rejoice ndalima vs the board of trustees of pentecostal holiness mission 2022 tzhclandd 12572 15 november 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO. 39 OF 2022 (Originating from Land Application No. 282 of2022 in the District Land and Housing Tribunal for Kinondoni) REJOICE NDALIMA................................................................... APPLICANT VERSUS THE BOARD OF TRUSTEES OF PENTECOSTAL HOLINESS MISSION..................................... RESPONDENT Date of last order: 21/9/2022 Date of ruling: 15/11/2022 RULING A. MSAFIRI, J. The above named applicant has resorted to the revisional powers of this Court vested to it under Section 43 (1) (b) and (2) of the Land Disputes Courts Act [CAP 216 R.E 2019] (the Act) against the decision of the District Land and Housing Tribunal for Kinondoni (the DLHT) seeking for the following reliefs; a. That this Honourable Court be pleased to call for and inspect the records of the District Land and Housing Tribunal for Kinondoni at Mwananyamaia in Land i Application No. 282 of2022 to satisfying (sic) itselfas to the correctness and propriety of the eviction order issued against the applicant. b. That this Honourable Court be pleased to revise and set aside the eviction order issued against the applicant in Application No. 282 of 2022 by the District Land and Housing Tribunal for Kinondoni at Mwananyamaia. c. Costs be borne by the respondent. d. >1/7/ other order or orders that this Honourable Court may deem just and equitable to grant. The respondent resisted the application by lodging counter affidavit as well as notice of preliminary objection consisting of two grounds to the effect that; i. That the affidavit supporting the application is incurably defective for containing prayers, assumptions, conclusion as we// as p/eading law instead of facts. ii. That the application is incompetent in law as it was wrongly filed contrary to the provision of the law. JU I1 2 This is the ruling on the preliminary objections raised. Messrs George Bega and Robert Oteyo learned advocates represented the applicant and the respondent respectively. I ordered the preliminary objections raised be disposed of by way of written submissions the order which was duly complied with by the parties. In determining the objections raised I propose to determine first the second preliminary objection as it touches the competency of the application before me. Mr. Oteyo contended that the application for revision is incompetent in law as it was wrongly filed contrary to the provisions of the law. Mr. Oteyo submitted that according to Regulation 24 of the Land Disputes Courts (District Land and Housing Tribunal) Regulations, GN 174 of 2003, (hereinafter referred as Regulations), a party aggrieved by the decision of the Tribunal is required to appeal to this Court and not to institute revision. Mr. Oteyo contended further that as the applicant had a right to appeal he could not invoke revisional powers of the Court. To fortify his stance Mr. Oteyo has referred to me the decision of the Court of Appeal in Ramadhan Mikidadi v Tanga Cement Co. Limited Civil Application No. 275/01 of 2019 (unreported). JL f 3 The respondent therefore prayed the application be dismissed with costs. On reply the applicant has submitted that the application for revision is competent before the Court. It was further submitted by the applicant that the present application has been preferred under Section 43(1) (b) of the Act which confers powers of revision to this Court in addition to the appellate powers and therefore right of appeal does not bar the Court from exercising revisional powers. On further submission, the applicant contended that there are several instance in which this Court has entertained an application for revision arising from execution proceedings. Among the said instance is the case of Marwa Munge v John Rhoba Itembe, Land Revision No. 2 of 2021 (unreported), where this Court exercised its powers of the revision although the applicant had a chance to appeal. The applicant therefore prayed the preliminary objection raised be overruled. On rejoinder the respondent contended that as the applicant had a right to appeal he cannot invoke revisional power of the Court, jl Having gone through the parties' submissions rival and in support of the preliminary objection the sole issue for my determination is whether the present application for revision is competent before the Court. It is discerned from the affidavit in supporting the application at hand that the respondent had filed Land Application No. 17 of 2016 before the DLHT over a dispute of land situated at Ubungo Right House Centre. The DLHT decided in favour of the respondent herein. Being aggrieved with the decision of the DLHT, the respondent lodged an appeal to this Court which was registered as Land Appeal No. 187 of 2021 but he was unsuccessful as his appeal was dismissed. After dismissal of the appeal, the respondent filed an application for execution before the DLHT seeking for eviction of the applicant from the land in dispute. The DLHT ordered the eviction of the applicant from the land in dispute. Being aggrieved with the eviction order, the applicant preferred the present application for revision the grounds set forth are that the respondent is non-existing legal person for churches have to sue or be sued through registered trustees and not board of trustees and also the decree does not clearly specify reliefs granted. AflL. 5 The respondent maintained that the application for revision is incompetent before this Court as there was a chance of appealing. Rightly as contended by the respondent, a party aggrieved by the decision of the DLHT arising from execution is required to appeal as clearly provided for under Regulation 24 of the Regulations. The question that I need to resolve here is whether revision can be preferred where there is a right to appeal. As a general rule, revision cannot be resorted to as an alternative to appeal. This position has been underscored in several decisions. See for example, the cases of Moses Mwakibete v. The Editor, Uhuru and 2 Others [1995] TLR 134, Transport Equipment Ltd v. Devram P. Valambhia [1995] TLR 161 and Halais Pro-Chemie v. Wella A.G [1996] TLR 269. In the case of Ms Farhia Abdullah Noor v Advatech Office Supplies Limited & Another, Civil Application No. 261/16/2017 Court of Appeal of Tanzania (unreported) it was held that; "The Court's power of revision may be resorted to only where there is no right of appeal or where such right exists but has been blocked by a judicial process. A party wXX 6 may also invoke the revisional jurisdiction of the Court where, although he has a right of appeal, sufficient reason amounting to exceptional circumstance exists or where a person was not a party to the relevant proceedings:' From the foregoing decision of the Court of Appeal, revisional jurisdiction of the Court may be resorted if any of the following condition exists; i. No right to appeal exists. ii. The right to appeal exists but it has been blocked by judicial process. Hi. He was not a party to the decision sought to be revised. iv. The right to appeal is available but there exists exceptional circumstance for revisional jurisdiction of the Court to be invoked. In the instant application the applicant was a party to the decision he is seeking to challenge through revision. The said decision as I have stated before is appealable in terms of Regulation 24 of the Regulations. But the 7 applicant has not said anything on why he did not exhaust the remedy available for appealing. In the decision of Moses Mwakibete v The Editor, Uhuru and 2 others [supra] it was stated that; "The applicant in this case had a right to appeal and has not given any good and sufficient reasons why he did not appeal; therefore he cannot move the Court ofAppeal to exercise its revisionaljurisdiction." The applicant was required to state in his affidavit as to why he has resorted to revision while there is a remedy available to him of appealing against the impugned decision. I have considered the decision of Marwa Munge v John Rhoba Itembe [supra] cited to me by the applicant, I hesitate to follow that decision because no reason was stated as to why revision was resorted where chance of appealing was available. It is for that reason I proceed to sustain the second ground of preliminary objection raised by the respondent. Its determination sufficiently disposes of the application before me hence there is no need of 8 determining the first ground of preliminary objection. Consequently the application is incompetent before me and I hereby strike it out with costs. 9