Martha John Nchangwa vs Willybroad Mwenyunge Revelian @ Mutole & Another (Civil Application No. 916/17 of 2023) [2025] TZCA 1008 (25 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL. J.A., MGONYA, J.A. And FELESHI, 3.A.) CIVIL APPLICATION NO. 916/17 OF 2023 MARTHA JOHN NCHANGWA ....... . ......................... . ............. . APPLICANT VERSUS WILLYBROAD MWENYUNGE REVELIAN @ MUTOLE .......... 1 st RESPONDENT LIPINA REBECCA MAKWINYA (As Administratix of the Estate of the Late Gervas Faustin Makwinya) .................... 2nd RESPONDENT (Application for Revision of the Proceedings, Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) (KitusLJ.) dated the 2n d day of May, 2018 in Land Case No. 82 of 2017 RULING OF THE COURT 30th June & 25th September, 2025 MGONYA, J.A.: The genesis of the instant application is the Land Case No. 82 of 2017 (the suit) which was filed at the High Court of Tanzania, Dar es Salaam District Registry on 10th April, 2017. The applicant is now seeking this Court to call and examine the record of said suit's proceedings, Judgment and Decree dated 24th May, 2018 (Hon. Kitusi, J. as he then i

was); for the purpose of satisfying itself as to the correctness, legality and propriety of the findings thereof. The facts giving rise to the instant application are at large not in dispute between the parties. That the applicant and the 1s t respondent were the husband and wife. During their marriage, the couple acquired Plot No. 94 Block "C" Boko Area, within Kinondoni Municipality in Dar es Salaam City, (herein to be referred to as the suit land). After sometime, the couple built their house on the suit land and moved in. Few months later, the 1s t respondent quietly left the house with all documents relating to the acquisition of the land together with his personal belongings, deserting the family behind without any clue of his whereabouts. That, after sometime, the 1s t respondent sent a group of people to evict the applicant from the suit land, the excise which failed. After the 1s t respondent's disappearance, the applicant is said to have experienced a lot of harassments and embarrassment from him. As a result, she decided to institute a Matrimonial Cause No. 138 of 2018 before Kinondoni District Court petitioning for divorce, custody of children and distribution of matrimonial assets. In the course of the said petition, it came to the knowledge of the applicant that, the 1s t respondent had

also instituted a Divorce Petition No. 6 of 2017 against her before llaia Primary Court and obtained an ex-parte Judgment and Order of divorce dated 13th March, 2017. Furthermore, the applicant learnt that, their matrimonial house situated on Plot No. 94 above, was precluded from the list of matrimonial assets. Upon the applicant's further investigation on the suit plot, she learnt that, the 1s t respondent and one Gervas Faustin Makwinya had on the 13th March, 2014 signed a building Supervisory Agreement titled "Mkataba wa Kusimamia Ujenzi". That, out of frustration of the said Agreement, Gervas Faustin Makwinya, decided to institute the Land Case No. 82 of 2017 at the High Court of Tanzania, Dar es Salaam District Registry, as plaintiff against Willybroad Mweyunge Revelian, the 1s t respondent. In that suit, the plaintiff prayed for several orders. Among them, a declaratory order that the 1s t respondent was in breach of the building supervisory contract. However, the said case ended by Settlement between the parties. One of the crucial points in the Deed of Settlement is that, the 1s t respondent had to provide Mr. Gervas Faustin Makwinya the vacant possession to the suit property. Following the court decree which emanated from the Deed of Settlement, the applicant was pressed to give vacant possession of the

house. Since she was not a party to the said suit, she decided to institute the instant application, praying the Court to examine the record of Land Case No. 82 of 2017 as well as the Deed of Settlement and a Decree emanated thereto, of which she prays this Court to nullify as she was denied a right to be heard. As the person who purported to be the real owner of the suit property in the said case is now a deceased, one Lipina Rebecca Makwinya, the deceased's widow was appointed Administratrix of the estate of the Late Gervas Faustin Makwinya. Following the prayer made to this Court by Mr. Sindilo Lyimo, learned advocate, she was joined in this application as the 2n d respondent in place of the deceased. At the hearing of the application, the applicant was represented by Mr. Tibiita Muganga, learned counsel, whereas Mr. Sindilo Lyimo also learned counsel, appeared for the 2n d respondent. The 1s t respondent did not enter appearance despite of being duly served through publication in Mwananchi Newspaper dated 24th June, 2025. After the Court had satisfied itself on his service in terms of rule 63 (2) of the Tanzania Court of Appeaf Rules, 2009 (the Rules), we ordered the hearing of the application to proceeded in absence of the 1s t respondent.

In compliance to rule 106 (1) of the Rules, Mr. Muganga filed the applicant's written submission in support of the application. However, the 2n d respondent opted not to file any written submission in reply to the applicant's submission. In his written submission, the applicant's counsel insisted that the plaintiff in Land Case No. 82/2017 was a person with no legal status to institute the case as he was a deceased since 28th January, 2012, six years before the institution of the said case. He said, that alone renders the whole proceedings of the case a nullity. The learned counsel submitted further that, the fact that the Plaintiff in Land Case No. 82 of 2017 is a deceased, was confirmed by the 2n d respondent who is the widow to Mr. Makwinya and the administratrix of his estate. He further submitted that, during the entire proceedings, the applicant who jointly acquired the property with the 1s t respondent was not made a party. In conclusion, the applicant's counsel prayed to the Court to nullify the entire proceedings, Deed of Settlement and the Decree thereto in respect of the Land Case No. 82 of 2017 before the High Court. Responding to the applicant's submission, Mr. Lyimo informed the Court that, the 2n d respondent is not objecting the application. The learned

counsel further submitted that, the late Makwinya died on 28/1/2012 and the 2n d respondent was appointed as an Administratix on 25/5/2012, way back even before the institution of the case at issue in 2017. Giving the reason to his client's stance, the learned counsel informed the Court that, the 2n d respondent is also a victim of the circumstances of the case at hand. He contended that, the 1s t respondent is not known to the 2n d respondent and that, out of the circumstances of this case, she considers him to be a conman. Finally, the learned counsel prayed the Court that the costs in respect of the instant application be directed to the 1s t respondent as he was the one who initiated the proceedings and fraudulently involved Gervas Makwinya in Land Case before the High Court. Having heard the counsel for the parties, the crucial issue for our determination is whether the application has merit. It is common knowledge that, under section 4(2) and (3) of the Appellate Jurisdiction Act, Cap. 141 (AJA), this Court is vested with powers of revision. Elaborating on the applicability of the above section, the Court in Patrick Magologozi Mongella v. The Board of Trustees of The 6

Public Service Social Security Fund (Civil Application No. 342 of 2019) [2022] TZCA 216, stated that: "... the Court's revisionaf authority thereunder is for the purpose of satisfying itself as to the correctness, iegaiity or propriety o f any finding, order or any other decision made thereon and as to the regularity o f any proceedings o f the High Court." It is also settled position that, revisional jurisdiction can be exercised in appropriate circumstances, Among those circumstances is when the applicant has no right to appeal or where the right of appeal is there but has been blocked by judicial process. See; Moses J. Mwakibete v. The Editor - Uhuru, Shirika la Magazeti ya Chama and National Printing Co. Ltd. (1995) TLR 134. As we indicated earlier, the applicant herein was not a party to the Land Case No. 82 of 2017, therefore she has no right to appeal. The only way she can challenge the High Court decision is by filing an application for revision as she did. See - Baghayo Gwandu v. Michael Ginyau, Civil Application No. 568/17 of 2017 [2018] TZCA 296, Halais Pro- chemie v. Wella A.G (1996) TLR 269 and Dorice Keneth Lwakatare

v. Nurdin Abdallah Mushi & Others (Civil Application No. 403/17 of 2021) [2023] TZCA 17608. Among the grounds for revision stated by the applicant is that, she was a spouse of the 1s t respondent and occupier of the suit property which is the only means of providing shelter to the family. However, she was not involved in the court proceedings in Land Case No. 82 of 2017. Such hearing, settlement or any execution process in that respect is prejudicial to her as she was not afforded a right to be heard. On our part, we agree with the applicant's concern as it is trite law that, any decision affecting the rights or interests of any person arrived at without hearing the affected party, is a nullity. See for instance the case of John Morris Mpaki v. The NBC Ltd. 8 * . Ngalagila Ngonyani, Civil Appeal No. 95 of 2013 (unreported) which was referred in the case of Elizabeth Mpoki & Others v. Maf Europe Dodoma (Civil Application No. 436 of 2016) [2020] TZCA 379. See also Ahmed Ally Salum v. Ritha Baswali & Another, Civil Application No. 21 of 1999 (unreported) and Attorney General v. Raksha Gadhvi & Others (Civil Application No. 147/01 of 2022) [2024] TZCA 10. In the fater, it was observed that:

"The right to be heard is a fundamental principle o f natural justice which should always be observed, a party's right to be heard be guaranteed." Being guided by the above positions of law regarding a right to be heard, and under the circumstances where the applicant was denied her right to be heard in the proceedings regarding the suit property of which she has interest on it, undoubtedly, the outcome of the decree to the Land Case No. 82 of 2017 of handing over the suit property to the 2n d respondent, was unfair to the applicant as it affected her rights. In the event therefore, we are satisfied that indeed, the trial court proceedings in the absence of the applicant were null and void as the same were tainted with material legal irregularity which marred the entire proceedings. Ordinarily, we would remit the file to the High Court for retrial after joining the applicant. However, given the peculiar circumstances of this matter where the 2n d respondent also acknowledged that she was the victim of the circumstances, we refrain to make such an order. In the end, we allow the application and proceed to declare the proceedings in respect of Land Case No. 82 of 2017, nullity and void ab 9

initio . Further, we proceed to quash and set aside the Decree of the trial court. Under the circumstances, we make no order as to costs. Order accordingly. DATED at DODOMA this 23r d day of September, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Ruling delivered this 25th day of September, 2025 in the presence of Mr. Tibiita Muganga, learned counsel for the applicant, in the absence of the respondents via virtual Court and Regina Komba, Court Clerk; is hereby certified as a true copy of the original. 10