CIV

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWANDAMBO. J.A., MAIGE, J.A. And KHAMIS, J.A.l CIVIL APPLICATION NO. 34/01 OF 2023 VICTOR ROBERT MKWAVI........................................................ APPLICANT VERSUS JOHN MATHIAS MANGANA as administrator of the estate of the late JUMA OMARY......................................... RESPONDENT (Application for review of the Judgment and Order of the Court of Appeal of Tanzania at Dar es Salaam) (Ndika. Sehel and Kairo, 3JA.1 dated the 30th day of November, 2022 in Civil Appeal No. 222 of 2019 RULING OF THE COURT 19thAugust, 2024 & 9th April, 2025 KHAMIS. 3.A.: The applicant, Victor Robert Mkwavi, lodged a notice of motion dated 26th January, 2023 seeking to review and set aside the judgment of this Court delivered on 30th November, 2022 in Civil Appeal No. 222 of 2019 involving the applicant as the appellant and the respondent herein as the respondent. The applicant filed Civil Appeal No. 222 of 2019 moving the Court to quash and set aside judgment of the High Court of Tanzania, Land Division in Land Appeal No. 126 of 2015 which ordered him to compensate the respondent, Juma Omary, for the unexhausted developments carried on the disputed property on Plot No. 339, Block "E" Kinondoni Municipality, Dar e s Salaam. The present matter originated from the District Land and Housing Tribunal for Kinondoni (the DLHT) where Juma Omary sued Victor Robert Mkwavi for declaration that he was the lawful owner of the disputed land. He pleaded that the one-acre land was allocated to him by the Mtongani Village Council on 14th June, 1986. In 1990, he constructed a three- bedroom house and kept cultivating both permanent and seasonal crops. He continued that, his occupation was interrupted in September, 2011, when the applicant trespassed onto the land and erected concrete poles alongside its boundaries claiming ownership thereof. The applicant opposed the suit and filed a counter claim, asserting ownership over the disputed land. He alleged that the land was allocated to him by the Ministry for Lands, Housing and Human Settlements Development vide a certificate of title No. 119410 dated 10th August, 2011. Upon trial, the DLHT declared Victor Robert Mkwavi as the lawful owner of the disputed land and ordered the respondent to vacate therefrom forthwith. Aggrieved by the DLHT decision, juma Omary preferred Land Appeal No. 126 of 2015. Resolving whether the DLHT was justified in declaring the applicant as the lawful owner of the disputed land, the High Court held that, the respondent (Juma Omary) made exhaustive developments on the disputed land and was entitled to compensation by the applicant. The High Court ordered valuation of the developments made on the plot for purposes of compensation. Accordingly, the High Court allowed the appeal with costs. Disgruntled by the findings of the High Court, Victor Robert Mkwavi filed Civil Appeal No. 222 of 2019 before this Court. The issues for determination was whether the applicant's title was lawfully made and whether the applicant had an obligation to compensate the respondent for the exhaustive developments on the disputed land. Having considered the parties' rival submissions, a three judge bench of this Court found that, the High Court findings on compensation was unassailable and restated the law that, a preexisting customary right of occupancy cannot be extinguished by a subsequent grant of a right of occupancy on the same plot of land unless compensation was duly paid before the grant was made. In determining the appeal, the Court opined that since the respondent received no compensation for the unexhausted improvements on the property, his anterior customary title was not extinguished. To that end, it concluded that, the purported grant of title to the applicant was ineffectual. The Court also vacated the order for compensation on the ground that it geared to unnecessarily facilitate the applicant to regularize his grant of title. Ultimately, the appeal was found meritless and dismissed with costs. The notice of motion in this application was supported by an affidavit sworn by the applicant on 17th January, 2023. The applicant averred that, the decision sought to be reviewed is based on manifest error on the face of the record resulting to miscarriage of justice on five grounds, namely: one, the Court upheld the High Court decision which was procured on the issuer of compensation that was adjudicated at the appellate stage and was neither pleaded nor framed as an issue for determination in the DLHT; second, the Court failed to maintain that the parties are bound by their pleadings; third, the Court erred in law in upholding the High Court decision that the issue of compensation is automatic and need not be pleaded or proved during trial; four, the respondent failed to join the Commissioner for Lands who is a necessary party having been involved in the acquisition, survey and demarcation of plots in the Songas Project; five, the impugned judgment contain illegalities as it left key points undetermined and did not make consequential orders thereof. Upon being served with the application, John Mathias Mangana filed an affidavit in reply in his capacity as an administrator of the estate of the late Juma Omary who passed on 5th February, 2021. In the said affidavit, the deponent averred that, the alleged grounds of review were raised and determined by the Court as grounds of appeal in the judgment sought to be reviewed. The respondent further averred that, the application is without merits allegedly because the applicant failed to identify the key points that were left undetermined by the Court. When the matter was placed before us for hearing, the applicant was represented by Mr. Dennis Michael Msafiri, [earned advocate, while the respondent appeared in person, unrepresented. Whereas the learned counsel for the applicant adopted the written submissions earlier on filed by Mr. Heavenlight Mlinga, learned advocate from Tema Law Chambers, Advocates and made few explanations, the respondent orally opposed the application. Although the notice of motion in the application cites five grounds, it is, in fact, predicated upon two grounds set out under rule 66 (1) (a) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules), that is to say: one, the decision is based on manifest error on the face of the record for failure to maintain that parties are bound by their own pleadings resulting into a miscarriage of justice and, two, the decision is a nullity on account of illegalities as it left undetermined some key points. Indeed, in the course of hearing, Mr. Msafiri abandoned grounds (a), (c) and (d) (first, third and fourth grounds) in the notice of motion which are, in reality, elaborations of the main ground set out shortly above. That means, the remaining ground under rule 66 (1) of the Rules is that, the decision is erroneous on the face of the record resulting into a miscarriage of justice as it failed to maintain that, parties are bound by their own pleadings. Our focus will therefore reflect that development. On the second and fifth grounds argued conjointly, the learned counsel for the applicant asserted that there was an error on the face of the record as the impugned decision failed to maintain that parties are bound by their own pleadings. He contended that, since the High Court misdirected itself on the issue of compensation, by upholding that decision the Court denied parties their right to be heard as they were not afforded an opportunity to canvass the issue of compensation. To buttress his submissions, he cited the cases of Pushap Raojibhai M. Patel (1960) E.A 1025 and Bibi Rehana Khatun v. Iqttdar Uddin Hafan AIR 1943 ALL 184 where the salutary principles on pleadings were restated thus, parties are bound by their pleadings and no findings should be made on a point not at issue. He also referred us to the decision of the Supreme Court of India as referred to in Sarkar's Code of Civil Procedure, 10th Edition, 2022 at page 1318, thus, an issue which did not arise in the pleadings should not be determined. On the fifth ground of review as reflected in the notice of motion, the learned counsel contended that, the impugned decision was erroneous for failure to address key points raised before it and failure to make consequential orders thereof. He further contended that, the Court erred in law for assuming that the respondent was not paid compensation in the absence of evidence on record to prove so. Finally, the counsel moved the Court to review its decision and make appropriate order, particularly, declaring the applicant as the lawful owner of the disputed land or trial de novo. In his brief response, the respondent adopted contents of the affidavit in reply and implored us to consider the reasons given in the impugned decision of the Court. He submitted that the applicant failed to meet the requirements for the grounds of review as stated in the law and, to that end, he invited us to dismiss the application with costs. In rejoinder, the learned counsel reiterated his earlier submissions and had nothing to add. We have scanned the record and considered the parties' rival submissions. The issue that commends for determination is whether the applicant has established a basis for the review of this Court's decision in Civil Appeal No. 222 of 2019. Rule 66 (1) (a) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules) prescribes the grounds under which this Court can review its decision, thus: "66 (1) The Court may review its judgment or order, but no application for review shaii be entertained except on the following grounds: (a) The decision was based on a manifest error on the face o f the record resulting in the miscarriage o fjustice; (b) N/A (c) The court's decision is a nullity (d) N/A (e) N/A..." The grounds stated under rule 66 (1) of the Rules were restated and interpreted by the Court in a string of its decisions. In Maulid Juma Bakari @ Damu Mbaya v. Republic, Criminal Application No. 63/01 of 2020 [2021] TZCA 334 (29 July 2021, TanzLII), we referred to our earlier decision in Chandrakant Joshubhai Patel v. Republic [2004] T.L.R 218 which defined an error on the face of the record to be an error that can be easily seen by one who runs and reads, an obvious patent mistake and not something that can be established by a long process of reasoning on points which may conceivably be of two opinions. It emphasized that, the purpose of review is to address irregularities of a decision which have caused injustice to a party. It is not an appeal in disguise for unsatisfied party. In support of the second ground of appeal, the learned counsel for the applicant contended that, compensation was neither pleaded nor framed as an issue for determination at the trial tribunal. He maintained that, the impugned decision necessitated a review because the Court upheld the High Court decision which was procured on the issue of compensation that was adjudicated for the first time at the appellate stage. Having read the impugned decision, we observed that the issue of compensation was raised in the second, third and fourth grounds of appeal. In the course of their respective submissions, parties drew attention of the Court on the principle that parties are bound by their own pleadings. Addressing that issue, the Court at page 9 and 10 of the decision, observed that: "It is logical to deal, at first, with the second, third and fourth grounds o fappeal. The contention here is that the learned Judge wrongly based his decision on the question o f non-payment o f compensation, which was neither pleaded by the respondent nor framed for trial. The appellant relies on several decisions including James Kabalo Mapalala v. British Broadcasting Corporation [2004] T.L.R 143...for the proposition that parties are bound by their pleadings, that cases must be decided on the issues on record arising from the pleadings, and that if it is desired to raise additionalissues they mustbe placed on record by amendment Replying, the respondent concedes the alleged omission but counters that he could notplead the question o f compensation because he had never been notified that the property in dispute had been acquired by tfie land allocation authority for 10 it to be reallocated to another person...the respondentsupports the learnedJudge's view that the question of compensation arose automatically." In tackling the issue at pages 11 to 12 of the impugned decision, the Court reasoned and concluded that: "It is striking that despite the above issue having not been pleaded or framed for trial, the parties led evidence on it While the appellant asserted that all previous owners o f surveyed land within the Songas Project area were paid compensation prior to their allocation, the respondent denied being compensatedfor his property. The appellant made a blanket claim that compensation was paid but he did not specifically say whether the respondent received any such payment His witness, Amon Kirumbi, a State attorney from the Office o f the Commissioner for Lands, claimed that all procedures were followed in making the grant but did not specifically state whether compensation was duly paid. In the premises, the learned appellate Judge's finding that no compensation was paid is plainly unassailable. Consequently, the three grounds o f appeal under consideration fail." The excerpt above demonstrates that compensation was a protracted issue raised as one of the grounds of appeal before the Court. That long drawn out issue was exhaustively considered by the Court and ultimately rejected because the parties had led evidence on it. In the circumstances, we are in agreement with the respondent that, having been raised, considered and rejected by the Court, the alleged omission to plead the issue of compensation cannot be brought again through a back door as this Court has no jurisdiction to sit on appeal of its own decisions. On the fifth ground of review as reflected in the notice of motion, the learned counsel contended that the impugned judgment contains illegalities, namely, a conclusion that the respondent was not paid compensation was just assumed and not based on the evidence available on record. This assertion should not detain us as the applicant did not demonstrate to our satisfaction as to how the Court's findings were assumed or not supported by the evidence on record. To the contrary, in addressing the issue of compensation, the Court considered the evidence on record led by the applicant, the respondent and one Amon Kirumbi, learned State Attorney from the Office of the Commissioner for Lands in finding that, no compensation was ever paid to the respondent as found by the learned High Court Judge. This is evident at pages 11 to 12 of the impugned decision. As earlier on stated, this issue was sufficiently determined by the Court and therefore, it cannot be re-opened by way of review. For the fore stated reasons, we find no merits in this application which stands dismissed with costs. DATED at DODOMA this 8th day of April, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Ruling delivered this 9th day of April, 2025 in the presence of the applicant in person and Stella Simkoko, learned counsel for the respondent both through virtual court from High Court of Tanzania at Dar es Salaam; is hereby certified as a true copy of the original. VI PEPU COUI