Samueli Kobelo Muhulo vs National Housing Corporation (Civil Application No. 442/17 of 2018) [2022] TZCA 3115 (14 September 2022)

SAMUELI KOBELO MUHULO VS. NATIONAL HOUSING CORPORATION COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KOROSSO, KITUSI & MASHAKA JJ.A) CIVIL APPLICATION NO.442/17 OF 2018 (Application for revision from the decision of the High Court of Tanzania (Land Division) at Dar es Salaam in Land Revision 23 of 2012) Civil Procedure and Practice- Revision- Whether revision can be preferred in alternative to appeal? Civil Procedure and Practice- Appeal-whether an interlocutory decision is appealable? Civil Procedure and Practice – Interlocutory decision- criteria to determine an interlocutory decision? The dispute arose following the intervention of the High Court of Tanzania after the District Land and Housing Tribunal of Morogoro overruled a preliminary objection raised by the respondent challenging the Tribunal’s jurisdiction. Subsequent to the High Court’s administrative intervention, the applicant filed Land Revision No. 23 of 2012, which was struck out by Mansoor, J. Aggrieved by that order, the applicant approached the Court of Appeal by way of revision under section 4(3) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019] and Rules 65(1), (2), (3), and (4) of the Court of Appeal Rules, 2009.

Held: (i) The Court reaffirmed its established position that where a right of appeal exists, a party may not resort to revision as an alternative remedy unless it is demonstrated that the appellate process has been blocked by judicial process. In so holding, the Court reiterated the principles laid down in Halais Pro-Chemie v. Wella A. G., Moses Mwakibete v. The Editor, Uhuru, Shirika la Magazeti ya Chama and Another, Kezia Violet Mato v. National Bank of Commerce and 3 Others, and Chama cha Walimu Tanzania v. The Attorney General (both unreported). (ii) The Court further held that, under section 5(2)(d) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019], an interlocutory decision was not appealable. (iii) However, the Court clarified that an order which finally determined the matter before it, when assessed under the “nature of the order test,” was not interlocutory and was therefore appealable. In that regard, the Court referred to Murtaza Ally Mangungu v. The Returning Officer of Kilwa and Two Others (unreported). Application was granted and each party was ordered to bear their own costs. Statutory provision referred: (i) Appellate Jurisdiction Act, [ Cap 141 R.E 2019], Section 5(2)(d) Case laws referred to: (i) Halais Pro-Chemie v. Wella A. G. [1996] T.L. R. 269. (ii) Moses Mwakibete v. The Editor, Uhuru, Shirika la Magazeti ya Chama and Another [1995] T.L.R 134. (iii) Kezia Violet Mato v. National Bank of Commerce and 3 Others, Civil Application No. 127 of 2005 (unreported). (iv) Chama cha Walimu Tanzania v. The Attorney General, Civil Application No. 151 of 2008 (unreported).