DATED at DAR ES SALAAM this 20th day of April, 2023. A. G. MWARIJA JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL The Ruling delivered this 24th day of April, 2023 in the presence of the applicant in person and Mr. Melchizedeck Joachim, learned counsel for the respondent, is hereby certified as a true copy of the original.