Seif Abdalah Mapua (Administrator of the Estate of the late Adballah Seif) vs Rev. William Mathayo Mtenga (Civil Application No. 45/17 of 2023) [2024] TZCA 1298 (23 August 2024)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: SEHEL. J.A., MASOUD. 3.A. And MDEMU, J.A.^ CIVIL APPLICATION NO. 45/17 OF 2023 SEIF ABDALAH MAPUA (Administrator of the Estate of the late ADBALLAH SEIF)..........................................................APPLICANT VERSUS REV. WILLIAM MATHAYO MTENGA ................................. .....RESPONDENT (Application for Revision from the decision of the High Court of Tanzania, Land Division, at Dar es Salaam) fMaevekwa, J.) dated the 6th day of December, 2022 in Miscellaneous Land Application No. 642 of 2022 RULING OF THE COURT 19th & 23rd August, 2024. SEHEL, J.A.: The genesis of this application is the ruling of the High Court of Tanzania, Land Division, at Dar es Salaam (the High Court) which struck out the applicant's application without costs. From what we have gathered from the record of the application, the applicant who is the administrator of the estate of the late Abdalah Seif, filed to this Court an application for stay of execution of the decree of the High Court in Land Case No. 241 of 2013 vide Civil Application No. 341/17 of 2022 seeking for the ex-parte and
inter-partes orders for stay of execution. After hearing the ex-parte application, the Single Justice observed that there was no notice of appeal filed by the applicant, thus, he declined to grant it. Subsequent to the refusal order, the applicant moved the High Court through Miscellaneous Land Application No. 642 of 2022, the subject to the present application, seeking from the High Court not to issue any further orders for the execution of the decree of the High Court in Land Case No. 241 of 2013 pending determination of the inter-partes application for stay of execution which was pending before the Court. In its ruling, the High Court observed that execution proceedings were concluded by the High Court on 26th September, 2018. As such, the application was overtaken by events and it had no legs to stand on. It therefore held that the application was devoid of merit, superfluous and an abuse of the court process as there was no pending execution proceedings before it. At the end, it struck out the application without costs, hence, the present application was filed. It suffices to point out here that, the applicant also filed an application before this Court seeking for extension of time to lodge notice of appeal out of time and to appeal out of time vide Civil Application No. 565/17 of 2022.
The applicant is moving the Court, under section 4 (3) of the Appellate Jurisdiction Act (the AJA) and Rule 65 of the Tanzania Court of Appeal Rules (the Rules), to call for and examine the record of the proceedings before the High Court on grounds that: "/) The High Court as Executing Court has failed to exercise her jurisdiction under section 38 and Order XXI rule 27 o f the C ivil Procedure Code which empower the Executing Court to determ ine a ll questions arising in execution be it before or after execution o f the decree, n) There is illeg ality in the High Court decision in determ ining when the execution is com plete while the Decree Holder is s till in the Executing Court seeking orders fo r realization o f the decree and the application fo r those orders is pending in the same c o u rt" The application is supported by the affidavit of the applicant himself. On the other hand, the respondent did not file any affidavit in reply to counter the factual deposition made by the applicant in his affidavit. The applicant also filed written submissions in terms of rule 106 (1) of the Rules.
When the application was called on for hearing on 19th August, 2024, the applicant appeared in person, unrepresented, whereas, the respondent had the legal services of Mr. Alex Balomi, learned counsel. The applicant adopted his written submissions and had nothing to add. Basically, in his written submissions, the applicant faulted the findings of the High Court by arguing that the execution proceeding was yet to be concluded. Elaborating on his submission that the execution is not yet finalized, he contended that, there are multiple cases before the Court and the High Court concerning execution proceedings. He pointed out that there is a pending inter-partes application for stay of execution before the Court and a pending Execution Application No. 83 of 2016 before the High Court whereby the respondent is seeking vacant possession and eviction of the applicant from the suit property. It was his submission that since the respondent has not yet realized the fruits of the decree, the High Court erred in holding that there was no pending execution proceeding before it. He therefore urged the Court to grant his application with costs. Responding to the application, Mr. Balomi submitted that the application contravened the provisions of section 5 (1) of the AJA as the applicant had a right to appeal against the decision of the High which refused to grant the prayer sought on account that it was overtaken by
events. He further argued that, since the applicant has not shown any special circumstance for the Court to invoke its revisional jurisdiction, the application is misconceived before the Court. With that submission, he beseeched the Court to strike out the application with costs. The applicant rejoined that he tried to appeal but faced some obstacles, hence, he decided to file the present application. On our part, having heard the competing arguments from the parties and considered the application before us, we think, we should first appreciate the position of the law guiding revisional powers of the Court. The Court's power of revision at the instance of any party is vested by section 4 (3) of the AJA which stipulates that: "W ithout prejudice to subsection (2), the Court o f Appeal sh all have the power, authority and jurisdiction to ca ll for and examine the record o f any proceedings before the High Court for the purpose o f satisfying its e lf as to the correctness, legality 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." From the above provision of the law, the Court has jurisdiction to call for and examine the proceedings of the High Court for the purpose of 5
satisfying itself as to its correctness, legality or propriety of any finding or order made therefrom. In the case of Moses Mwakibete v. The Editor Uhuru, Shirika la Magazeti ya Chama & Another [1995] T.L.R. 134 this Court explained the circumstances under which a party may apply for revision under subsection (3) of section 4 of the AJA that: "The Court o f Appeal can be moved to use its revisionaljurisdiction under s. 2 (3) o f the Appellate Jurisdiction 1979 [now section 4 (3) o f the AJA] only where there is no right o f appeal, or where the right o f appeal is there but has been blocked by ju d icia l process, and lastly , where the rig h t o f appeal existed but was not taken; good and sufficient reasons are given for not having lodged an appeal." In addition, in the case of Transport Equipment Ltd v. Devram P. Valambhia [1995] T.L.R. 161 the Court categorically emphasized that: "The appellate jurisdiction and the revisional jurisdiction o f the Court o f Appeal o f Tanzania are, in m ost cases, m utually exclusive; if there is a right o f appeal then that right has to be pursued and, except for sufficient reason am ounting to 6
exceptional circum stances, there cannot be resort to the revisionaijurisdiction o f the Court o f Appeal." Having stated the position of the law, now we come back to the matter at hand. The applicant filed the present application after being dissatisfied with the decision of the High Court which declined his prayer to refrain from making any further order in respect of the execution proceedings. Given that the applicant was a party in the High Court proceedings and has not shown that he had no right of appeal, or that right was blocked by judicial process, we are satisfied he has failed to disclose exceptional circumstances warranting the Court to invoke its revisionai jurisdiction. In our respectful opinion, the applicant ought to have preferred an appeal to this Court instead of the instant application for revision which is improper. Besides, as rightly argued by Mr. Balomi, we are satisfied that the present application was an abuse of the court process. We say so because the applicant has stated clearly in his affidavit that there is a pending application before this Court for an extension of time to lodge a notice of appeal. Even though, we take judicial notice that the said application was dismissed for want of merit on 21st November, 2023 but we reiterate that the two remedies, that is, appeal and revisionai powers, are different and should not be invoked in place or in substitution of the other. That said and
done, we are satisfied that the applicant should not have invoked the revisional jurisdiction of the Court. He ought to have appealed in terms of section 5 (1) of the AJA. In the end, we find that the application before us is incompetent and we proceed to strike it out with costs. DATED at DARE ES SALAAM this 22n d day of August, 2024. B. M. A. SEHEL JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Ruling delivered this 23rd day of August, 2024 in the presence of the applicant appeared in person, unrepresented and Alex Balomi, learned counsel for the respondent, is hereby certified as a true copy of the original.
H«i )S!j k;i W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL