zabiuna ahamad nyoni v victor eusebius kilowoko another 2023 tzhc 21358 25 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB - REGISTRY

AT SONGEA (LAND DIVISION) LAND REVIEW NO. 01 OF 2023 (Originating from the Judgment of the High Court of Tanzania at Songea in Land Appeal No. 04 of2023) ZABIUNA AHAMAD NYONI...... .................................................. .. APPLICANT

VERSUS VICTOR EUSEBIUS KILOWOKO ........................ 1st RESPONDENT ABDUL MAJID KILOSA .......... 2nd RESPONDENT EX-PARTE RULING Date of Last Order: 31/08/2023 Date of Judgment: 25/09/2023 U. E. Madeha, J. First and foremost, the above-named Applicant has preferred this application for review of the judgment of this Court in Land Appeal No. 04 of 2023. In fact, the Applicant's complaints against the decision are based on the following: i. The judgment was obtained by fraud. ii. That, there is apparent error in the face of record on the interpretation of section 68 of the Land Registration Act (Cap. 334, R. E 2019). i Hi. That, there is apparent error in the face of record for the failure of the Court to give order against the second Respondent. Who is in occupancy of the disputed piece of land. iv. That, there is a manifest error in the face of record in the issue of claiming the paid purchasing money of the disputed piece of land. v. That, the Court judgment has occasioned a serious miscarriage of justice to the applicant and the respondent. In this application the Respondent failed to enter appearance despite the summons being served through substituted service by publishing in a newspaper. In an albeit brief, the background of this application are as follows; in the year 2017 the Applicant bought the suit property from the first Respondent who claimed to be the legal

representative of the late Eusebius Filimoni Kilowoko. The purchase price was to be paid on installments and the last installment was to be paid on or before 30th October, 2017. It seems to be true that, the Applicant paid some of the purchase price however she failed to pay the remaining balance. Along with that, the first Respondent thought that the Applicant had failed to adhere to the terms of their contract. Notably, on 22nd February, 2018 the first Respondent sold the disputed land to the second Respondent. Thereafter, the second Respondent started making 2 some developments on the suit property. After the discovery of what was going on in the disputed land, the Applicant instituted an application before the District Land and Housing Tribunal for Songea claiming to be declared the lawful owner of the disputed land. After full trial, the trial Tribunal found the title of the disputed piece of land did not pass through the first Respondent to both the Applicant and the second Respondent while it was still the property of the late Eusebius Filimoni Kilowoko. Being aggrieved by that decision the Applicant unsuccessfully appealed before this Court. Coupled with the dissatisfaction by that judgment the Applicant has preferred this application for review on the grounds already stated above and prays for the orders that: Z This Court to vary its decision accordingly; ii. That the

proceedings and judgment of the Trial Tribunal be quashed and set aside the sale agreement be validated. Hi. That, this Court order for the continuation of payment of the purchase price between the applicant and the first Respondent. iv. Eviction order to the second Respondent who is the stranger to the contract. v. Costs of this application. 3 vi. Any other reliefs that this Court may deem fit and just for the interest ofjustice. As a matter of fact, this application was argued by way of written submissions. It is worth considering the fact that, this application was heard ex-parte against the Respondents. The Applicant was represented Mr. Maurice S. Mwamwenda, the learned advocate who filed his written submission on time. Arguing in support of the application, Mr. Mwamwenda started by giving the meaning of the word fraud and added that fraud is among the reasons for setting aside the judgment of the Court which was obtained by fraud in order to avoid injustice. As to the second ground of complaint is concerned, the Applicants advocate argued that there is an apparent error on the face of record on interpretation of section 68 of the Land Registration Act (supra). He referred this Court to the provisions of the law which defines the term disposition and proceeded to explain the procedures in disposition of landed properties. He concluded by stating that this Court failed to

interpret that provision of the law in the impugned judgment. Submitting on the third complaint he submitted that the judgment was obtained by fraud since the Court never stated anything in respect 4 to the second Respondent who is the one occupying the disputed land. He added that the second Respondent bought the disputed land as a second buyer and he bought the disputed land by fraud. On the fourth ground of complaint; he submitted that the Court erred by ordering the Applicant to claim for the paid purchase money since she was the real buyer. To buttress his argument, he cited the decision of the Court of Appeal of Tanzania in the case of Enock Kalibwani v. Ayub Ramadhani and Three Others; Civil Appeal No. 85 of 2023 and added that the one who acquired the land earlier had a title over it Coming to the last ground of complaint, Mr. Mwamwenda submitted that the judgment of the Court has occasioned a serious miscarriage of justice to the parties since it was supposed to be accompanied with an extracted decree but the Court has failed to abide with the provision of Order XX of the Civil Procedure Code (Cap. 33, R. E. 2019). For that reason, he argued that failure to extract a decree led to miscarriage of justice and he prayed for the prayers set in this application to be allowed. It is important to note that, the law on applications for review is now well settled that, a review

is by no means an appeal in disguise 5 whereby an erroneous decision is reheard and corrected. The principles underlying review is that the Court would have not acted as it had if all the circumstances had been known. Thus, review would be carried out when and where it is apparent that; Firstly, there is a manifest error on the face of the record which resulted in a miscarriage of justice. Secondly, the decision was obtained by fraud. Thirdly, that the applicant was wrongly deprived the right to be heard. Fourthly, the Court acted without jurisdiction. This stance was stated by the Court of Appeal of Tanzania in the case of Karim Kiara v. The Republic, Criminal Application No. 04 of 2007 (unreported). Generally, in an application for review the Applicant must show the errors or omissions which are apparent on the face of records and not otherwise. See the decision of the Court of Appeal of Tanzania in Elia Kasalile & Others v. Institute of Social Work, Civil Application No. 187/18 of 2018 (unreported). In the present application, the Applicant has five grounds of complaints which are already stated above. Having gone through those grounds of complaints and the submissions made by the learned advocate for the Applicant, it is my humble view that those complaints are not fit for review. I find no errors apparent on the face of record to 6 justify the application for review. In

fact, they are in a form of an appeal in disguise which is not allowed to be dealt with through review. Dealing with them will be an attempt for the Court to sit on appeal against its own judgment. Reference is made to the decision in the case of Mashaka Henry v. The Republic, Criminal Application No. 02 of 2012 (unreported), the Court of Appeal of Tanzania had this to stat: "It is our opinion that the applicant is attempting to have the Court sit on appeal against its own judgment, in the same proceedings; a jurisdiction the jurisdiction which the Court does not have; See Lakhamshi Brothers Ltd v, R. Raja (1966) EA 313 and Karim Kiara v. Republic, Criminal Application No. 04 of2007 (unreported)". Consequently, having stated all; I am of the considered view that the Applicant's application is devoid of merit. Principally, the Applicant has failed to prove that the Court's judgment was either obtained by fraud or it has any other errors apparent on the face of records. In the event the application for review fails and it is accordingly dismissed. I give no order as to costs. It is so ordered. 7 DATED and DELIVERED at Songea this 25th day of September, 2023. COURT: Ruling delivered on this 25th day September, 2023 in the presence of the Applicant and Mr. Maurice S. Mwamwenda, the learned advocate for the Applicant. The Respondent to be notified. Right of appeal is explained. 8