Yakub safii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 30537 OF 2024 (Arising from Misc. Land Application No. 23d of2024 at liaia District Land and Housing Tribunal Hon. Mgulambwa, Chairperson) YAKUB OSMAN SIDIK...................................................................... APPLICANT VERSUS AL NAEEM ENTERPRISES LIMITED............................................. RESPONDENT RULING 10/12/2024 & 5/2/2025 N.E. MANDIA, J This is a ruling on preliminary points of objections raised by the respondent prior to filing her counter affidavit opposing the application for revision filed by the applicant. The respondent's preliminary objection is that: - i. That this application for revision is incompetent before this court for contravening mandatory provision of section 79(2) and Order XXXVII rule 5 of the Civil Procedure Code Cap 33 R.E 2019 ii. That, this application is prematurely filed as there is no order to be revised as the matter is still pending for determination before Hala District Land and Housing Tribunal. Hi. That, the Affidavit in support of the application is incurable defective for containing un-truthfut statement in paragraph 12,13 and 16 1 iv. That, this application is abuse of court process. Hearing of the preliminary objection proceeded by way of written submission. The respondent enjoyed the services of Anindumi Semu and Hance Mrindoko, learned advocated whereas the applicant was represented by Makaki Masatu and Mlingi Mkucha learned advocates. Mr. Semu prayed to abandon the 3rd ground of preliminary objection and argued on the 1st, 2nd and 4th grounds. In support of the 1st ground of objection, He cited the case of LEAH AMAMI UM BE & ANOTHER VS. FAUSTA AMAMI UMBE (administrator of the late Amani Umbe) & ANOTHER, Land Revision No. 4354 of 2024 which quoted the case of Junaco (T) Ltd & Another v. Harel Mallac Tanzania Limited, Civil Application No. 473/76 of 2016 where it was stated at page 7 that: "in view of the above authorities, it is therefore apparent that in order to know whether the order is interlocutory or not one have to apply the nature of the order test. That is to ask oneself whether the Judgment or order complained of finally disposed of the rights of the parties. If the answer is in the affirmative, then it must be treated as final order. However, if it does not it is then interlocutory order" Mr Semu contended that the order subject to revision is an interim or interlocutory order as the applicant was restrained from using the 2 warehouse pending mediation thus, the same expires upon completion of mediation and it did not determine the matter to its finality as the matter is still pending before the tribunal He contended further that the applicant should have filed an application to vary, discharge or set aside but not to apply for revision. The counsel cited section 79(2) and Order XXXVII Rule 5 of the Civil Procedure Code [Cap 33 R.E 2019] (herein referred as CPC) to substantiate his arguments. On the 2nd ground of objection, Mr Semu cited the case of TANZANIA 4NTERNATI0NAL CONTAINER TERMINAL SERVICES VS. JOHN LEMOMO & OTHERS, Misc. Civil Application No. 375 of 2022 where it was stated that: "It is worth noting that, supervisory powers of this court as envisaged in section 44(1) (b) of MCA and section 79 (1) (a) of the CPC, do not give room for this Court to revise the lower court proceedings in a manner suggested by Mr. Tarimo in his submission, as doing so is tantamount to subjecting administration ofjustice into chaotic state for denying the lower court with an opportunity to determine matters within their jurisdiction to their finality" Mr. semu was of the view that this court cannot revise the order since there is no revisable order or decision by the subordinate court and that, if any exists, is an interlocutory order which is not revisable. 3 On the 4th ground of objection, Mr Semu cited the case of GRAHAM RIOBA SONGWE & 2 OTHERS VS. FINA BANK LIMITED & 2 OTHERS, Petition No. 82 of 2016 (unreported), the High Court of Kenya (Constitutional & Human Rights Division) which inter alia at page 5 observed that: - "The concept of abuse of court/judicial process is imprecise. It involves circumstances and situation of infinite variety and conditions. It is recognized that the abuse of process may tie in either proper or improper use of the judicial process in litigation. However, the employment ofjudicial process is only regarded generallyas an abuse when a party" The counsel submitted that the applicant still has a room to challenge the said decision in the tribunal as the same is still pending for determination to its finality thus coming to this court is abusing the court process. He prayed for the application to be dismissed with costs. Opposing the 1st ground of objection Mr. Masatu contended that the application for revision is made under sections 41(1) and 43(1) and (2) of the Land Disputes Court Act [Cap 216 RE 2019] and not the section 79(2) of the CPC. That the decision of LEAH AMANI UMBE (supra) is not binding upon this court. Mr. Masatu submitted further that the applicant is challenging the correctness, regularity and propriety of the proceedings that resulted into an ex parte injunction order that occasioned injustice to the applicant hence, the revision is the appropriate remedy. Mr. Masatu submitted further that orders affecting rights of the parties given without affording a right to be heard are revisable under the provisions of the Land Dispute Court Act (supra). He cited the case of ROMAN SWAI VS. WIMANA DEOGRATIUS, Land Revision No. 41 of 2022) [2023] TZHCLandD 16579 (6 April 2023) to bolster the argument that the right to be heard is a constitutional right and a rule of natural justice. That, failure to accord the right to be heard to the parties vitiates the entire proceedings and causes the resultant decision a nullity. He cited the case of WEGESA JOSEPH M. NYAMAISA VS. CHACHA MUHOGO, Civil Appeal No. 161 of 2016 to substantiate the argument that an order issued without observing the principle of a right to be heard is a nullity. The counsel contended that the applicant was not given an opportunity to be heard and was affected by the order made ex parted maintaining status quo. He referred to the case of TRANSPORT EQUIPMENT LIMITED VS. DEVRAM P. VALAMBIA [1995] TLR 161, to bolster his argument that revision can be sought where a party is 5 aggrieved by a decision causing injustice and where no adequate remedy exists. That the order made to maintain the status quo is irregular or illegal and causes substantial injustice, justifying the intervention of the court as the proceedings that resulted into the issuance of the order was conducted in the absence of the applicant contrary to Order XXXVII Rule 4 of the CPC. Mr. Masatu submitted further that the ex parte order is challengeable in revision as it was a final order as regards to injunction proceedings between the parties. It was given pending determination of reference of the matter to the Ward Tribunal hence, in the District Land and Housing Tribunal the order was final. That no order was made for effecting service, filing counter affidavit nor for hearing of the application inter - parties. That the order complained of is both irregular and causes injustice to the applicant as it was granted without jurisdiction in terms of section 13(4) of the Land Disputes Court Act, (supra) as amended via (Miscellaneous Amendments) (No. 3) Act of 2021. Mr. Masatu contended that revision is available in any matter whose proceedings and ruling/order are tainted with irregularities. He referred in the case of SAMUEL KOBELO MUHULO VS. NATIONAL HOUSING CORPORATION (Civil Application 442 of 2018) [2022] TZCA 559 (14 6 September 2022) to bolster his argument. He contended further that the basis of the application for revision is that the proceedings and the resulting ex parte order are tainted with irregularity in that the Tribunal issued a final injunctive order without affording the applicant a right to be heard, without recording reasons for non-issuance of notice and without jurisdiction. Opposing the 2nd objection Mr. Masatu submitted that the objection has not been argued or elaborated instead the court has been referred to the decision of INTERNATIONAL CONTAINER TERMINAL SERVICES case (supra). That this objection lacks merit. That the facts of the cited case are distinguishable with the circumstances of this matter as the order is pleaded and attached to the application. On the 4th fourth objection, Mr. Masatu submitted that the case of GRAHAM RIOBA SONGWE & 2 OTHERS VS. FINA BANK LIMITED & 2 OTHERS, (supra) is inapplicable as the facts and circumstances of this case are different from what was in the cited case. Further, that the revision is a right granted by the provisions relied upon by the applicant in the chamber summons hence, the same cannot be an abuse of the court process. He cited the case of SHANTILAL M. THAKKAR VS. THE 7 ATTORNEY GENERAL [1991] TLR 69 where the court ruled that an application would not amount to an abuse of court process if there were legitimate legal issues raised for the court's consideration. He also referred to the case of VIP ENGINEERING AND MARKETING LIMITED AND OTHERS VS. CITY BANK TANZANIA LIMITED, CAT, Consolidated Civil Appeal References No. 6,7 and 8 of 2006 (unreported), at page 19, 20 and 21, the CAT held that: - "the right of a party to be heard before adverse action or decision is taken such a party has been stated and emphasized by courts on numerous decisions. The right is so basic that a decision which is arrived at in violation of it would be nullified." He contended that the applicant has a legitimate and legal cause for filing this application for revision and the purported claim that the applicant had a right to challenge the decision in the Tribunal is untenable in law and facts of this matter. That it is on record of the inherent irregularity in the proceedings and the ex-parte final order that was issued without notice, hearing and without jurisdiction that affected the applicant's right. Thus, the applicant has a right to challenge the proceedings and the order through revision. Finally, he prayed that the preliminary objections be dismissed with costs. 8 No rejoinder was filed by the respondent. Having considered the submissions from both parties, the vital question for determination is whether the preliminary objections raised by the respondent have merits. In response to the 1st objection, it is clear from the records that the application has been preferred under sections 41(1) and 43(l)(b) and 52(2) of the Land Disputes Court Act(supra) and section 95 of the CPC and not under section 79(2) of Order XXXVII Rule 5 of the CPC. The provisions under which this application is preferred empower this court to revise decisions and orders of the Tribunals if there has been an error material to the merit of the case involving injustice. At the outset, it is my view that both provisions in support and in opposing this application are proper as provided under section 51(1) of the Land Disputes Court Act(supra) which empower this court to apply the provisions of the CPC. After going through the records, I have noted that the Tribunal had entertained the injunction proceedings prior to mediation process in the ward tribunal which is a clear violation of section 13(4) of the Land Disputes Court Act, (supra) as amended via Written Laws (Miscellaneous Amendments) (No. 3) Act of 2021. In my view, the Tribunal had no 9 jurisdiction to issue the injunctive order unless the ward tribunal has failed to reach an amicable settlement. Again, it is on record that the order was issued without according the applicant his fundamental right to be heard. The order was issued in the absence of the applicant who was then the respondent. Part of the order reads "maombi haya yamekuja kutajwa mbele ya Mhe. M. Mgulambwa leo tarehe 08/11/2024 mbele ya wakili Bw. Hance Mrindoko akimwakih'sha mleta maombi. Mjibu maombi hayupo". The records do not show what efforts were made to ensure the applicant/respondent appeared in the Tribunal. In my considered view this was against Order XXXVII Rule 4 of the CPC which provides that: "4. The court shall in all cases, before granting an injunction, direct notice of application for the same to be given to the opposite party, except where it appears that the giving of such notice would cause undue delay and that the object of granting the injunction, would thereby be defeated'. It is also clear to me that the order has determined injunction proceedings in the Tribunal to its finality as there was no pending matter for hearing inter parties between the parties. The order reads "Mdaiwa na mawakala wake wamezuHiwa kumtoa mdaikwenyeghala (Tabata io warehouse) lililopo Kiwanja Namba 33 Mandela Road, ndani ya Manispaa ya Ilala Dar es Salaam, mpaka maombi ya suluhu yatakapo malizika Baraza la Kata Tabata. This clearly shows that the order had determined the matter to its finality as there was no any matter pending for the parties in the Tribunal. Again, the order has occasioned injustice to the applicant as it was issued before mediation by the ward tribunal for Tabata as required by the Land Disputes Court Act, (supra). In my view this ground of objection has no merit. On the 2nd objection, that this court cannot entertain the application for revision as there is no revisable order and if any exists, is an interlocutory order which is not revisable, I reiterate my earlier observation that the injunction order has determined the injunction proceedings to its finality as there was no pending application before the Tribunal. It is therefore, my considered observation that the injunction order is subject to revision as per section 79(2) of the CPC. In the circumstance, I also find that this objection to has no merit. On the 4th objection that, this application is abuse of court process, I am of the view that seeking revision of an order that is alleged to be irregular and unjust does not automatically constitute an abuse of court ii process. It is my position that the applicant has a legitimate right to challenge the decision on the grounds of procedural irregularities and violation of his right to be heard. In SELCOM GAMING LIMITED VS. GAMING MANAGEMENT (T) LTD AND GAMING BOARD OF TANZANIA the CAT held that: "The prayer for the interim injunctive order was given without giving the applicant an opportunity to be heard, contrary to the cardinal principle of natural justice that a person should not be condemned unheard, a principle now embodied in article 13 (6)(a) of the Constitution; no reasonable judge mindful of the duty to act judicially should have made such adverse order against the applicant" It is again my view that this objection is without merit. In light of the above analysis, and without prejudice to my observations, I hereby overrule all the preliminary objections raised by the respondent. In the circumstances, I also proceed to revise and set aside the order issued by the District Land and Housing Tribunal for Ilala in Misc. Land Application No. 234 of 2024. Each party will bear its costs. N.E. MANDIA JUDGE W * 05/02/2025 12