Ansaar Muslim Youth Centre vs Ilella Village Council and Another (Civil Application No. 310/01 of 2021) [2022] TZCA 3049 (7 October 2022)

ANSAAR MUSLIM YOUTH CENTRE V. ILELA VILLAGE COUNCIL AND ANOTHER IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KWARIKO, KEREFU AND MAIGE, JJ. A) CIVIL APPLICATION NO. 310/01 OF 2021 Civil practice and procedure- review- parameters for review- the grounds for review of CAT decision are provided for under rule 66 (1) of the court rules. Civil practice and procedure- review of the CAT decision –error need to be apparent on the face of record- whether the applicant has demonstrated such error. The applicant brought an application for review under section 4(4) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 and Rule 66(1)(a) and (b) of the Tanzania Court of Appeal Rules, seeking to review the decision of the Court of Appeal in Civil Appeal No. 317 of 2019 delivered on 7 May 2021. The application was supported by an affidavit sworn by the applicant’s counsel, while the respondents filed no affidavit in reply. The applicant alleged that there were errors apparent on the face of the record which had resulted in a miscarriage of justice. The dispute originated in Land Application No. 15 of 2011 before the District Land and Housing Tribunal for Mbinga, where the applicant claimed ownership of a house on Plot No. 70757, Mbinga District, allegedly purchased through a public auction conducted in 2001 following execution of a decree against the first respondent. The applicant sought declaratory relief, vacant possession, a permanent injunction and damages. The first respondent opposed the claim on

the ground that the ex parte judgment upon which the auction was based had been nullified by the Resident Magistrate’s Court at Songea. The Tribunal upheld that contention, found that the auction sale had been nullified, held that the applicant had no cause of action and dismissed the application, but ordered the second respondent to refund the purchase price with interest. On appeal, the High Court allowed the applicant’s appeal. The first respondent thereafter appealed to the Court of Appeal, which held that the applicant lacked locus standi to institute proceedings before the District Land and Housing Tribunal and consequently declared the proceedings, judgments and orders of both the Tribunal and the High Court to be a nullity. Held: (i) The Court held that, for an application for review to succeed, an applicant must satisfy at least one of the conditions stipulated under Rule 66(1) of the Tanzania Court of Appeal Rules. It is only within the confines of that Rule that this Court may exercise its power of review. (ii) The Court further held that all the matters raised by the applicant in the present application had been fully considered and conclusively determined in the impugned decision. Consequently, the applicant’s dissatisfaction with the findings of the Court could not be equated to an error apparent on the face of the record so as to warrant a review. (iii) The Court also held that permitting the application would amount to

entertaining a disguised appeal, a practice which the Court has consistently discouraged, particularly in view of the need to bring litigation to an end. The Application was dismissed. Cases referred to: (i)Rizali Rajabu v. Republic, Criminal Application No. 4 of 2021 (unreported). (ii)Chandrakant Joshubhai Patel v. Republic (2004) T.L.R. 218. (iii) Isaya Linus Changula (As Administrator of the Estate of the late Linus Chengula) v. Frank Nyika (As Administrator of the Estate of the late Asher Nyika), Civil Application No. 487/13 of 2020 ( unreported ). (iv) East African Development Bank v. Blueline Enterprises Tanzania Limited, Civil Application No. 47 of 2010, (unreported). (v) Wambura Evarist & 6 Others v. Sadoki Dotto Magai and another, Civil Application No. 127 of 2011 (unreported). (vi)Jayantkumar Chandubhai Patel @Jeetu Patel & 3 Others v. The Attorney General & 2 Others, Civil Application No. 160 of 2016 (unreported). (vii) Tanganyika Land Agency Limited and 7Others v. Manohar Lai Aggrwal, Civil Application No. 17 of 2008 (unreported). (viii)Patrick Sanga v. Republic, Criminal Application No. 8 of 2011 (unreported). Mr. Alex Mashamba Balomi for Applicant. Mr. Rodgers Francis /Ms. Joyce Senkondo for 1 st Respondent.