tanzania hospitality service ltd vs diamond remtulla 2 others 2023 tzhc 23197 30 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM (Arising from Mise. Cause No. 20 of 2023, in the High Court of Tanzania at Dar es Salaam) , MISC. CIVIL APPLICATION NO.223 OF 2023 TANZANIA HOSPITALITY SERVICES LTD APPLICANT Vs DIAMOND REMTULLA 1 ST RESPONDENT SHARIFA MBARAKA MFAUME 2ND RESPONDENT NSOMBO AND COMPANY LIMITED •••••••••••••••••••••••••••••••.•••••••3RD RESPONDENT RULING Date of last Order;JO-I0-2023 Date of Ruling;30-11-2023 B.K. PHILLIP, J This application is predicated under section 5(1) of the Appellate Jurisdiction Act, Rule 45 (a) and 47 of the Tanzania Court of Appeal Rules, supported by an affidavit sworn by Mr. Mustapha Shakala, the applicant's managing director. The applicant prays for the following orders; i} That applicant be granted leave to appeal to the Court of Appeal of Tanzania against the decision of her ladyship Justice Mkwizu, J, dated 21st April 2023 in Misc Civil Application No.20 of 2023 ii) Costs be in course. iii) Incidental orders as may be necessary. 1 The 1st and 2nd respondents filed counter affidavits in opposition to the application. The 3rd respondent did not file any counter affidavit. Thus, the hearing of this application proceeded ex-parte against the 3rd respondent. This application was disposed of by way of written submissions.The learned Advocates Richard K. Rweyongezaand George Kato Mushumba prepared the submissionsfor the applicant and respondent respectively. Beforegoing into submissions made by the learned advocates, a background surrounding this application is worthy to appreciate the coming discussion. The applicant 'herein had filed before this court an application for an extension of time to apply for revision of the decision of the District Court of Temeke in Civil Revision No.l0 of 2021. The application was grounded on the illegalities of the impugned decision. The applicant's arguments were to the effect that he bought the house located on plot No.130, Block "T" Temeke Municipality (henceforth "the suit property") from the 2nd respondent, Sharifa Mbaraka Mfaume, the administratrix of the estate of the late Mbaraka Omary. He enjoyed quiet possessionof the house until August 2022 when he was evicted from that suit property by the 1st and 3rd respondent without any notice, on the pretext that the suit property had been bought by the 1st respondent. Upon, making a proper follow-up of the matter, the applicant realized that the order for the sale of the suit property was issued by the court in Civil Revision No.l0 of 2021, without giving the applicant the right to be heard. In addition, the applicant alleges that there were two certificates of sale in respect of the suit property issued by the District Court on the same date but signed by two different Magistrates. One of the certificates of sale described the suit property as Plot No.570, 2 Temeke Wiles, while the second one described it as House No.570 Wailes Temeke. The applicant's application for an extension of time was heard on merit and this court ( Hon Mkwizu, J) dismissed it for want on merit. She was of the view that the alleged illegality was not evident on the face of the impugned decision. Aggrieved by the aforesaid Ruling the applicant lodged his notice of appeal and filed this application in hand to obtain the leave to appeal to the court of appeal. Submitting in support of the application, Mr. Rweyongeza referred this court to paragraph 8 of the affidavit in support of this application in which the applicant stated the grounds which he intends to table before the Court of Appeal, to wit; i) Whether the High Court Judge was justified to exclude the time spent by the applicant, who was not a party to the proceedings before the primary Court and the District Court, in making inquiries and obtaining necessary documents to support the application. ii) Whether having regard to the illegalities established including sale without an order of sale of the property from both the District and the Primary Court of Temekeand other irregularities, the High Court Judge was not bound to find that sufficient reasons had been established for the High Court Judge to grant. the application for revision. iii) Whether in considering the application for revisioa. the Honourable High Court Judge was right in applying the test used in the revie~ 3 namely an error on the face of the record in considering an application for revision filed by the applicant He went on to submit that the ground of illegality which was presented before the High Court by itself was sufficient to move the High Court to grant the extension of time sought by the applicant. He cited the case of VIP Engineering and Marketing Limited and 3 others Vs Citibank Tanzania Limited, Consolidated Civil Reference NO.6,7, and 8 of 2006 ( unreported) to cement his arguments. He pointed out that among the disturbing issues that he intends to table before the Court of Appeal is whether or not there can be a sale of property in the execution of a court decree without a court order. Relying on the decision of the Court of Appeal in the case of Abubakari Ali Himid Vs Edward Nyelwe, Civil Application No.51 of 2007, ( unreported), Mr. Rweyongeza argued that where there are disturbing features, leave to appeal to the Court of Appeal has to be granted, In addition to the above, Mr. Rweyongeza argued that the suit property falls within the estates of the deceased thus, the issue of who had a right to sell it comes. He contended that the same is a pertinent issue that could have resulted in this Court revising the decision of the lower court. He was of the view that this court did not consider the illegalities and irregularities in the whole process for the sale of the suit property instead it concentrated on the applicant's failure to account for the days of delay. Moreover, Mr. Rweyongeza was of the view that the legal principle applied by this court , when deciding on the ground of illegality, to wit; the alleged illegality should 4 ..- be on the face of the record, was wrongly applied as the same is applicable in review applications. In conclusion, Mr. Rweyongeza insisted that in this matter there are important and complex issues that deserves the attention of the Court of Appeal. He implored this court to grant the application. In rebuttal, Mr. Mushumba, started by briefly narrating the background of this application. He stated that the 1st respondent purchased the suit property in a public auction ordered by the Primary Court of Temeke in Probate No.683 of 2005 on 22nd March 2009. Through Probate Revision No. 12 of 2009 at the District Court of Temeke the then administrator of the estate of the late Mbaraka Omary Mfaume, one Janebi Mabarak Omary, but the same did not sail through. It was dismissed. The court ordered the eviction of the applicant herein from the suit premises to enable the purchaser to take possession of the same. After the demise of the 1st Administrator, the 2nd Administrator re-opened Probate No.683 of 2005 and was appointed as administrator of the deceased estate including the suit property. The 2nd administrator sold the suit property to the applicant herein whereas the same had already been sold to the 1st respondent herein. The 1st respondent had to lodge his complaints in the Primary Court, consequently, the primary court confirmed that the suit property was sold to the 1st respondent in a public auction in 2021. It directed the 1st respondent to institute a fresh case at the District Land Housing Tribunal to prove his ownership. Thereafter, the District Court of Temeke called and revised the aforesaid decision of the Primary Court. It directed the Primary Court to hand over the suit property to the bona fide purchaser. The applicant herein who 5 - purchased the suit property as a second purchaser tried to challenge the aforesaid decision of the District Court by way of revision by seeking to be allowed to apply for revision out of time, the same was dismissed, hence this application. Mr. Mushumbaargued that this court's refusal to grant the extension of time to apply for revision sought by the applicant was justifiable since the illegalities pointed out by the applicant could not be found in the decision of the District Court. He insisted that the sale of the suit property was ordered by the Primary Court. If this court allows this application the applicant will be challenging the decision of the Primary Court which has never been challenged at the District Court by the 1st Administrator of the deceased estate ( Also deceased) or the 2nd Administrator of the deceased estate. Moreover, Mr. Mushumba contended that the applicant in his application before this court had raised an issue of irregularities, not illegality. The two terms have different meanings. "Illegality" refers to something contrary to the law, unlawful whereas "irregularity" refers to a departure from or neglect of the proper formalities in the legal proceedings which may be waived or rectified by the court. In addition to the above, Mr. Mushumba submitted that by seeking shelter on the ground of illegality the applicant impliedly admitted that he was not able to account for each day of delay.In conclusion, Mr. Mushumba maintained that the impugned decision was not erroneous. The applicant did not cite any decision in which the courts of law granted an extension of time based on allegations of irregularities. The applicant is attempting to 6 .-- challenge the decision of the Primary Court which was never challenged at the District Court which is quite wrong. It is a trite law that leave to appeal to the Court of Appeal is granted when the intended appeal raises serious issues related to non-direction or misdirection which is likely to fail justice. He cited the case of Sango Bay Estate LtdVs Dresdner Bank ( 1971) EA. 17(2) and Said Ramadhani Mvuyanga Vs Abdallah Salehe (1996) TLR 74 to cement his arguments. He urged this court to dismiss this application. In rejoinder, Mr. Rweyongeza refuted Mr. Mushumba's contention that the applicant failed to demonstrate before this court the alledgedly illegalities in the impugned decision. He added that Mr. Mushumba's reply was discussing the merit of the impugned decision which is not the issue in the application at hand. He pointed out that he cannot fall into the trap of arguing on the merit of the impugned decision. He reiterated his submission in chief and maintained that the impugned decision is tainted with illegalities, and the obvious illegality in the impugned decision is that the applicant was not heard, contended Mr. Rweyongeza. He was of the view that the failure to accord the applicant the right to be heard alone is a sufficient ground for the extension of time to be granted. Also, he maintained his contention that there is no court order for the sale of suit property. Moreover, he was emphatic that when such a sale is used to evict the applicant from the suit property occasions injustice. He was emphatic that the applicant has shown good reasons for the grant of this application. Having analyzed the competing arguments made by the parties, let me proceed with the determination of the merit of this application which requires 7 this court to assess whether or not the applicant has raised any issue(s) worthy of the attention of the Court of Appeal or any arguable appeal. It is noteworthy that granting or refusing to grant an order for leave to appeal to the Court of Appeal lies in the court's discretionary powers. However, that discretion must the exercisedjudiciously. The conditions to be considered by the court in the determination of an application for leave to appeal like the one in hand were stipulated in the case of British Broadcasting Corporation Vs Erick Sikujua Ng'maryo, Civil Application No.138 of 2004 ( unreported), in which it was held that; " Needlessto say, leave to appeal is not automatic. It is within the discretion of the court to grant or refuse leave. The discretion must however; be judiciously exercised and on the materials before the court As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal .... However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical no leave will be granted. " And in the case of Abubakari Ali Hamid Vs Edward Nyelusye, Application No 51 of 2007 (unreported) the court said the following; "Leave to appeal is granted where the proposed appeal stands reasonable chances of success or where but not necessary the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal' 8 Guided by the holding of the court in the case of British Broadcasting Corporation (supra) and Abubakari Ali Hamid (supra) quoted herein above, I am of a settled view that this application has merit, as I shall elaborate soon. In this application, it is common ground that the applicant herein applied for an extension of time before this court relying on the ground of illegality. The position of the law is that for the court to grant extension of time relying on the ground of illegality the same must be apparaent on the face of the record, not that would be discovered by long drawn argument or process . (See the case of Lyamuya Construction Company Limited Vs Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 02 of 2010 (Unreported). The impugned Ruling reveals that this court declined to grant the extension of time on the ground that the point of illegality alleged by the applicant was not apparent on the face of the decision intended to be revised. Moreover, the court polnted out that the alleged ground of illegality was not in respect of the decision of the District Court. Mr. Mushumba was in one with the findings made by this court. NOW, the pertinent issue here is; Are there any disturbing features in this casethat require the attention of the Court of Appeal? My answer to this question is in the positive since the impugned decision is based on the court's findings that the point on illegality alledged by the applicant was not apparent on the face of the record, therefore, the issue on whether or not the point on illegality alleged by the applicant was not apparent on the face of the record is worthy the consideration of the Court of Appeal,bearing in mind Mr. Rweyongeza'scontention that the applicant was not accorded the right to 9 .(_ be heard. In the upshot, I hereby grant the applicant the leave to appeal to the Court of Appeal. JUDGE. 10