Land Revision No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND REVISION NO. 000015993 OF 2024 CASE REFERENCE NO. 202407051000015993 YUSUF SHAMSHUDIN................................. ........................ 1STAPPLICANT SHAMSHUDIN M. HAIDERBHAI.......................................... 2nd APPLICANT HUSSEIN S .MOHAMEDALI................................................ 3rd APPLICANT MOIZ S. HAIDERBHAI...................... 4th APPLICANT RASHIDA SHASHUDIN...................................................... ,.5™ APPLICANT DURANA SHAMSHUDIN....................................................... 6th APPLICANT SAIDA SADIKALI...................... 7th APPLICANT VERSUS VIRNDER KUMAR WATTS (the administrator of the estates the late one SURYA PRAKASH WATTS).................... 1st RESPONDENT KHUZAIMA SADIKALI MOHAMED.................................... 2nd RESPONDENT MSOLOPA INVESTMENT COMPANY LTD......................... 3rd RESPONDENT RULING 10/10/2024 & 13/12/2024 GWAE, J This application is brought by the applicants herein under section 43 (1) (a), (b) and 2 of the Land Disputes Courts Act, Cap 216, Revised Edition, 2019 (LDCA), section 68 (c) and 95 of the Civil Procedure Code Cap 33, i Revised Edition, 2019 (herein the CPC). They are praying for the following orders;- 1. That, this Court be pleased to call for and examine the records of the proceedings and decision of the District Land and Hosing Tribunal for Kinondoni at Mwananyamala (DLHT) in Land Application No. 4 of 2023 delivered by Hon. R. L. Chenya dated 10th August 2023 for the purpose of satisfying itself as to correctness, legality, propriety of any finding or order recorded or passed and set aside the decision for lack of compliance of legal procedure 2. Costs of this Application be provided for 3. Any other orders (s) that this Court may deem fit and just to grant Upon service of the copy of the application to the 1st respondent, the respondents advocate (Mr. Benjamin Kalume) raised a preliminary objection leading to the present ruling. The point so raised reads; " That, this application for revision contravenes with Order XXI Rule 62 of the Civil Procedure Code, Cap 33, Revised Edition, 2019, that is to say the applicants already filed objection proceedings through Misc. Application No. 547 of2023 in DLHTand the same was struck out, thus the only remedy available for the Applicants is to file a 2 fresh suit and not revision or appeal. Hence, is liable for dismissal on to entirety with costs." It is perhaps apposite to recapitulate briefs facts of what led to the filing of this application followed by the PO raised by the 1st respondent. Before, the 1st respondent herein filed Application No. 4 of 2023 against the 2nd respondent claiming to be the rightful owner of the suit land measuring two acres located at Boko Kongeni, Basihaya street-the then Kinondoni Municipality now llbungo Council. It was the 1st respondents version before the DLHT and before this Court through his counter affidavit that, the 2nd respondent trespassed into his land, purchased by his late father, Surya Prakash from one Ngoja Mkwavi Chuma in 1986, by erecting a structure therein in the year 2021. The DLHT proceeded with hearing of the disputed before it in the absence of the 2nd respondent who is said to have been served through both affixation and substituted service. Eventually, the DLHT rendered its ex-parte judgment on 10th August 2023 declaring the 1st respondent the lawful owner of the land in dispute. Before this court and through their different counter affidavits, the 1st respondent resisted the applicants' application by stating that, they are lawful owners of the disputed land by virtue of purchase as earlier explained 3 whereas the 2nd respondent did not oppose the application as she also claims ownership over Plots No. 255 & 257, contending to have been given to her by her late grandfather, Sadiki, the plot which is situated with the parties7 disputed land. On other hand, it is the contention of the applicants named herein, through their joint affidavit, that they are lawful owners of distinct surveyed plots in Block "D" located at Boko area in Ubungo Municipal Council. That, the applicants were given the said plots by their grandfather one Sadiki Haiderbhai who purchased the same from different persons and at different times. That, the applicants7 application was provoked by issuance of 14 days7 notice of eviction and demolition by the 3rd respondent on 15th November 2023. Subsequent to the issuance of the 14 days7 notice, the applicants filed an objection before DLHT, which was however struck out for being overtaken by event by the acts of the 1st and 2nd respondent of trespassing into the disputed land demolishing properties therein while the objection proceeding pending before DLHT was coming for hearing on the 5th day of December 2023. Consequently, this application for revision, which is under scrutiny. 4 However, as earlier pointed out, the 1st respondent's counsel canvassed the PO, which is now under scrutiny. Before me, Mr. Paul Elia, Mr. Benjamin Kalume and Mr. Stephen Fussi, all the learned advocates appeared for hearing of the application as well as the preliminary objection representing the applicant, the 1st respondent and 2nd respondent respectively. However, the 3rd respondent neither appeared nor did he file her counter affidavit. Hearing proceeded orally. However, as it is the general practice of our courts, I shall start with the arguments of the parties' advocates pertaining the 1st respondent's PO. If the PO so raised, is not sustainable, I shall subsequently consider the applicants' application on merit. Arguing for the preliminary objection, Mr. Benjamin was of the view that, this application is incompetent before the Court as the applicants had filed their application before DLHT for objection proceedings. Therefore, according to his opinion, the applicants were to institute a suit fresh by virtue of Order XXI Rule 62 of the CPC, which provides the remedy available for an aggrieved party in the objection proceedings. He invited the Court to the judicial precedent in the case of National Housing Corporation vs. Peter 5 Kassidi and four others, Civil Application No. 294/16/of 2017 (unreported- CAT). In his response, the learned counsel for the applicants argued that this application is proper due to two reasons; one that, it is very clear that, the applicants were not party to the former proceedings (Application No. 4 of 2023) and two that, there was applicants' application for objection, which was struck out for being overtaken by event. He added that, provisions of Order XXI of the CPC are related to the attachment, sale and not issues of ownership. It is his view that the available remedy is to file fresh suit but not revision application as the case here. He buttressed his stance by citing judicial precedents in Yahaya Hamis, Civil Appeal No. 225 of 2018 (reported at Tanzlii and Said Mohamed Said vs. Muhsin and another, Civil Appeal No. 210 of 2020 (reported in Tanzlii). Resisting the 1st respondent's PO, Mr. Paul submitted that, the only remedy available for the applicants who were not party to the former proceedings before DLHT and whose objection proceeding was struck out for being overtaken by event, is to file this application for revision and not a fresh suit. The 2nd respondent who has not resisted the application, did not argue the PO. 6 Having examined the arguments for and against the preliminary objection by the advocates for the 1st respondent and the applicants, I think it is pertinent to have provision of the law relied by the 1st respondent's counsel in support of his PO that is Order XXI Rule 62 of the CPC reproduced herein "Where a claim or an objection is preferred, the party against whom an order in made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive." The above provision of the law, in my considered view connotes that, where a person claims an interest or ownership to property subject of attachment in the execution of decree and such person has chosen to file an objection proceeding resisting such attachment or claiming interest to the property and upon an order or decision being made thereof, the remedy available for an aggrieved party is to file a fresh suit to establish his or her right or interests. Therefore, the order or decision in objection proceedings is conclusive in nature or in other words, the order in such proceedings is not appealable. 7 The Court of Appeal of Tanzania when faced with similar situation in National Housing Corporation vs. Peter Kassidi & Others (Civil Application 294 of 2017) [2022] TZCA 475 (27 July 2022) cited by the 1st respondent's counsel had these to say: "Going by the above-cited two authorities, we take it to be firmly established law that, pursuant to Order XXI Rule 57(1) of the CPC, where an objection is preferred and an order determining that objection is subsequently made, in terms of Rule 62 of the same Order, the only remedy available to the party against whom that order is made is to institute a regular suit to prove his claim. Put in other words, after the decision on an objection proceeding has been made by a competent court, there is no remedy for appeal or revision. The rationale behind the above-stated stance of the law is not farfetched. We hope that it will be immediately appreciated even by the doubting Thomases that, not emanating from a suit, an order determining objection proceedings is not appealable." The same position was also recapitulated in Thomas Joseph Kimaro vs. Apaisaria Martin Carl Mkumbo and Oscar Carl Mushin (2002) TLR 369 "Where a claim or objection is preferred, the party against whom an order is made may institute a suit to establish the 8 right which he claims to the property in dispute but, subject to the result of such suit, if any, the order shall be conclusive". In our instant parties' battle it is not in dispute that, the applicants filed their objection proceeding before DLHT vide Application No. 547 of 2023 and that, the same was struck out for being overtaken by event, namely, execution being carried out by demolishing and destroying properties in the disputed plots. (See paragraph 8 of the affidavit and paragraph 9 of the 1st respondent's counter affidavit). Guided by the provision of the law and case law, I firmly hold the view that, after the DLHT's order striking out the applicants' application for objection proceedings, the remedy available is to file a fresh suit before a competent court so that they can establish their rights over disputed land. One may apprehend the view as that of the applicants' counsel that, the applicants' objection was merely struck out for being overtaken by event. Thus, not decided on merit, but in my view, that is not correct position of the law since the present applicants' rights over the suit land (surveyed plots), is more conveniently determinable in a fresh suit rather than in an application for revision. 9 Similarly, the applicants are found not intending to challenge the act of the 1st respondent of proceeding with execution while there was pendency of their application for objection before DLHT but they are intending to challenge the order made in ex-parte judgment vide the 1st respondent's Application No. 4 of 2023. It follows that, this application is not entertainable in law. Had the applicants' intention was to challenge propriety of proceeding with execution while there was pendency of the objection proceedings preferred by the applicants, this application would be competently preferred. Having found that, the applicants' application is incompetent before the Court, I am therefore not supposed to determine the same on its merit or otherwise. In fine, I hereby strike out the applicants' application. Considering the nature of the matter, I refrain from making an order as to costs of the application It is so ordered DATED and DELIVERED at DAR ES SALAAM this 13th December 2024 M. R/GWAE JUDGE