zaina leboi kikando 150 others vs miraji mbena 46 others 2022 tzhclandd 157 31 march 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR-ES-SALAAM MISC. LAND APPLICATION 584 OF 2021 (Arising from Land Case No. 121 of 2018) ZAINA LEBOI KI KAN DO & 150 OTHERS..................... APPLICANTS VERSUS MIRAJI MBENA & 46 OTHERS......................... RESPONDENTS Date of Last Order:28/03/2022 Date of Ruiing:31/03/2022 RULING MKAPA, J: On 24th September 2021, this Court delivered a Ruling in Land Case No, 121 of 2018 in which the plaintiffs therein (applicants herein) through their counsel Mr. Nestory Mkoba learned advocate, made an oral application to withdraw the suit with leave to refile in order to join other parties named, Chalinze District Council, Village Council for Magulumatari and the Attorney General, after a 90 day Notice. The said application was made on the date when the suit was set for hearing. Initially, on 16th October 2019, Mr. Mkoba had prayed before this Court to amend the plaint in order to join other parties (trespassers) to the suit land and leave was granted. The application to withdraw with leave to re-file the suit was dismissed for being abuse of court processes after the applicants herein failed to demonstrate sufficient reasons for not utilizing sufficiently the opportunity availed earlier on, when leave was granted by this Court to amend the plaint in order to join other parties (the trespassers). On 25th October 2021 the applicants lodged Miscellaneous Land Application No. 584 of 2021 seeking for review of this Court's decision in Land Case No. 121 of 2018. The application has been preferred under section 78 and Order XLII Rule (1) and (3) of the Civil Procedure Code, Cap 33 [R.E 2019]. The Memorandum of Review comprised of six grounds of review which can be summarized as follows; (i) The trial Judge erred in issuing two different orders from the one found in the Ruling and the one which appeared in the drawn order which left the Land Case No. 121 of 2018 unattended. (ii) The trial Judge mislead herself by considering the order to amend the plaint as similar to application for leave to withdraw the case with leave to re-file. (Hi) Failure by the trial Judge to record reasons for the application to withdraw with leave to re-fHe as submitted by the applicants. (iv) Failure by the trial Judge in appreciating the fact the plaintiffs had wished this matter to proceed to its finality. (v) Failure by the trial judge in appreciating the need to withdraw the suit and grant leave for re-filing. Mr. Nestory Mkoba, learned advocate, appeared for and represented the applicants while respondents were unrepresented and fended for themselves. While hearing the application parties consented and the court ordered the same to be argued by way of filing written submissions. In his written submission in support of the first ground Mr. Mkoba submitted that the trial Judge issued two different orders. That, at page 4 of the Ruling third paragraph it is stated the application to withdraw the suit with leave to re-file is denied, and consequently the suit was marked withdrawn. However, in the drawn order the Court ordered that the application to withdraw the suit with leave to re-file is dismissed. It was Mr. Mkoba's view that since the drawn order dismissed the applicant's prayer to withdraw the suit with leave to refile instead of allowing withdrawal of the suit, the Land Case No. 121 of 2018 between parties is pending as the Order did not mention anything on the Land case. Hence he prayed for the Court to review its orders. As to the second ground the counsel for the applicants submitted that, initially the applicants were granted leave to amend the pleadings for the purpose of adding more defendants. That, the law relating to amendment of pleadings does not bar further prayers on amendments as amendment of pleadings is different from withdrawal with leave to re-file. That, withdrawing with leave to re-file for the purpose of instituting the appropriate procedure involving a Government institution was sufficient reason for Court's consideration. Submitting on the third ground the counsel for the applicant submitted that the reasons for the application to withdraw the case with leave to re-file were not properly recorded as averred by the counsel for the applicant. That, the reason submitted by Mr. Mkoba on the date of hearing was the fact that, the whole village of Magulumasi was not in peace as the village council of Magulumatali village was acting as an agent of selling pieces of land that belonged to the applicants at any price. That, the council was vigorously inviting people to come to the village to purchase land which was in dispute. Regarding the fourth ground, it was Mr. Mkoba's submission that, on the date of hearing Land Case No. 121 of 2018 it was only the plaintiffs, herein applicants, who appeared and they had been in attendance in all appearances which is a clear indication that they were interested in adjudicating their matter. 3 On the fifth ground he submitted that, it was necessary when the case came up for hearing for the suit to be withdrawn with leave to re-file for the reasons submitted by plaintiffs' counsel that the Village Council which was unknown to the plaintiff earlier were engaging in allocating village land in dispute to other people. He final prayed for this application to be allowed. Responding to the above submission the respondents submitted the first and second grounds jointly that, the respondents were the ones who made an application to join the Village Council of Magulumatali. After making such application the plaintiffs' counsel then misled himself and made a prayer for withdraw of suit with leave to re-file instead of a prayer to amend the pleadings. It was respondent's view that, the phrase application dismissed or denial of application stands as a denial of the application to withdraw that suit with leave to re-file and the court after denying their prayer went on to withdraw the suit as prayed. Countering the third ground of review, it was respondent's submission that the court properly recorded all the facts and laws as adduced by both parties on the date set for hearing of the application and delivered a just verdict. Further that, the applicants failed to proof that some facts were omitted as required by the law under Section 110 of the Evidence Act. Cap 6 [R.E 2019] The respondents consolidated the fourth and fifth grounds of review and faulted the application for lack of proof and supportive legal authority which amounts to mere assumptions and facts proof. In their brief rejoinder, the applicants reiterated what they had earlier on submitted in submission in chief and added that the respondents did not provide any meaningful response and more so, they did not object to the prayer to join the Village Council of Magurumatari. 4 I have read and considered the submissions by both parties and I think the sole question to be asked is whether the application for review is maintainable. Order XLII Rule 1 of the Civil Procedure Code Cap. 33 [R.E 2019] crystallized procedure for review and the same reads; "Rule 1: (1) Any person considering himself aggrieved a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b) by a decree or order from which no appeal is allowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of Judgment to the court which passed the decree or made the order. "/Emphasis added.] What I gather from the aforementioned provision is the fact that, in the event of an a application for review basing on account of an error on the face of the record, the error complained about must be apparent, eye-striking, or self- evident and not one which need to detain a person through a long process of reasoning on points where there may be two opinions. The Court of Appeal in East African Development Bank Vs Blueline Enterprises Tanzania Ltd, Civil Application No.47 of 2010, (unreported), cited with approval the case of Chandrakant Joshubhai Patel V Republic [2004] TLR 218, and emphatically held: - '54/7 error apparent on the face of record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something 5 which can be established by a long drawn process of reasoning on points which may conceivably be two opinions... A mere error of law is not a ground of review.... That a decision is erroneous in law, is no ground for ordering review.... It can be said of an error that is apparent on the face of the record when it is obvious and se/f-evident and does not require an elaborate argument to be established. ” Guided by the above authority I will begin with the third, fourth and fifth grounds for review for the reasons which I will explain later. A reading through these grounds, there can be no doubt that, they call for this court to re­ determine and re - examine the evidence on record while this court had already gone through court records and analyzed the evidence before arriving at its decision. It is worth noting that a review is not an appeal in disguise whereby an erroneous decision can be re-heard and corrected. Thus the applicants should not turn this Court into an appellate court where the case can be looked upon and re-examined. The decision of the Court of Appeal of Tanzania in Halais Pro-Chemic V. Wella AG [1996] TLR 269 is illustrative on the matter when the Court held:- "The principle of revisionai powers conferred on the court is not meant to be used as an alternative to the appellate jurisdiction of the court." Guided by the above authority I found that the third, fourth and fifth grounds fall within the perview of an appeal thus unmaintainable. Turning to the first ground for review related to different orders made in the ruling and the one in the drawn order, the ruling in Land Case No. 121 of 2019 withdrew the whole suit while the drawn order dismissed the application. The defect is noticeable thus I need not be detained much, as this is an 6 apparent error on the face of record which was occasioned by slip of a pen hence this ground for review has merit. On the second ground of review, the plaintiffs in Land Case No. 121 of 2018 made a prayer to withdraw the suit with leave to re-file made under Order XXIII Rule 1 (2) (a) and (b) of the Civil Procedure Code R.E 2019 (CPC). The reason for such prayer was in order to join other necessary parties including the Village Council for Magulumatari and Chalinze District Council and for that matter the Attorney General having sued a Government body. The prayer was disallowed for failure by the applicants to demonstrate sufficient reasons as to why they failed to join the said parties when initially were afforded right to amend the pleadings. I find that this court had mixed up the two prayers as the two are indeed distinct prayers brought under different provisions. Since this is an error which is apparent on face of record, I also find the second ground for review has merit. Accordingly, as was submitted in Land Case No. 121 of 2018 that the Village Council of Magulumatari was later found to be involved in allocating the suit land to other people unknown to the villagers of Magulumatari which was the basis of the prayer, I am of the view that it was essential for joining the Village Council of Magulumatari, Chalinze District Council and the Attorney General as parties to the suit which is sufficient reason for prayer for withdrawal of the suit with leave to re - file a proper suit. From the foregoing analysis, I find that I am obliged to review my decision made on 24th September 2021 dismissing the application for failure by the applicants to demonstrate sufficient reason as to why they failed to join the intended parties when initially were afforded right to amend the pleadings 7 Consequently, I proceed to grant the prayer for withdraw of suit in Land Case No. 121 of 2018 with leave to re-file a proper suit subject to limitation. Additionally, I proceed to amend the drawn order by deleting the phrase "application to withdraw with leave to re-fi/e dismissed' and replace the same with the phrase "application allowed'. In the final analysis the application is partially allowed to the extent herein mentioned to the effect that, the 1st and 2nd grounds for review are merited while the 3rd, 4th, and 5th grounds are dismissed. There shall be no order as to costs. It is so ordered. Dated and Delivered at Dar Es Salaam, this 31st March, 2022. 8