registered trustees of sos childrens villages tanzania vs igenge charles others 2017 tzhclandd 2 4 may 2017

IN THE HIGH COURT OF TAN ZAN IA (M W ANZA REGISTRY) AT MW ANZA LAND REVISON N O . l l OF 2017 (Arising from the decision o f the District Land and Housing Tribunal for Mwanza in Miscellaneous Land Application No. 160"D"of 2016 (Hon. Masao/ Chairperson) dated 3Cth June, 2017) THE REGISTERED TRUTEES OF SOS CHILDREN'S VILLAGES TAN ZA N IA ........................................ APPLICANT VERSUS IGENGE CHARLES ..................................................................... 1st RESPONDENT MASUMBUKO A L O N ................................................................. 2nd RESPONDENT CHACHA M ALW A...................................................................... 3rd RESPONDENT MAMA K U N D I........................................................................... 4th RESPONDENT JOYCE MSHABAHA................................................................... 5™ RESPONDENT PAULINA................................................................................... 6th RESPONDENT JOHN N D A K I.............................................................................7th RESPONDENT ANTHON ....................................................................................8th RESPONDENT ZEPHANIA MSHABAHA........................................................... 9™ RESPONDENT EDWARD KAZARABANHU..................................................... 10™ RESPONDENT KATENGEZA COURT BROKER AND AUCTION M A R T ..................................................................... 11th RESPONDENT Last order: 15/02/2018 Final Written Submissions: 26/03/2018 Rulino: 04/05/2018 RULING ON REVISION MAKARAM BA, J.: This Ruling is on application the Applicant, THE REGISTERED TRUTEES OFSOS CH ILDREN'S VILLAGES TANZANIAIodgedin this Page 1 of 16 Court on the 3rd day of August, 2017, against the above named eleven Respondents seeking for a revision of the proceedings and decision by the District Land and Housing Tribunalin Miscellaneous Land Application No. 160 "D"of 2016 (Hon. Masao, Chairperson) dated 30th June, 2017. The Application has been brought by way of Chamber Summons under Section 43(l)(a) & (b) and 43(2) of the Courts (Land Disputes) Settlement A ct No.2 o f 2002) Section 44(l)(a) & (b) of the M agistrates' Courts Act, Cap. 11 R.E 2002 read together with Sections 79(1) and 68(e) of the C ivil Procedure Code, Chapter 33 R.E. 2002 and any other enabling provisions of the law. The Application has been taken at the instance of FK Law Chambers and is supported by the sworn affidavit of Dorothy Ndege, a Principal Officer of the Applicant's organization, registered under the Non-Government Organization Act of 2002. The Application by consent was disposed of by way of written submissions and hence this Ruling. In the instant application this Court is being invited to call for, examine and revise the records and proceedings of the District Land and Housing Tribunalin Miscellaneous Land Application No. 160 "D" of 2016delivered by Hon. Masao, Chairperson on 30th June, 2017 and to be pleased to quash the proceedings and issue any decision, order and/or relief that it may deem fit and just to grant. In the very elaborative supporting affidavit by the Applicant following grounds are outlined as calling for remedial action by this Court by way of revision, namely; Page 2 of 16 1. The Tribunal acted without jurisdiction by entertaining execution application by the 1st Respondent while in actual fact the Judgment o f the Tribunal in LandApplication No. 160 did not give the Applicant a right Subject o f execution by the Tribunal. In the alternative, the Tribunal wrongly exercised jurisdiction it does not possess by taking away the jurisdiction o f the High Court 2. The Tribunal wrongly and incorrectly assumed its powers by entertaining execution proceedings in terms o f the provisions o f section 33(3) o f the Courts (Land Disputes Settlement) A ct o f 2002, which empowers the Tribunal to execute its own decrees, by proceeding to entertain and determine the proceedings whose powers are vested to the High Court. 3. The Tribunal committed apparent errors on the face o f the m erits o f the case involving injustice by failure to recognize that, the 1st Respondent who is the decree holder, did not file the counter affidavit to contest the Applicant's application and therefore the Tribunal acted with assumption in favour o f the 1st Respondent and without benefit o f fu ll fats o f the matter. 4. The Tribunal committed errors on the m aterial o f the case involving injustices by creating its own leadings whereby in the course o f determination o f the objection proceedings, raised the objection su o m oto, determined it and consequently decided the application without inviting parties to address it on the objection raised. 5. The Tribunal committed errors on the m aterial o f the case involving injustices by failure to act judiciously as a Tribunal had a duty to investigate whether the decree in appeal issued by the High Court in its Judgment dated l4 h January 2014 was sent by the High Court for execution. Page 3 of 16 6. The Tribunal committed apparent errors on the face o f the m erits o f the case involving injustice by creating its own pleadings and erroneously reached to the wrong conclusion that the Applicant ought to have sued Mwanza Municipal Council while in actual fact\ the said Mwanza Municipal Council was not a party to the objection proceedings. Apparently, as per the supporting affidavit, the Applicant took action after having been served with a 14-days' Notice by the l l thto the 14thRespondentsrequesting the Applicant to give vacant possession of the suit property, namely; CT No.31873 for Plot No.311-330, CT N o.31874 for Plot No. 219-235, CT No.31876 for P lot No.236- 246 and CT No. 31877 for Plot No. 30, 32, 33, 35, 37 & 39 within Mwanza City. The 11th to 14th Respondents served the Notice on the Applicant purporting to execute the Judgment of this Court in Land Appeal No. 55 of 2009 (Hon. De-Mello, 3.) dated 14th January 2014 declaring the 1st Respondents be the lawful owner of the disputed property. Apparent^ before the District Land and Housing Tribunal of Mwanza at Mwanza in Land Application No. 160 of 2007the 1st Respondent was suing the 2ndto the 10th Respondents claiming to be declared the lawful owner of the suit property measuring 28 acres located at Bugarika"A" within Mwanza City Council. The 1st Respondent was further claiming for vacant possession of the suit property. In its Judgment dated 30th April 2009, the Tribunal dismissed the entire application by the 1st Respondent with costs for being time barred. The 1st Respondent having been aggrieved by the decision appealed against it before this Court in Land Appeal No. 55 of 2009. Inits Judgment (Hon. De-M ello, 3.) dated 14thday of Page 4 of 16 January 2014, this Court upheld the appeal and quashed the decision of the Tribunal in Land Application No. 160 of 2007. The Applicant contends that in the suit that was instituted at the Tribunal in Land Application No. 160 of 2007 and later in the appeal to the High Court in Land Appeal No. 55 of 2009, the Applicant not only was not made a party thereat but was not made aware of the existence of the application when it was lodged at the Tribunal or when the appeal was lodged in this Court.Furthermore, neither the Board of Trustees of the Applicant nor its Directors were sued in their capacities or made a party to such proceedings. The Applicant in opposition of execution application intended to be carried out by the l stand 11th Respondents, lodged an application for objection proceedings at the District Land and Housing Tribunal for Mwanza at Mwanza, which was registered as Miscellaneous Land Application No. 160 "D" of 2016. The Applicant proceeded further to lodge an application for extension of time to file application for Revision against the Judgment of this Court in Land Appeal No. 55 of 2009. The Applicant contends further that after filing the application for objection proceedings, the Tribunal proceeded to consolidate the application together with other applications to include Miscellaneous Land Application No. 160 C, lodged by AsteriaKahiruKaroli, Miscellaneous Land Application No. 160 D, lodged by Simon Moshi Maseseand Miscellaneous Land Application No. 160 E, lodged by Ferdinand ChachaBaringenge, which by order of the Tribunal dated 16th January 2017, the consolidated applications were argued by way of written submissions.The record does not show if the Page 5 of 16 Respondents filed any counter affidavit against the application for objection proceedings. In its Ruling dated 30th June 2017, the Tribunal dismissed the application for objection proceedings with costs for lacking in merits. It is against this dismissal the Applicant is now seeking for its revision before this Court on the grounds as outlined herein above. . However, before I traverse the arguments of the parties in support and rival to the application, let me comment albeit very briefly on the cited Courts (Land Disputes) Settlement A ct No.2 of2002.The citation of this law is not in order. I have had occasion to pointout in another decision, in Land Appeal No.114 of 2016 betweenSamson Haruni Bina vs. NMB Bank,(HC)(Mwanza)(unreported) at page 8 of the typed Ruling dated 16thof March 2018that, the citation of C o u rts (Lan d D isp u te s S e ttle m e n ts) A c t o f 2 0 0 2 has fallen into disuse. As such that citation is no longer a proper citation by virtue of the R e ctific a tio n o f P rin tin g E rro rs (The Lan d D isp u te s C o u rts A ct, 2002) O rder, 2003, Government Notice No. 225 published on 8 /8 /2 0 0 3 , rectifying among others, the errors appearing in the La n d D isp u te s C o u rts A ct, No. 2 o f 2 0 0 2 by deleting the title " C o u rts (Lan d D isp u te s S e ttle m e n ts )" appearing at the top of every page of the Act and substituting for it the title " Land D isp u te s Courts." Therefore, as of the date of the publication of G.N. No. 225 on 08/0 8 /20 0 3 , the La n d D isp u te s C o u rts A ct, 2 002 (which is now Chapter 216 of the Revised Laws of Tanzania), is the proper citation of that statute. Let me now turn to consider the substance of the arguments by the parties with respect' to the instant application for revision. The Application has been brought under Section 43(l)(a) & (b) and 43(2) of Page 6 of 16 the Courts (Land Disputes) Settlement A ct No. 2 o f 2002, Section 44(l)(a) & (b) of the M agistrates' Courts Act, C a p .ll R.E 2002 read together with Sections 79(1) and 68(e) of the Civil Procedure Code, Chapter 33 R.E. 2002 and any other enabling provisions of the law. Section 43(l)(a) & (b) and 43(2) of the Courts (Land Disputes) Settlement A ct No.2 o f 2002 which is similarly worded as Section 44(l)(a) & (b) of the M agistrates' Courts Act, C a p .ll R.E 2002, save for whereas in the former it talks of the District Land and Housing Tribunal in the latter it refers to the District Court,and Section 79(1) of the Civil Procedure Code, Chapter 33 R.E. 2002, vests upon the High Court discretionary powers of revision. The provisions of the laws cited do not provide a definition of the term revision. However, in the B la c k 's Law D ictio n a ry (8th edition) at p. 1346, the term revision is defined a s ' a re­ examination or careful review for correction or improvement.’ Therefore the provisions of Section 79 of the Civil Procedure Code Act, Cap.33 R.E. 2002and Section 43(l)(a) & (b) and 43(2) of the Courts (Land Disputes) Settlement Act No.2 o f 2002 which is similarly worded as Section 44(l)(a) & (b) of the M agistrates' Courts Act, C a p .ll R.E 2002, clothes the High Court with revisionary jurisdiction to undertake such re­ examination in respect of a Magistrates' Court and District Land and Housing Tribunals' records with a view to ascertaining if the lower court or tribunal has occasioned any of the categories of misnomers outlined in sub-sections (a), (b) or (c) of section 79(1) of the Civil Procedure Code Act, Cap. 33 R.E. 2002 or Section 43(l)(a) & (b) and 43(2) of the Courts (Land Disputes) Settlement A ct No.2 of2002ar\6 Section 44(l)(a) & (b) of the M agistrates' Courts Act, C a p .ll R.E 2002. The duty of the High Court in that regard would be to 're v ise the case an d m ake Page 7 of 16 su ch o rd e r a s it deem s fit.' Therefore, the subject of re-examination by the High Court sitting in its revisional jurisdiction would be the lower court or lower tribunal record for purposes of ascertaining whether or not such court or tribunal did, in fact, perpetuate the misnomers spelt out in sub-sections (a), (b) and (c) of section 79(1) of the Civil Procedure Code Act, Cap. 33 R.E. 2002 or Section 43(l)(a) & (b) and 43(2) of the Courts (Land Disputes) Settlement A ct No.2 o f 2002or Section 44(l)(a) & (b) of the M agistrates' Courts Act, C a p .ll R.E 2002. It is trite law that the High Court may undertake revision either on its own motion or upon being so movedas it was succinctly stated in the case of F a te h a li vs R e p u b lic (19 7 2 ) 1 EA 1 5 8 {by the then East African Court of Appealon a decision from Tanzania).In exercising its powers of revision the High Court could use its wide powers as conferred on it by the inherent powers provision in sections 95 and section 68(e) of the Civil Procedure Code Act, Cap.33 R.E. 2002 respectively in any proceedings in which it appeared that "an e rro r m a te ria l to th e m e rits o f th e case o r in v o lv in g a m isca rria g e o f ju s tic e " had occurred. In terms of section 43(l)(a) of the Lan d D isp u te s C o u rts A ctr Cap. 216, the High Court has g e n e ra l su p e rv iso ry p o w e rs over all District Land and Housing Tribunals. Under that provision, the High Court may, at any time, call for and inspect the records of such tribunal and g iv e d ire ctio n s as it considers necessary in the interests of justice, and all such tribunals, shall comply with such direction without undue delay. In exercise of its supervisory powers under that section, the High Court may also exercise its revisional jurisdiction as per section 43(l)(b) of the Lan d D isp u te s C ourts A ct, Cap. 216under which Page 8 of 16 High Court is vested with discretionary powers to revise proceedings of the District Land and Housing Tribunal in exercise of its original, appellate and revisional jurisdiction. According to section 43(l)(b) of the Lan d D isp u te s C o u rts A ct, Cap. 216, the High Court may proceed either on its own motion {suo m oto) or by application by any party, and if it appears that there has been an e rro r m a te ria l to th e m e rits o f th e case in v o lv in g in ju stice , it may revise the proceedings and make such decision or order as it may think fit. In my considered view Section 43(l)(b) of the La n d D isp u te s C o u rts A ct, Cap. 216provides for the main ground which an Applicant seeking to invite the High Court to exercise its discretionary revisional powers has to establish. In the instant application, the Applicant has to show the existence of an error material to the merits of the objection proceedings before the trial Tribunal involving injustice to warrant this Court to intervene by way of revision. The provisions of Section 79(1) of the Civil Procedure Code, Chapter 33 R.E. iW ito n fe rs upon the High Court discretionary powers to 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 if such subordinate court appears-(a) to have exercised jurisdiction not vested in it by law;(b) to have failed to exercise jurisdiction so vested; or(c) 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. In my considered view section 79(1) of the Civil Procedure Code, Cap.33 R.E. 2002, which cameinto existence before section 43(l)(b) & (b) of the La n d D isp u te s C o u rts A ct, Cap. 216saw the light of the day, concerned the exercise by the High Court of its Page 9 of 16 discretionary revisionary powers over records of the proceedings of subordinate courts (magistrates courts). At that time the District Land and Housing Tribunal had yet to be conceived. As such there is no harm whatsoever for a party seeking for orders of the High Court by way of revision to move this Court under section 43(l)(b) & (b) of the Lan d D isp u te s C o u rts A ct, Cap. 216,without also resorting to section 79(1) of the Civil Procedure Code Act.As it turns out, section 68(e) of the Civil Procedure Code, Cap. 33 R.E. 2002 is not a jurisdiction conferring provision but it only enjoins the High Court to make such other interlocutory orders as it may appear to the court to be just and convenient, subject to any rules in that behalf, in order to prevent the ends of justice from being defeated. In my considered view, this provision broad as it is, could be safely used in conjunction with the inherent powers provision under section 95 of the Civil Procedure Code Act, both of which are salutary to the common law and equitable jurisdiction of the High Court so as ensures fairness in administering timely and accessible justice. As the Court of Appeal of Tanzania had occasion to put it in the case of A b lonP angalam ezavs. Jo a ch im K iw araka& A n o th e r [1 9 8 0 ] T L R 1 4 0 (C A ): "(iii) Unlike Section 79(c) o f the Civil Procedure Code, Section 44(l)ofthe Magistrates Courts Act goes beyond jurisdictional issues and covers a ll situations where it appears that there has been an error m aterial to the m erit o f the case involving injustice . " The Court of Appeal for Eastern Africa emphasizing on the fact of Section 79(1) o f the Civil Procedure Codsbeing limited to jurisdictional issues, ‘ Mustafa J held in the case of M atem ba vs. Yam ulinga [1 9 6 8 ] E.A. 6 4 3 that: Page 10 of 16 "it w iii be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise o f it ■ or the illegal assumption o f it The Section is not directed against condusionsof the law or fact in which the question o f jurisdiction is not involved . " 2) that as regards alleged illegality or m aterial irregularity urged by the applicant; according to the case o f Am ir Khan 1/5 SheoBakish Singh (1885) II Cal. 6 I.A 237 a Privy Council case - it is settled that where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with m aterial irregularity because it has come to erroneous decision on a question o f fact or even o f law ." This can equally be said of section 43(l)(b) & (b) of the Land D isp u te s C o u rts A ct, Cap. 216, which unlike section 79(1) o f the Civil Procedure Code, goes beyond jurisdictional issues and covers all situations where it appears that there has been an e rro r m a te ria l to the m e rit o f th e case in v o lv in g in ju stice . As Katiti J. stated in the case of Abdul Hassan vs. Mohamed Ahmed [1989] TLR 181; " The High Court revisional power under section 79 (1) o f the Civil Procedure Code o f 1966 are lim ited to cases where no appeal lies and issue such as whether the Subordinate Court has exercised jurisdiction not vested, if vested, whether it has failed to exercise the same or has acted illegally or with m aterial irregularity . " I wish to underscore here the fact that both under section43(l)(b) & (b) of the Lan d D isp u te s C o u rts A ct, Cap. 216andSection 79(1) of Civil Procedure Code, Cap. 33 R.E. 2002 Page 11 of 16 the powers of revision of the High Court are limited to cases where no appeal lies and issues such as whether the Tribunal or subordinate court, as the case may be, has exercised jurisdiction not vested in it, or if vested, whether it has failed to exercise the same or has acted illegally or with material irregularity are matters which can be tackled on appeal.In the instant application, surely the Tribunal having in its Ruling (Hon. Masao, Chairperson) dated 30th June 2017dismissed the application for objection proceedings Miscellaneous Land Application No. 160 "D" of 2016, that order cannot form a subject of revision proceedings before this Court since it is appealable. It is settled law now that the provisions of section 43(l)(b) & (b) of the Lan d D isp u te s C ou rts A ct, Cap.216, and section 79(1) of the Civil Procedure Code, Cap.33 R.E. 2002under which the instant application has been brought, are limited to cases where no appeal lies. In a matter which is appealable, as it is in the instant matter, it would be improperly before this Court and liable to be struck out. In the instant application, both the Applicant and the 1st Respondent in their respective submissions are in agreement that, the trial Tribunal in its decision dated 30th April 2009in A p p lica tio n No. 160 o f 2 0 0 7 between Ig en g e C h a rle s vs M asum bukoA lon an d 8 O thers, dismissed the Application for being time barred.The Applicant however, has submitted that,in that Application, the trial Tribunal declared that, the 1st Respondent had no right over the suit property. These are matters which already have been tackled and determined by this Court (Hon. De-Mello, J.) in Land Appeal No. 55 of 2009 and as the Applicant has stated, the Applicant has already lodged application for extension of time to file application for Revision before the Court of Page 12 of 16 Appeal against the Judgment of this Court in Land Appeal No. 55 of 2009. It is also an undisputed fact that, the 1st Respondent having been aggrieved by the decision of the Tribunal inA p p lica tio n No. 1 6 0 o f 200;^appealed against it to the High Court in Land Appeal IMo. 55 of 2009,which appeal was allowed by Hon. De-Mello J. and all the previous sale transactions were declared null and void. However, in his submissions, the Applicant hasstated that, the High Court also granted the Appellant/r1 Respondent the right to administer the estate of the late Michael. Given that the Applicant is seeking for the avenue of the Court of Appeal to contest the decision of this Court by way of revision, it is an abuse of the court process to also come before this Court on revision on a matter which will form a subject of consideration by the Court of Appeal. % In the instant application, the Applicant is seeking to contest the decision of the trial Tribunal to entertainexecution proceedings of Land Appeal No. 55 of 2009, on theargument that, the decree which is the subject of the execution proceedings by the 1st Respondent before the Tribunal was that which was issued by the High Court in Land Appeal No. 55 of 2009 and not that of the Tribunal in A p p lica tio n No. 160 o f 2007.Jhese are also matters which the Applicant can raise before the Court of Appeal in thepending Application for revision before that Court. The 1st Respondent argued that, the Tribunal in Misc. Application No. 160 of 2016 correctly ruled in favour of the ^Respondent; by ordering execution to proceed since the High Court in Page 13 of 16 Land Appeal No.55 of 2009 had ruled in favour of the 1st Respondent. The 1st Respondent argued further that, while in terms of section 33(3) of the Land Disputes Courts Act, Cap. 216, the Tribunal is empowered to execute its own orders; the fact that in this case an application to execute a decree of the High Court has been filed in the trial Tribunal itself is not fatal; rather a misdirection, if any, which is curable. The Applicant submitted that, the 1st Respondent, who was the decree owner, did not file a counter affidavit to contest the Applicant's application for objection proceedings before the Tribunal.lt is the further argument of the Applicant that, the Respondents, by order of the Tribunal, were all served by way of substituted service by publication in the local newspaper, the MwananchiNewspaper dated 16th November 2016. The 1st Respondent by not filing a counter affidavit, the Applicant further submitted, therefore had conceded to the application. In response to this line of submission, the 1st Respondent stated that, whether or not the 1st Respondent filed a counter-affidavit in respect of the objection proceedings before the Tribunal it does not mean that the Tribunalcould not decide the case on merits. Courts can decide on merits in respect of any dispute at any given time, depending on the circumstances, the 1st Respondent added. The Applicant submitted further that the trial Tribunal raised points for determining the objection proceedings; namely, the Applicant/l^ Respondent therein ought to have sued the Mwanza City Council, and therefore the Applicant herein was denied the right to be heard. On this point, the 1st Respondent submitted that courts have powers to decide a case according to evidence and can make observations accordingly. Page 14 of 16 On the observation by the Chairman of the trial Tribunal (Hon. Masao) that the Applicant/l51 Respondent ought to have sued the Mwanza Municipal Council; which is correct and the procedure invoked by the Applicant was not proper, the 1st Respondent submitted that, the observations by the Chairman were correct and the Applicant could not be called upon to address the Tribunal on the subject since these findings were made in the due course of delivering a ruling. The above submissions raise question relating to the nature of thedecree in appeal that was issued by the High Court in its Judgment dated 14th January 2014and whetherthe decree was sent to the Tribunal by the High Court for execution by the Tribunal and whether the decree of the Tribunal in Application No.160 of 2009 gave the 1st Respondent an executable right.As I have pointed out earlier in this Ruling, and as per the statement by theApplicant that, there are two applications pending before the Court of Appeal; Civil Application No. 41 of 2016, for extension of time to lodge application for revision to challenge the decision of this Court;and application for injunction restraining the 1st Respondent from continuing with illegal execution, all of the issues raised by the Applicant in its submissions become moot before this Court. They can be fronted in the Court of Appeal at the opportune moment when the pending application for revision comes for hearing before that Court.In that Court if the Applicant succeeds to appear and address it, can make submissions on whether the Tribunal acted without jurisdiction by entertaining application for execution by the 1st Respondent against the decree of the High Court without an order to do so. Page 15 of 16 It is for the above reasons that the application fails. It is hereby struck out for having been improperly filed in this Court. I shall not make any order for costs. Each party shall bear its own costs for this application. It is so ordered. R.V. MAKARAMBA JUDGE 04/05/2018 Page 16 of 16