SHABANI YUSUPH ADMN SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO. 19293 OF 2024 (Arising from the Decision of the District Land and Housing Tribunal for Bagamoyo at Bagamoyo in Review Application No 241 of2021 delivered on 17th July2024) SHABANI YUSUFU (as administrator of the estate of the late HIDAYA SENDEGE)................................................... 1st APPLICANT ASHURA MIHAMBO (as Administrator of the Estate of the Late HAJI MKUCHA)............................................... 2ndAPPLICANT SHABANI CHOMI..........................................................................3rdAPPLICANT TATU HAJI................................................................................... 4thAPPLICANT MWANAHAMISI HAJI.................................................................. 5thAPPLICANT OMARY MPEMBA.......................................................................... 6thAPPLICANT MAMA NYAULE............................................................................. 7thAPPLICANT RAMADHANI RILA MSOMA (as Administrator of the Estate of the Late RILA MUSOMA)......................... 8™ APPLICANT MOHAMED BOTEA.................................................... 9th APPLICANT MAMA KASANURA..................................................................... 10™APPLICANT HALIMA IDD.............................................................................. 11™APPLICANT KUIMBAU SALUM....................................................................... 12™APPLICANT TISHI CH ALE.............................................................................. 13™APPLICANT HADIJA AMDALABU................................................................... 14™APPLICANT WAZIRI SELEMANI.................................... 15™ APPLICANT KIPWEZA MTAPEWA (as Administrator of the Estate of the Late HAJI ATHUMANI..................................................... 16™APPLICANT MAMA MANGESAWIE................................................................ 17™APPLICANT HAJI SHABANI........................................................................... 18™APPLICANT VERSUS IBRAHIMU SALUM SUUD............................................ RESPONDENT RULING 2Sh November & 17th December2024 L, HEMED, J. This application originates from the decision of the District Land and Housing Tribunal for Bagamoyo in an Application for Review No. 241 2 of 2021. The said application for review was presented by the herein applicants where they sought to review the judgment of the District Land and Housing Tribunal for Kibaha at Kibaha in Application No. 89 of 2012 which was decided in favour of the herein Respondent. Before this court, the applicants are seeking for the following orders:- "a) That, this Honourable court be pleased to revise the decision and orders of the District Land and Housing Tribunal of Bagamoyo on Review Application No. 241 of 2021 arising from Application No. 89 of 2012 before Hon. Njiwa, chairman in the District Land and Housing Tribunal at Kibaha and make such order that the said Ruting and order are illegal, contradictory and lead to injustice on the part of the Applicants (sic) and other residents who were not part to the proceeding of that application. b) That this Honourable Court be pleased to revise the decision and orders and give supplementary order to quash the decision and order that denied the Applicant (sic) Application for review and furthermore give orders that names of other applicant illegally added and were not part of any proceedings in Application No. 89 of 2012 be removed as this is a dear mistake and error 3 apparent on the face of the record that the honourable tribunal failed to rectify. c) That this Honourable court be pleased to revise the decision and orders. And (sic) give supplementary order to quash the decision and order that denied the Applicant Application for review and furthermore give orders that the boundaries of dispute land be revisited and boundaries be property identified with registered numbers since the dispute land is registered with the land offer but it was identified locally which make it a mistake and error apparent on the face of the record that the Honourable tribunal failed to rectify. d) Cost of this Revision be borne by the Respondent. e) Any other relief as the Honourable court shall deem just and fit to grant." The application has been taken at the instance of Brooke Attorneys and supported by the affidavit of one Nikolus Edwin Kashililika, advocate of the applicants. The Application has been resisted by the Respondent through the counter affidavit deponed by one Ibrahim Salum Suud. The counsel for the Respondent also raised a notice of preliminary objection in limine /Zfcthus: - 4 "... the application is misconceived for being contrary to Order XLII RULE 9 of the Civil Procedure Code Cap 33 RE2019 (sic)..." Both the preliminary objection and the application were heard simultaneously by way of written submissions which were promptly filed pursuant to the filing schedule directed by the court. Mr. Cheba Suleiman Kameya, learned advocate acted for the applicants while the Respondent enjoyed the legal service of Mr. Living Raphael, learned advocate. Let me start with the preliminary objection. I have read the rival submissions in respect of the preliminary objection. Basically, the arguments of all parties revolve around order XLII Rule 9 of the Civil Procedure Code [Cap.33 R.E 2019] which provides thus: - "No application to review an order made on an application for review or decree or order passed or made on a review shall be entertained." The arguments of the learned counsel for the respondent are such that the instantaneous application contravenes the above provision which is prohibitive in nature. On his part, the learned counsel for the applicants was of the view that the cited provision does not bar an aggrieved party to appeal or apply for revision. According him, it just depends on the circumstance of the case. He added that in case the review would have been allowed, the Respondent could have appealed on such decision. In his view, the only remedy available to the matter at hand is revision and not through an appeal. He fortified his argument by the decision in Yussuf Hamisi Mushi and Zamzam Yusuf Mushi vs. Abubakari Khalid Hajj, Gemaco Auction Mart International Limited and Frank Lionel Marialle, Civil Application No. 55 of 2020 on the point that when an application is rejected no appeal is allowed. The question is whether the preliminary objection holds water. I have revisited the provision of order XLII Rule 9 of the Civil Procedure Code {supra} to find out if the same prohibits the applications like the one at hand against the decision in review. The provision of Order XLII Rule 9 of the Civil Procedure Code in fact prohibits applications to review an order made on an application for review. In other words, the provision aforecited prohibits a person aggrieved by the decision in review proceedings to challenge the same by way of review. 6 The provision does not bar a person from challenging the decision in review by way of revision. In the upshot, I find no merit in the preliminary objection and the same is overruled. Let me turn to the merits of the application which has been brought under section 43(1) (b) and (2) of the Land Disputes Courts Act [Cap 216 RE 2019] which provides thus: - "43 - (1) In addition to any other powers in that behalf conferred upon the High Court, the High Court. (a) .... (b) May in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, on application being made in that behalf by any party or of its own motion, if it, appears. that, there has, been, an error, material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may think fit. (2) In the exercise of its revisional jurisdiction, the High Court shall have all the powers in the exercise of its appellate jurisdiction. "[Emphasis added] 7 The brief historical background of this matter is that, in the year 2012, the herein Respondent instituted at the District Land and Housing Tribunal for Kibaha Land Application No. 89 of 2012 against HIDAYA SENDEGE and 24 others claiming ownership of the land measuring thirty five (35) acres, located at Kingani, Bagamoyo District in Coastal Region. The said case was determined on merits where the Respondent herein was declared lawful owner of the suit landed property. The herein applicants who were parties to the said suit got aggrieved by the said decision. They attempted in several occasions to challenge the said decision. They did so through the following applications: - i. Misc. Land Application No. 962 of 2017 before this court seeking for extension of time to file appeal. ii. Misc. Land Application No. 602 of 2017 for extension of time before this court to apply for revision. iii. Misc. Land Application No. 814 of 2017 for extension of time to appeal to this court. iv. Misc. Application No. 250 of 2019, objection proceedings before the trial Tribunal. 8 In all the above applications, the applicants were unsuccessful. They opted for another blow, through an application for Review at the District Land and Housing Tribunal for Bagamoyo in Application for Review No. 241 of 2021. Having heard the application for review, the trial chairman found it to be an appeal in disguise and that he could not find any ground worth for review. He proceeded to dismiss the said application with costs hence this application for revision. I have keenly gone through the rival submissions and the question for determination is whether this application for revision is meritorious. According to section 43 (1) (b) of the Land Disputes Courts Act (supra), the court can only exercise its revisional powers if it appears that there has been an error material to the merits of the case involving injustice. Did the trial tribunal committed any error material to the merits of the application for review which was before it? In his efforts to move this court revise the ruling of the District Land and Housing Tribunal for Bagamoyo, the learned counsel for the applicants asserted that in Application No. 89 of 2012, the case was against 18 respondents but the judgment was delivered against 25 respondents. The learned counsel was of the opinion that the chairman absconded to discuss 9 0 on the additional seven (7) respondents clearly written on the judgment instead discussed on the seven (7) respondents whom the judgment was made exparte. In his view the said error was apparent on the face of the record that ought to be rectified by way of review so that the said judgment could not be executed against the applicants who were not in such proceedings. It was averred that the seven (7) respondents have been denied their right to be heard as the whole proceedings have never mentioned them or subjected them to any hearing process. According to the learned counsel, if the application for review would have been granted the names of those respondents who were wrongly mentioned in the judgment would have been removed. Another ground relied by the applicants was that the judgment of the trial Tribunal which was subject of review did not categorically describe the suit land. According to the learned advocate, failure to specifically describe the suit landed property may lead the execution to be executed against wrong party. The applicants also stated that the trial Tribunal also erred in law and fact in the process of admitting documents during trial of the suit hence denied the applicants' right over the suit landed property. io Let me start with the ground of the seven (7) respondents allegedly not being parties to the proceedings in Application No. 89 of 2012. It has been argued that the said respondents (applicants) were denied their right of being heard. I have encountered a question as to whether a person not party to proceedings can challenge the decision thereof by way of review. It is trite law that review is the remedy available only to parties to the judgment just as it is for appeals. I am holding so because under Order XLII Rule 3 of the Civil Procedure Code (supra) it is provided that: "3. The provisions as to the form of preferring appeal shall apply, mutatis mutandis, to applications for review" In the light of the above provision, it was thus not proper for the said seven (7) applicants (respondents) allegedly not parties to the original suit to challenge the judgment and Decree in Application No. 69 of 2012 by way of review. The only remedy was for them to prefer revision and not the way they opted. Nevertheless, I managed to peruse the record of Application No. 89 of 2012 and found that there were 25 respondents. The matter was heard interparties against 10 respondents and exparte against ii 15 respondents. The applicants appear to be aggrieved by the act of the trial tribunal in the original suit to deny them the right to be heard. The proper way to exercise the right to be heard in the matter proceeded exparte, is for the person aggrieved by the decision to apply to set aside such impugned judgment. As aforesaid, application for review No. 241 of 2021 before the Tribunal had ten (10) grounds. The said grounds can be summarized in English as follows:- i. That, the tribunal erred on its record to allow joinder of seven (7) respondents without following the requisite procedure; ii. That, the tribunal erred on the face of records to deny the right to be heard for the seven (7) respondents who were wrongly joined. iii. That, the Tribunal erred on the face of the records to consider evidence of two respondents as evidence of all respondents. iv. That, the Tribunal erred in law for failure to describe the suit landed property; v. That, the Tribunal erred in law on the face of records for failure to evaluate evidence on the ground that there was no affidavit or ordinary 12 procedures to authenticate the exhibits admitted in photocopy form. vi. That, the Tribunal erred in law and fact by receiving a copy of the sale Agreement without abiding to the law and procedure. vii. That, the trial Tribunal erred in law on the face of record for failure to property interpret the legality of the sale agreement which was admitted by the Tribunal into evidence. viii. That, the trial Tribunal erred in law on the face of record for having refused to hear from the respondents during visit of locus in quo. ix. That, the Tribunal erred in law and fact to comprehend evidence given by the respondents. x. That, the Tribunal erred in law and fact for delivering judgment which had no analysis of evidence and reasons thereof. The question is whether the above grounds were in line with the law governing applications for review. It is Order XLII of the Civil Procedure Code (supra) that governs applications like the one at hand. Grounds for review are provided under Order XLII Rule 1(1) of the Code where it is provided thus: - 13 "... from the discovery of new and important matter or. evidence, whictp, after, the exercise of_ due diligence^ was, not within, his, knowledge or could not be produced by him at the time when the decree was passed or order made, or on account some mistake or error, apparent, on the face of. the, record^ or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for review of judgment to the court which passed the decree or order. "[Emphasis added] From the above provision, there are only three grounds under which review can be preferred; one, discovery of new and important matter or evidence; two, on account of some mistakes or errors apparent on the face of the record; and three, any other sufficient reason. Records of the trial Tribunal reveal that the application for review before the trial tribunal was not preferred following discovery of new and important matter or evidence. Therefore, the first ground provided under Order XLII Rule 1(1) of the Civil Procedure Code is inapplicable in this matter. The next question is whether the grounds for review presented before the trial tribunal on account of mistakes or errors apparent on the face of 14 the record. The court of Appeal of Tanzania in TUICO (on behalf of its members) vs. The Chairman industrial Court of Tanzania and Another, Civil Application No. 114 of 2011 defined the word apparent error on the face of records to mean: - "...a/7 error which must be such as can be seen by one who writes and reads that is obvious and patent mistake and not something which can be established by a long drawn process reasoning on points..." I have gone through all ten (10) grounds which were presented before the Tribunal for review and realized that all of them not falling in the definition of apparent error on the face of records. The grounds required a long drawn process of reasoning making them fit for an appeal than a review. I am aware that according to Order XLII Rule 1(1) of the Civil Procedure Code (supra) review may be preferred for under "any other sufficient reason" The great scholar Mula in his book 'The Code of Civil Procedure, 18 Edition, Volume 3 at page 3672 interpreted Order 47 Rule 1 of the Code of Civil Procedure, 1908 (of India) which is in pari materia 15 with Order XLII Rule 1 (1) of the Civil Procedure Code [Cap 33 RE 2019], thus: - "The expression any other sufficient reasons used in Order 47 R 1 means reasons sufficiently analogous to those specified in the rule, any attempt except an attempt to correct an apparent error or attempt not based on any ground set out in Order 47 R1 would amount to abuse of the liberty given to the Tribunal under the Act to Review its own judgment." In the light of the above, the word 'any other sufficient reason'must be that which is analogous to discovery of new and important matter or evidence; and mistakes or errors apparent on the face of record. I have examined the grounds for review as were presented before the District Land and Housing Tribunal for review of judgment in Application No. 89 of 2012 and found that they were even not analogous to those specified in Order XLII Rule 1 (1) of the Civil Procedure Code (supra). The way I have observed the application for review before the trial Tribunal, I found it containing grounds of appeal. This implies that the 16 application for review was an appeal in disguise. I am holding so because all the applicants seemed to be dissatisfied with the outcome in Application No. 89 of 2012. They did not intend to correct errors or mistakes apparent on the face of records rather for variation of the entire decree which was not in their favour. It should be noted that errors of interpretation of the law or facts; procedural irregularities; and or failure to comprehend and analyze evidence are not good grounds for review. The said grounds and the like, make the court functus officio as acting on the said grounds would render the court to turn itself an appellate authority against its own decision. In Tanganyika Land Agency Ltd and 7 Others vs Manohar Lal Aggrawal, Civil Application No. 17/2008, the Court of Appeal of Tanzania emphatically stated thus: - "A review is by no means an appeal in disguise where by an erroneous decision is re-head and corrected but lies only for patent error without engagement in elaborated argument to establish it." Having examined the records of Application for Review No. 241 of 2021 before the trial Tribunal, I found it presented as an appeal in 17 disguise. The trial Tribunal was thus justified to dismiss it. In the upshot, the entire application is dismissed without costs. Order accordingly. DATED at DAR'<SW^AAM thi<TXth December 2024. 18