Zawadi Samson Mayaya Another vs Masabi Chogabhuki 3 Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPLICATION NO. 16166 OF 2024 (Arising from Consolidated Land Appeal No. 36 & 39 of 2023 of the High Court of the United Republic of Tanzania at Sumbawanga) ZAWADI SAMASON MAYAYA………………………………………1ST APPLICANT CONSOLATA LUCAS NZUNDA……………………………………..2ND APPLICANT VERSUS MASABI CHOGABHUKI..…..……………………………………... 1ST RESPONDENT TIHUMBI MLEKWA ……………………………………………..… 2ND RESPONDENT HERBAGI SINGAMAGAZI …………………………………………3RD RESPONDENT MAYUNJIWA CHOGABHUKI ……………………………..………4TH RESPONDENT JUDGMENT MWENEMPAZI, J. This is an application for review which is made under Order XLII Rule I of the Civil Procedure Code [CAP.33 R.E. 2019], in which the applicants herein were aggrieved by the order of this court in Consolidated Land Appeal No. 36 & 39 of 2023 which was made on the 06th day of June, 2024 whereas it stated that one SAID LUPONYA to be added as one of the respondents in the LAND APPLICATION No. 13 0f 2022 of the District Land and Housing Tribunal of Mlele at Inyonga which was to be heard de novo before another competent chairperson. Unfortunately, the 1 said SAID LUPONYA is said to have passed away and he is purported to be the seller of the disputed land. When the matter came for hearing, the applicants enjoyed the services of Mr. Kifunda the learned Advocate while the respondents had no legal representation. However, it was Mr. Kifunda’s prayers that this matter be sorted out by way of written submissions in which the respondents did not object and so this court granted the prayer by the learned counsel for the applicants. In his written submission, Mr. Kifunda briefly submitted that the facts of this case are that sometimes in 2022 the Applicants instituted a suit in the District Land and Housing Tribunal for Mlele against the Respondents claiming a piece of Land, and they won the case. That, the Respondents appealed to the High court vide Land Appeal No. 36 of 2023, and on the 06th June 2024 this court nullified proceedings of the District Land and Housing Tribunal for Mlele, quashed the Judgment and set a side its decree. It further ordered that, one Said Luponya be added as a necessary Party and the case be heard de novo before another Chairman competent to hear and determine the matter. 2 He added that, on the 28th of June 2024, the Applicants filed the present Memorandum for review, on the ground that, Said Luponya has passed away. According to him, the ordered person to be joined as a necessary party Said Luponya, died before institution of the suit at the District Land and Housing Tribunal of Inyonga. So, there is no way could he be sued. That, it is the applicants’ circumstances which have prompted this memorandum for review. Lastly, Mr. Kifunda submitted that, his side prays that the judgment, decree and orders made on the 6th June 2024 be reviewed, and should this application be granted, he prayed for this court to proceed determining the 4th, 5th and 6th grounds of appeal which had not been determined, to dispose of the appeal. Meanwhile, the respondents briefly and jointly replied that tis court’s order is not ineffective as suggested by the applicants, as this is a new issue to be introduced by the applicants while they had the chance to do so when the matter was at the trial stage in Land Application No. 13 of 2022 and during hearing of this Consolidated Appeal No. 36 & 39 of 2023 in this Court, and therefore this application deserves to be dismissed with costs. 3 From these contending arguments, the issue for determination is one, whether this application has merits before this court. As rightly cited by the counsel for the applicants, that under Order XLII Rule 1 (1) of the Civil Procedure Code [Cap 33 R.E 2019], this court has inherent jurisdiction to review its own decision as it was held in the case of Adamson Mkondya vs Awadhi Komba, Misc. Land Application No.521/2018 HC - DSM, that; "The court has inherent jurisdiction to review its decisions and it will do so in any of the following circumstances to wit, where these is manifest error on the record which resulted in Mis carriage of Justice, or where the decision was attained by fraud, or where a party was wrongly deprived of the opportunity to be heard.” In reviewing the decision this court made, it is true that the proceedings, judgment and the decree thereto in the main case (LAND APPLICATION No. 13 of 2022 of the District Land and Housing Tribunal of Mlele) were nullified, quashed and set aside respectively by this court, with the order that the same should be tried de novo before a different chairperson with competent jurisdiction and that, a person known as Said Luponya be added as one of the respondents in the said suit. 4 This application has that, the applicants are complaining over the order of starting their suit afresh with an order that they should add the said Said Luponya as one of the respondents whilst he has passed away. To my understanding, this is too absurd to even consider filing an application for review. I should point out that, in the Consolidated Land Appeal No. 36 & 39 of 2023, among the prayers of the appellants was to quash the decision of the trial tribunal and set aside the decree thereto in which this court did exactly that. However, an order of adding Said Luponya as one of respondents was for the interest of justice as it turned out that during the analysis of the evidence, Said Luponya seemed to be an important party to be joined within the suit. I should make it clear that it was not and still it is not this court’s interest to know whether Said Luponya is alive or dead, and this is because all the learned counsels understand the procedures required to sue a dead person, and therefore it should not be a ground worth praying for a review. In such circumstances, the Law of Succession Act provides for the administration of estates of deceased persons. The administrator or the executor appointed by the court is responsible for managing the estate, including defending or pursuing legal claims on behalf of the deceased person. Therefore, instead of applying for a review, it was expected of the 5 applicants to follow the proper procedures of suing the person appointed to administer the estate of Said Luponya. In this circumstance, the administrator of the deceased’s estate is the proper party to represent the deceased in legal proceedings, and in that, the applicants should have not wasted their time filing this application. Based on the above findings, I hereby review the order made by this court in the Consolidated Land Appeal No. 36 & 39 of 2023 to be an effective order contrary to the ground filed in this application by the applicants. Since this matter was assigned to me to review an order made by this very court, I hereby declare the said order is has no errors worthy of reviewing. Thus, this application has no merit before this court, and it is hereby dismissed with costs. It is ordered accordingly. Dated and signed at Sumbawanga this 07th day of March 2025. T. M. MWENEMPAZI JUDGE 6