Esther Kayaya vs Ubani Manyambo (Civil Appeal No. 328 of 2019) [2024] TZCA 818 (23 August 2024)

IN THE COURT OF APPEAL OF TANZANIA ATTABORA ( CORAM: LILA, J.A.. FIKIRINI. 3.A.. And KENTE, J.A.1 CIVIL APPEAL NO. 328 OF 2019 ESTHER KAYAYA ....... ...... ........................... ..... APPELLANT VERSUS UBANI MANYAMBO ........... ........ ........... RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Tabora) (Rumanvika. J.T Dated the 15th day of October, 2013 in Land Revision No. 2 of 2012 JUDGMENT OF THE COURT 5tr t & . 23rd August 2024 KENTE, 3.A.: This appeal seeks to overturn the decision of the High Court of Tanzania sitting at Tabora, in Land Revision No. 2 of 2012 by which the High Court, suo motu, revised the judgment and decree of the District Land and Housing Tribunal for Shinyanga (hereinafter the DLHT), in Land Application No. 73 of 2010. The revised decision was in favour of Esther Kayaya the present appellant. The parties had since 2010 been in dispute over a piece of land known and described as Plot No; 152 Block "F" Nyasubi in Kahama District, each party claiming that the said piece of land, the particulars of which we shall have something to say in a moment, belonged to him or her. Accordingly, on 7th i

October, 2010 Ubani Manyambo the respondent herein, instituted a suit (Land Application No. 73 /2010) in the DLHT accusing the present appellant with trespass. The respondent prayed for, among other reliefs, a declaratory order that he was the lawful owner of the suit property. On 5th August, 2011, the DLHT delivered its judgment in favour of the appellant. Contrary to the present respondent's claim that the appellant had invaded and effected some developments on Plot No. 15.2 Block "F", the DLHT found and accordingly ruled that, the appellant had developed Plot No. 910 Block "U" which belonged to her. The discomfort with the decision of the DLHT, but being out of the prescribed period within which to appeal or apply for revision, compelled the respondent to move the High Court in Land Case Revision No. 2 of 2012 to seek a cocktail of orders, thus:- i) Art extension o f time within which to apply for revision o f the decision o f the DLHT in Land Application No. 73 o f 2010; ii) The application be allowed to produce additional evidence; Hi) The DLHT to receive evidence, that is, a letter o f offer; iv) The Land Office be compelled to go physically to the plots in despute and allocate (sic) accordingly. On being served with a chamber summons and the affidavit in support of the application, the appellant (who was the respondent) took a preliminary objection. Knowing that the respondent (by then the applicant), would probably

be required to explain why he did not seek to challenge the decision of the DLHT by way of appeal as it is the norm, the appellant jumped the gun, contending in the preliminary objection and submitted at some length that, as long as the decision of the DLHT was appeilable, the application for revision was not maintainable at law. She also contended that, the application before the High Court was incompetent for being supported by an affidavit which contained a defective jurat of attestation. After hearing the parties on the preliminary objection, the learned High Court Judge was persuaded and he accordingly held, in his ruling dated 11th October, 2013, that, indeed the application for revision was incompetent as there was no sufficient cause which made the applicant (now the respondent) to choose not to appeal. With regard to the second limb of the preliminary objection, the learned High Court Judge was equally satisfied that "the jurat of attestation and therefore the entire affidavit was incurably lacking" and that, this point alone was sufficient to make the application before him liable to be struck out. But then, at the tail end of the ruling on the preliminary objection, the High Court Judge changed the direction, leaving the entire business on the preliminary objection unfinished. Instead of striking out the application on account of being incompetent as is the norm, he went on suo motu determining the issue as to who between the parties herein was the lawful owner of the suit property. At

what seems to be a great sacrifice of the due process, the learned High Court Judge, single - handedly, reviewed the evidence before the DLHT and thereafter, he ultimately went on deciding thus:- "However, be it plot No. 152 "F"orplot No. 910 "U"(name it anything), the applicant is the lawful owner o f the plot physically in dispute. The decision o f the DLHT reserved entirely" As would be expected, the appellant was deeply discontented with the decision of the High Court hence this appeal which is predicated upon four grounds. However, the said grounds can be divided into two categories; one, that goes to challenging the Judge's evaluation of the evidence given by the parties before the DLHT, and the other, that goes to the procedure adopted by the Judge in dealing with the preliminary objection and deciding suo motu, the application for revision which was basically not yet to be filed. The first three grounds belong to the first category, while the fourth ground belongs to the second category. At the hearing of this appeal, whereas Mr. Kelvin Kayaga, learned advocate appeared to represent the appellant, the respondent was absent despite being duly served with a notice of hearing by way of substituted service through publication in the Nipashe and Mwananchi Newspapers both of 29th July, 2024. Given the circumstances, Mr. Kayaga successfully prayed in terms of Rule 105 (9)

of the Tanzania Court of Appeal Rules 2009 for the appeal to be heard in the absence of the respondent. Ahead of hearing the appeal on merit, we asked for Mr. Kayaga's comments on the timing or otherwise of the first point of the preliminary objection which was essentially as though the application before the High Court was specifically for revision of the decision by the DLHT. In this connection, it should be noted that, in the application before the High Court which in our view, was wrongly registered to as "Land Revision No. 2 of 2012" the respondent (who was then the applicant) had put in the forefront of his chamber summons that his prayer was for extension of time to file an application for revision. This particular intention of the respondent is reflected in paragraphs 6,7,8 and 9 of the affidavit which he swore in support of the application where he averred thus:- 6. That, after the decision I got attacked by a heart desease which was a result o f shock due to a past medical operation that I got back in 2003 at Nkinga Hospital in Igunga District 7. That, from there I had been attending medical clinic at Kahama since 05/01/2012 till J dAprilf 2012 due to that desease. 8. That, due to health problems I have been facing, the 60 (sixty) days o f revision application have expired. 9. That the expiry o f time to file this revision application was not intentional but it was due to illness as I have stated hereabove.

The point that we wish to drive home from the above facts which, as it turned out, was Mr. Kayaga's answer to our pertinent question is that, it was rather erroneous for the High Court Judge to go to the extent of deciding that the remedy of revision is not a substitute of an appeal while the application before him was basically for enlargement of time within which to file the application for revision. So, it was equally premature to argue, as the appellant did that revision was not a substitute of appeal, the argument for which unfortunately, the High Court Judge prematurely fell hook line and sinker. It must be very elementary that, a preliminary point of objection cannot be raised to challenge a matter which is yet to be filed in court. Given the circumstances, Mr. Kayaga who did not dispute the fact that his client was partly to blame for having brought about the confusion by raising the objection rather prematurely, implored us to invoke our revisional powers under section 4 (3) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws, nullify the proceedings of the High Court, quash and set aside its ruling and resultant orders and, in its place, remit the matter to the High Court with a directive that the preliminary objection should be heard and determined on merit. We have considered the impugned ruling of the High Court. In principle, we cannot fault the High Court Judge regarding the settled principle of the law that, except where the judicial process has blocked the right to appeal, revision

cannot be an alternative or a substitute to an appeal. However, we are disposed to think that, the above restatement of the law which came at the instance of the present appellant, was made both in the wrong place and at the wrong time. For, the application before the High Court Judge being for extension of time, was not the sort of applications which would have been decided the way it was. It was for the High Court Judge to determine, in the first place and in view of the preliminary objection raised regarding the defectiveness or otherwise of the initiating affidavit, if the application for extension of time was properly before the court and if the answer was in the affirmative, to proceed to hear and determine whether or not the respondent had furnished sufficient reasons to account for the delay to apply for revision of the decision of the DLHT. In essence, at that stage, that is what the High Court Judge could only decide. In our view therefore, the Judge strayed into a grave error when he left the preliminary objection undetermined and jumped into deciding the merits of the intended application for revision. As we have already indicated, for all purposes and intents, the procedure adopted by the learned High Court Judge was irregular and therefore, it cannot be allowed to stand. On the basis of the foregoing, we allow the appeal, nullify the proceedings, quash the ruling and set aside the orders of the High Court. We direct that, the High Court should continue to hear the preliminary objection in the light of the

attack launched on the affidavit sworn in support of the application for extension of time. Needless to say, depending on the outcome of the preliminary objection, the High Court should hear and conclude the proceeding according to law. Since the mix up leading to the present appeal was partly caused by the present appellant, and there was neither fault nor stratagem on the part of the respondent, we order for each party to bear their own costs. DATED at TABORA this 22n d day of August, 2024 The Judgment delivered this 23r d day of August, 2024 in presence of Mr. Kamaliza Kayaga, learned counsel for the appellant and Respondent absence is hereby certified as a true copy of the original. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL