Kundi Ngoyeji Masoud vs Juma Chenya & Others (Civil Application No. 519/14 of 2024) [2024] TZCA 996 (26 October 2024)

AT SHINYANGA fCORAM: JUMA. CJ. MWANDAMBO, 3.A. And KHAMIS, J.A.^ CIVIL APPLICATION NO. 519/14 OF 2024 KUNDI NGOYEJI MASOUD APPLICANT VERSUS TUN DU NDIGITYA. ROBERT CHARLES JUMA CHENYA ................ JIGALU EDW ARD .......... MANG'ARIDA MAZEZELE .1 st RESPONDENT 2 nd RESPONDENT 3 rd RESPONDENT ,4 th RESPONDENT 5 th RESPONDENT (Application from the decision of the Resident Magistrates' Court of Shinyanga at Shinyanga - Extended Jurisdiction in 22n d& 28th October, 2024 MWANDAMBO, J.A.: At stake before this Court is a decision of the Resident Magistrates' Court of Shinyanga with extended Jurisdiction (the first appellate court) in Land Appeal No. 06 of 2023 made on 7 February 2024. By that decision, the first appellate court dismissed an appeal by one Hamis Ngoyeji Masoud from the decision of the District Land and Housing Tribunal (the DLHT) for Land Appeal No. 06 of 2023 (NcTumbu, RM- Ext. Jurisdiction^ dated the 7th day of February 2024 in Land Application No. 26 of 2020 RULING OF THE COURT

Shinyanga which dismissed his application premised on a dispute over ownership of a parcel of land. The facts in this application are largely not in dispute. They have their genesis from the death of Ngoyeji Masoud Ngoyeji who died intestate leaving behind several properties allegedly including 70 acres of land situates at Lohumbo A hamlet, in Mwadui Lohumbo village, Mwadui Lohumbo ward, Kishapu District in Shinyanga Region (the disputed shamba). The applicant is one of the issues of the late Masoud Ngoyeji Masoud and hence a lawful heir of his estate. After the death of Masoud Ngoyeji Masoud, one Hamis Ngoyeji Masoud applied for and was granted letters of administration over the deceased's estate. Prior to the grant of the letters of administration, the first respondent had objected to the inclusion of the disputed shamba in the estate claiming that it did not belong to the deceased but to one Wile Ngelya; his grandmother. Having heard evidence from the objector and the administrator, the Primary Court sustained the objection and granted the letters of administration to Hamis Ngoyeji Masoud to administer the deceased's estate excluding the disputed shamba. The Administrator's appeal to the District Court of Kishapu was barren of fruit. Subsequently, the Administrator preferred an application before the DLHT claiming ownership of the disputed land. The DLHT dismissed that application. Dissatisfied, the 2

Administrator appealed to the High Court but his appeal was transferred and determined by a Magistrate with extended jurisdiction who dismissed it for lack of merit. Although the Administrator had a right of further appeal, he did not prefer any appeal to this Court. Instead, the applicant who was not a party to the proceedings which have given rise to the impugned decision moved the Court under section 4 (3) of the Appellate Jurisdiction Act (the AJA) to revise the judgment and decree of the first appellate court for the purpose of doing justice. The applicant raised seven grounds in the notice of motion largely in the form of chronology of events leading to the lodging of the application. Ground six run as follows: "That the High Court illeg ally failed to n u llify the proceedings and judgm ent o f land courts, and direct the appellant to file his appeal in the High Court against the judgm ent o f the D istrict Court o f Kishapu in Probate Appeal No. 1/2017 despite dear fact that the proceedings and judgm ent o f the land court clearly showed that the applicant had an estate adm inistration case No. 23/2016 at Mwadui Prim ary court, and thereafter he appealed to the D istrict court o f Kishapu in Probate appeal No. 1/2017, which wrongly observed that any dispute concerning land m atter m ust be solved by the land Tribunal, notwithstanding the position that the

facts o f the case a t the Prim ary court shows that it was an estate adm inistration case." The founding affidavit supporting the application provides a narrative of what transpired in the first appellate court and averments elaborating his grievances based on the grounds set out in the notice of motion. All respondents filed their affidavits in reply resisting the application. At the hearing of the application, the applicant appeared in person unrepresented. So did the respondents. Being a lay person, the applicant had very little appreciation of the grounds in support of the application. Instead of amplifying on the grounds in the notice of motion, she focused on complaining that, as a lawful heir of her late father; Ngoyeji Masoud Ngoyeji, she was denied her share of inheritance from the shamba lawfully owned by the deceased. She was insistent that, Wile Ngelya from whom the first respondent claimed interest died many years ago after the deceased had been given it by a Mwanangwa) a local chief in that area. When it was put to her that she testified as one of the witnesses for the Administrator before the Primary Court at Mwadui and the DLHT concerning a dispute over the same shamba, the applicant admitted as such. She too admitted that after the decision of the first appellate court, she asked the Administrator to appeal against the impugned decision but refused doing so, hence her resort to an application for revision to pursue

her right in the shamba. All in all, the applicant beseeched the Court to determine the application on the basis of the grounds set out in the notice of motion and the averments in her affidavit. In his reply, the first respondent resisted the application and contended that the applicant has never been a party to the proceedings giving rise to the application. If we understood correctly, the first respondent meant to say in effect that, the applicant had no right to institute the application rather, the Administrator. The second, third, fourth and fifth respondents had very little in reply. They all feigned ignorance about the dispute to the shamba as they were merely purchasers of their respective pieces of land from the heirs of the original owner; the late Wile Ngelya. Upon our examination of the notice of motion and the founding affidavit and upon hearing the applicant and the respondents, we take the view that, the determination of the application turns out on the issue whether the applicant has met the threshold test in moving the Court to exercise its revisional power vested in it by section 4(3) of the AJA. We shall begin our determination with a statement that the revisional power is not open ended. It is exercisable upon the applicant meeting the conditions set out under the section. First and foremost, it must be shown

that the application relates to the legality, propriety of any finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court. Secondly, revision is not an alternative to an appeal from a decision of the High Court it being trite that the two are mutually exclusive. In other words, a litigant who has right of appeal cannot seek revision as an alternative to an appeal. It is long settled that revision is only available to a litigant in fitting circumstances for, unlike appeals, there is no statutory right to apply for revision it being a discretionary remedy. There is no dearth of authorities on the above, amongst others, the Court's decision in Moses J. Mwakibete v. The Editor Uhuru, Shirika la Magazeti ya Chama and Another [1995] T.L.R 134 reiterated in many other decisions including, Hallais Pro- Chemie v. Wella A.G. [1996] T.L.R. 269. All the same, it has been held by the Court in many of its previous decisions that, a third party to the proceedings before the High Court is not completely precluded from invoking the Court's power of revision if he can show that the decision, subject of revision has the effect of affecting his interest since, that person has no right of appeal. For instance, in Halima Hassan Marealle v. Parastatal Sector Reform Commission and Another, Civil Application No. 84 of 1999 (unreported), the Court stated:

"...It is apparent that the provision o f this subsection seeks to ensure that this Court has the pow er to rectify any errors, illegalities or im propriety in decisions or proceedings o f the High Court which come, or are brought to its attention. Thus, the Court may be moved in revision by a third party who say, has an interest in the m atter..." See also: Arcopar (O. M.) S. A. v. Harbert Marwa and Family Investments Co. Ltd & 3 Others, Civil Application No. 94 of 2013 (unreported). In its recent decision in Maleckezedeck John Mallya v. Miriam John Mallya and 4 Others [2024] TZCA 939 TANZLII, the Court referred to the decision of the High Court (Samatta, JK- as he then was) in Lujuna Shubi Ballonzi, Senior v. Registered Trustees of Chama cha Mapinduzi [1996] T.L.R. 203 in relation to locus standi where the court stated: "...In this country, locus standi is governed by common law. According to that law, in order to m aintain proceedings successfully, a p la in tiff or an applicant m ust show not only that the court has pow er to determ ine the issue but also that he is entitled to bring the m atter before the court... Courts do not have power to determ ine issues o f general interest... They can only accord protection

to interests which are regarded as being entitled to legal recognition. ... a litigant m ust assert interference with or deprivation of, or threat o f interference with or deprivation o f a right or interest which the law takes cognizance of. Since court w ill protect only enforceable interests, nebulous or shadow interests do not suffice for the purpose o f suing or making an application..." (at page 208.] That decision has been quoted with approval in various decisions of the Court amongst others, Madam Mary Sylvanus Qorro vs Edith Donath Kweka [2019] T.L.R. 434, Elieza Zacharia Mtemi & Others vs Attorney General & Others [2021] TZCA 34 TANZLII and Maleckezedeck John Mallya v. Miriam John Mallya and 4 Others (supra). The position in the instant application gleaned from the grounds in the notice of motion and the affidavit is that, all the applicant seeks through her application is what she refers to as justice by way of a share from the piece of land allegedly left behind by her late father. However, as the record of revision will bear testimony, the Primary Court of Mwadui in Mirathi No. 23 of 2016 excluded that piece of land from the estate of the deceased upon being satisfied with the evidence that it did not belong to the deceased.

It is glaring that the applicant testified in that matter in support of the Administrator of the deceased's estate who later on appealed to the District Court of Kishapu in Probate Appeal No. 1 of 2017. That appeal was dismissed by the District Court which advised the appellant to pursue the matter concerning ownership before the District Land and Housing Tribunal. It is equally common ground that the Administrator instituted Land Application No. 26 of 2020 before the DLHT at Shinyanga. Again, the applicant testified as a witness for the Administrator but the DLHT found his case unproven and dismissed it. So was his appeal before the first appellate court from which no appeal has been preferred to the Court by the Administrator. According to the applicant, the Administrator has shown no interest in preferring an appeal hence her resort to the application for revision. The first respondent challenged the applicant's move taken by a stranger to the proceedings before the lower courts and thus not entitled to file the application. We agree with him. The facts in this application raise an issue somewhat similar to the issue the Court was confronted with in Maleckezedeck John Maliya. That decision involved an application for revision instituted by one of the children of the deceased claiming to be a beneficiary in a will left by her late father. Following a petition for the grant of probate to a person named as one of the executors of the will and his appointment as such, some of

the deceased's children petitioned for the revocation of the appointment on account of several irregularities, in particular, publication of the citation. Satisfied of the existence of irregularities in the publication, the High Court revoked the appointment of the executor and ordered filing of a fresh petition by an interested party within a specified period. The executor whose appointment had been revoked did not challenge the revocation. Instead, he filed a fresh petition for the grant of probate. An objection was taken challenging the competence of the application taken by a stranger who had not shown any interest in the application and how such interest had been prejudiced by the order revoking the grant of probate to the executor. Sustaining the objection, the Court stated: "Neither in the notice o f motion nor in the affidavit has the applicant shown how his interest in the deceased's w iii has been deprived irrespective o f the order o f the High Court revoking the grant o f the probate made by that court earlier on. In our view, the grounds in the notice o f motion appear to be largely in the form o f com plaints by an aggrieved party to a decision on appeal and not in an application for revision by a third party to the im pugned decision. Having so stated, the Court concluded that, the applicant had not met the threshold test of maintaining an application for revision for lack of

locus standi. In consequence, it held that the application was incompetent and liable to be struck out. The position in the instant application is no better. The applicant is simply one of the issues of deceased whose interest in the estate are being taken care of by the Administrator. Apparently, there is no dispute over the distribution of the estate by the Administrator. All that the applicant requires is for a share from the shamba which the Primary Court declared as not part of the estate of the deceased. As shown above, the applicant was aggrieved by the 1st appellate court's decision allegedly for not nullifying the DLHT's decision as well as the Primary Court on the ownership of the shamba from which no appeal has been preferred by the Administrator. As we held in Malecsedeck John Mallya, the fact that the applicant is a beneficiary of the estate of her deceased father does not entitle her to take up proceeding by way of revision in the manner she did. That right vested in the Administrator of the estate by way of an appeal. It is not hard to conclude that, for all intents and purposes, the application is, but a disguised appeal by a stranger to the proceedings from which the impugned decision has emanated. At any rate, and by no means the basis of our decision, the applicant omitted to join the Administrator in her quest

for justice as she put it. That would render the application incompetent any way. On the whole, since the applicant lacks locus standi, the application before the Court is incompetent and is hereby struck out. As the issue on which the application has been disposed of was raised by the Court itself before being echoed by the first respondent, we think it will be fair that each party bears his own costs. Order accordingly. DATED at SHINYANGA this 25th day of October, 2024. The Ruling delivered this 28th day of October, 2024 in the presence of the Applicant and Respondents in persons, unrepresented is hereby I. H. JUMA CHIEF JUSTICE L. J. S. MWANDAMBO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL cei copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL