land revision No 15136 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO. 15136 OF 2024 (Arising from Land Application No. 17 of2021, District Land and Housing Tribunal of Kinondoni at Mwananyamala before Hon. Silas, Chairman.) WENCESLAUS SALEM.................................................. APPLICANT VERSUS ASHA ALISEN MTEMBEI RESPONDENT RULING Date of Order: 17/10/2024 Date of Ruling: 31/10/2024 A.MSAFIRI, J, This is a ruling on the application for revision brought by the applicant hereinabove seeking for the following orders; 1. That the Court be pleased to call for the records of the District Land and Housing tribunal for Kinondoni at Mwananyamala in Land Application No. 167 of 2021 and examine propriety and legality of the proceedings and order dated 27h April,2024 and revise the same. 2. Any other order(s) as the Honourable Court may deem just to grant. 3. Costs for the same. IL 1 The application is supported by two affidavits, one is of the applicant himself and the other is the one sworn by Marwa Magau, an advocate representing the applicant. The respondent also filed a counter affidavit contesting the application which was deponed by the respondent herself. The brief background of the present application is that the respondent Asha Aliseni Mtembei instituted a suit before the District Land and Housing Tribunal of Kinondoni at Mwananyamala (the trial Tribunal) against the applicant Wenceslaus Salema. She was claiming that she is the lawful owner of the plot located at Salasala, Kinondoni Municipality, Dar es Salaam(the suit plot) and that she bought the said plot from somebody called Adolph Lusasi. She claimed that the respondent has invaded her plot and built one room and a fence. She prayed before the Tribunal for declaration that she is the lawful owner of the suit plot and a permanent injunction against the respondent. The applicant in the instant matter is aggrieved by the act of the trial Tribunal of denying her the right of being heard by ordering the case to proceed with the stage of reading the opinion of assessors without taking the defence evidence on the reason of non-appearance of the then respondent. Jm 2 Hearing of this application was done by way of written submissions and the applicant was represented by Mr. Marwa Magau, learned advocate while the respondent was represented by Mr. Emmanuel Richard Machibya, learned advocate. In the composition of the ruling on this application and having gone through the parties' submissions in court through their advocates, the court have noted that the respondent in his submissions, have raised a point of law on the competency of this application before this court. Mr Machibya pointed that it is the position of the law that revision power can only be invoked where there is no right of appeal as it was established in the cases of Transport Equipment Ltd vs. Devram Valambhia [1995] TLR 161 and Felix Lendita vs Michael Longidu, Civil Appeal No. 312/17 of 2017. He added that the applicant could have waited until the judgement so as to appeal if the judgment would have been in favour of the respondent because if this instant application is granted, it will interfere with the jurisdiction of the Tribunal which is regulated by its own regulations that is the Land Disputes Courts (District Land and Housing Tribunals), Regulations, 2003. Lfl , 3 He submitted further that under the Regulations, the applicant was supposed to apply to have the orders of the trial Tribunal of 25/4/2024 to be set aside before applying for revision. Indeed, in the instant application, the applicant is moving the court to call for the records of the trial Tribunal and examine the propriety and legality of the proceedings and order dated 25/4/2024. I have read the proceedings and order of 25/4/2024 emanating from the trial Tribunal. The proceedings show that on 25/4/2024 the case was scheduled for hearing of the respondent (defence) case. The applicant was present in person but the respondent was absent. By that date i.e., 25/4/2024, two witnesses of the respondent (now applicant) have already adduced their evidence in the Tribunal i.e.SUl have completed her evidence in Tribunal and SU2 has not completed her evidence in chief. Therefore on 25/4/2024, the matter was coming for continuation of the hearing of the respondent's case. In absence of the respondent, the applicant moved the court to close the respondent case. The trial Tribunal closed the respondent case in his absence and ordered for the reading of the assessors' opinion which was set to be read on 20/6/2024. On that date, the assessors opinion was read before the applicant and the date of judgment was set. JVf 11 q- 4 The issue before me was whether this application seeking for this court to revise the order of the trial Tribunal of 25/4/2024 whereby the trial Tribunal moved and closed the respondent (defence case) is premature? Before determining this issue, which was raised in the midst of the hearing, the court gave the parties the chance to address it on the competency of the application specifically on whether the same was filed prematurely in this court. On 17/10/2024, the parties appeared in court and addressed on the raised issue. Mr Magau for the applicant conceded to the fact that the application was filed prematurely. However, he was quick to point that despite that, the applicant's purpose of seeking for revision was to seek for supervisory powers of this court which is granted under Section 43(1) of the Land Disputes Act, Cap 216. That under this provision, this court has powers to go through the proceedings of the Trial Tribunal and give directions which are just. He prayed that the court should be pleased to exercise this power over the unprocedural and irregularities in the trial Tribunal proceedings. On the respondent's side, Steven Byabato, learned advocate, appeared for the respondent. He submitted that the applicant has other remedies which he has not exhausted. He added that it is the law that the revisional powers should only be invoked where there is no right to appeal 5 After hearing of the submissions by the parties, the issue on whether the instant application was prematurely filed is answered in affirmative. The reason of concluding so is that the applicant has not exhausted the available remedies which are first; application to set aside the order of the trial Tribunal of 25/4/2024. This remedy is provided under the Regulation 11 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations,2003 which provides for the procedure where either party in the proceedings is absent on the date the matter is fixed for hearing. Regulation 11(1) (c) of the Regulations provides thus; 11(1)- On the day the application is fixed for hearing, the Tribunal shaii- (c) where the respondent is absent and was duly served with the notice of hearing or was present when the hearing date was fixed and has not furnished the Tribunal with good cause for his absence, proceed to hear and determine the matter exparte by oral evidence. (2) A party to an application may, where he is dissatisfied with the decision of the Tribunal under sub-regulation (1), within 30 days apply to have orders set aside, and the Tribunal may set aside its orders ifit thinks fit to do so and in case ofrefusal, appeal to the High Court. (emphasis added). 6 Here, the applicant has remedy of first, making an application to the Tribunal to set aside its order dated 25/4/2024 and in case of refusal, the applicant still have second remedy which is appeal to this court. There is no dispute that this court has revisional powers over the Tribunals but those powers are to be exercised wisely and judiciously in order to avoid chaos in the proceedings of the matter which could result into endless and unnecessary litigations. It is my view that where there are remedies provided by the law, the parties have to exhaust the available remedies. Since even the applicant through his advocate have conceded that the application is incompetent having been filed prematurely, the consequence is for the same to be struck out. I hereby strike out the application with costs and order that the case file of the trial Tribunal to be remitted to the said Tribunal to finalise the matter accordingly. 7