salum dishon 3333333

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MANYARA LAND REVISION NO. 000022139 OF 2024 SALUM DISHON AYOMAH............................... COMPLAINANT I APPELLANT / APPLICANT I PLAINTIFF VERSUS SALOME NELSON MNYAMI............................... RESPONDENT / DEFENDANT JUDGMENT KAHYOZA, J, Salum Dishon Ayoma, (the applicant) sought this Court to call, examine and revise the interim order the District Land and Housing Tribunal (the DLHT) ordering him to give vacant possession of the suit land or house and restraining him from entering the house. The ground for revision is that he was denied an opportunity to be heard before the order was given. The respondent deposed that the DLHT heard the application ex-parte and granted the order the applicant seeks to challenge. Given the fact that there is no disputed that the applicant was not heard before the DLHT ordered him (the applicant) to give vacant possession of the suit land or house and restrained him from entering the house, the issue is whether the tribunal was justified to issue such an order without affording the applicant a hearing. Brief and undisputed facts are that; Salome Nelson Mnyawi, the first Respondent, instituted an application before the DLHT against Salum Dishon Ayoma praying for; one, a declaration that she was the lawful owner of the suit land or house and Salum Dishon Ayoma, the applicant a trespasser; two, the applicant (the respondent before the tribunal) to give vacant possession; and three, costs and any other remedy the DLHT deemed fit to grant. Before that application was heard and determined, Salome Nelson Mnyawi filed another application seeking the DLHT’s order to restrict the applicant, his agents, or employees to get close to the business of adding value to tanzanite minerals and until the pending dispute is determined. The DLHT heard the application ex-parte and granted it. It ordered the applicant to give vacant possession and restrained him to enter the suit land until the determination of the main application. The record also depicts that the DLHT issued another ex-parte order compelling the applicant to open the doors of the suit house he had closed. Aggrieved the applicant applied for revision. Before hearing the application, I entertained doubts whether it was proper to file an application for revision against an interlocutory order. It is settled law that no appeal or application for revision lies against an interlocutory order. Section 79 of the Civil Procedure Code [Cap. 33 R.E 2019] (the CPC) provides that- “79-(l) The High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, and ifsuch subordinate court appears- 1. to have exercised jurisdiction not vested in it by law; 2. to have failed to exercisejurisdiction so vested; or 3. to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. “(2) Notwithstanding the provisions of subsection (I), no application for revision shall lie or be made in respect of any preliminary or interlocutory decision or order of the Court unless such decision or order has the effect offinally determining the suit. ” The parties filed written submissions to address the issue raised by the court and the application for revision. Mr Maeda, the applicant’s advocate argued that the applicant was entitled to apply for revision as the interim order had the effect of finally determining the suit. The respondent opposed the applicant’s contention that the ruling and order of the DLHT finally determined the application or suit. She prayed the court to find that the application was not tenable. To support her contention, she cited the case of Tanzania Motor Services Ltd an Another v Mehar Sing t/a Thaker Sing, Civil Appeal No. 115/2005. Indisputably, the parties agree that no application lies for interlocutory orders unless the order complained of finally disposes of the rights of the parties. This is the correct position of the law. In Peter Noel Kingamkono v. Tropical Pesticides Research, Civil Application No. 2 of 2009 (unreported) the Court of Appeal stated that- "In view of the above authorities, it is therefore apparent that in order to know whether the order is interlocutory or not, one has to apply” the nature of the order test”. That is, to ask oneself whether the judgement or order complained offinally disposes of the rights of the parties. If the answer is in the affirmative, then it must he treated as a final order. However, if it does not, it is then an interlocutory order. The task of this court is to find out the order in the present case, is an interlocutory one therefore not subject of revision or it finally determines the right of the parties, thus, subject of revision. An interlocutory order as defined by Halsbury’s Laws of England (4th Ed.) vol. 26 para. 506 is- "an order which does not deal with the.final rights of the parties, but either (I) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure; or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed interlocutory." (emphasis is added). I reviewed the order and the main application to find out whether it finally determines the right of the parties. The respondent’s prayers in the main application were; one, the declaration that the applicant (Salum Dishon Ayoma) is a trespasser and the respondent is the lawful owner of the suit land or house; two, an order to the applicant to give vacant possession; and finally, an ord$r to restrain the applicant from entering the suit house. In its injunctive order, the DLHT ordered the applicant to give vacant possession and restrained him to enter the suit land until the determination of the main application. Obviously, the injunctive order went beyond the interlocutory order as it had the effect of finally determining the right of the parties. The DLHT granted the prayers in the main application vide an interlocutory application and it did so without hearing the applicant. I find without hesitation, that the DLHT’s interlocutory order is subject of revision as it has the effect of finally determining the rights of the parties. The doubts that made the court raise the suo mottu preliminary objection arc cleared, thus, the application will be determined on merit. Is there any reason for revising the DLHT’s order? The applicant’s ground for seeking this Court’s intervention is that the DLHT did not hear him before it granted the interlocutory order. There is no doubt that the DLHT heard the interlocutory application ex- parte. The respondent deponed that the DLHT heard the application ex-parte. She submitted that the matter proceeded ex-parte as the applicant refused service. In his rejoinder, the applicant advocate submitted that it was not true that the applicant refused service as the process served did not provide proof of service. I examined the respondent’s counter affidavit and found nowhere did she depone that the applicant refused service notifying him to appear for hearing of an interlocutory application. Her submission that the applicant refused service is baseless. Submission is not evidence. The evidence is found in the Pace. 3 affidavit or counter affidavit. Reading paragraph six of the counter affidavit it is obvious that the matter proceeded ex-parte. I had an opportunity to read the chamber summons and found that it had two parts. On one part, the respondent prayed to proceed ex-parte and on the other she prayed the matter to be heard inter-partes. The tribunal heard the application in the absence of the applicant because the respondent had made such a prayer and not because the applicant refused service. Thus, the tribunal condemned the applicant without hearing him. Surprisingly, after the tribunal heard the application ex- parte did not order Salum Dishon Ayoma to be served and fix the date for hearing the application inter- partes. It had no intention to hear the application inter-partes. It is trite law that right to be heard is one of the fundamental rights, breach of which vitiates the proceedings. See the case of Abbas Sherally and another vs Abdul Sultan Haji Mohamed Fazalboy (Civil Application No. 133 of 2002) [2005] TZCA 105 (17 November 2005) where the Court of Appeal emphasized the importance of the right to be heard as follows- "The right of a party to be heard before adverse action or decision is taken against such party has been stated and emphasized by the courts in numerous decisions. That right is so basic'that a decision which is arrived at in violation of it will he nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice. ”. The order of the DLHT was given in breach of the right to be heard. Thus, the proceedings and the resultant order are a nullity. In fine, I allow the application, declare the proceedings and the injunctive order a nullity. Consequently, I quash the proceedings and set aside the ruling and the order. I order another chairman to hear the application inter-partes, after affording the applicant an opportunity to file a counter affidavit. The applicant is awarded costs. It is ordered accordingly. Dated at Babati, this 3rd day of April 2025. J.R.KAHYOZA, JUDGE Court; Ruling delivered in the absence of the parties. B/C Mr. Shedrack present. J.R.KAHYOZA, Page. 4 JUDGE 3.4.2025 Dated at THE HIGH COURT OF TANZANIA AT MANYARA this 3rd of April 2025 . J. R KAHYOZA v«. JUDGE OF THE HIGH COURT