Said Abdallah Doga vs Rose Fridoline Mwapinga and Another (Civil Revision No. 1 of 2020) [2023] TZCA 18059 (28 November 2023)

SAID ABDALLAH DOGA VS ROSE FRIDOLINE MWAPINGA & ANOTHER COURT OF APPEAL TANZANIA (CORAM: ISMAIL, J.A., MWANDAMBO, J.A., ISSA, J.A. ) CIVIL REVISION NO. 1 OF 202 0 (Revision from the proceedings and judgment of the High Court of Tanzania at Dar es Salaam dated 30th day of October, 2009 in PC. Civil Appeal No. 28 of 2002 ) Civil procedure – Revision – Appeal struck out for being time barred – Restoration without proper process – Relief awarded beyond pleadings – Right to be heard – Nullification of irregular judgment – Executability of lower tribunal's decision. This case centered on the regularity and propriety of proceedings leading to a High Court judgment that had declared the applicant owner of 250 acres of land. The appeal to the High Court (PC. Civil Appeal No. 28 of 2002) had initially been struck out for being out of time. Nonetheless, it was later entertained and determined by another judge, without any clear indication or record of restoration or re - institution of the matter according to proper legal procedures. Furthermore, the High Court awarded the ap plicant relief (ownership of 250 acres) far beyond what was pleaded or argued in the lower courts, infringing the principle that judicial relief must be confined to the claims pleaded. The respondents were not afforded an opportunity to be heard on this expanded relief, an omission found to contravene constitutional guarantees of the right to fair hearing. The Court had to decide on w hether the High Court was procedurally correct in entertaining and determining an appeal (PC. Civil Appeal No. 28 of 2002) after it had been struck out for being time barred. Further, the Court had to decide on w hether the judgment delivered by Shaidi, J., declaring the applicant owner of 250 acres, was regular, legal, and justifiable in terms of due process and the reliefs

pleaded . The Court also had to decide on w hether parties, especially the respondents, were afforded their constitutional right to be heard before a new and broader relief was awarded by the High Court. The Court of Appeal, exercising its revisional authority, quashed and set aside the irregular High Court judgment, holding that it was null and void. It declared that only the decision of the District Land and Housing Tribunal remains valid and executable. Held : (i) The Court of Appeal held that there was no evidence or record showing how the appeal previously struck out for being time barred was restored or re - instituted. The process by which it was heard and determined by Shaidi J. was procedurally irregular and wit hout legal foundation. (ii) The Court further found that Shaidi J.’s judgment awarded relief (declaration of ownership of 250 acres) not sought nor pleaded by the applicant, in violation of established legal principles and the parties' right to be heard as enshrined in Article 13(6) of the Constitution of Tanzania. (iii) The aggregate of these procedural and substantive missteps rendered the High Court judgment a nullity, necessitating intervention via revisional powers under section 4(3) of the Appellate Jurisdiction Act. The only valid and executable decision remaining was that of the District Land and Housing Tribunal (DLHT). The purported judgment of Shaidi, J. in PC. Civil Appeal No. 28 of 2002 wa s nullified, quashed, and set aside as a nullity. The order striking out the appeal on 20th April, 2005, was maintained . T he decision of the District Land and Housing Tribunal (DLHT) remain ed the only executable decision; parties may take steps to execute it. There was no order as to costs. Statutory / Constitutional Provisions referred to: (i) Section 4(3) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] (ii ) Article 13(6) of the Constitution of the United Republic of Tanzania, 1977

Case Law referred to: (i) James Funke Gwagilo v. Attorney General [2004] T.L.R. 161 (ii) Nkulabo v. Kibirige [1973] 1 E.A. 102 (East African Court of Appeal) (iii) Blay v. Pollard and Morris [1930] 1 KB 628 (iv) Independent Power Tanzania Limited v. Standard Chartered Bank (Hong Kong) Limited , Civil Revision No. 1 of 2009 [2009] TZCA 17 (TANZLII)