Rafikihawa Mohamed Sadik vs Ahmed Mabrouk and Others (Civil Application No. 250/01 of 2019) [2023] TZCA 18030 (20 October 2023)

RAFIKIHAWA MOHAMED SADIK VS AHMED MABROUK & OTHERS COURT OF APPEAL TANZANIA ( CORAM: MGONYA, J.A., KOROSSO, J.A., RUMANYIKA, J.A.) CIVIL APPLICATION NO. 250/01 OF 2019 ( Application for Revision of the Ruling and Drawn Order of the High Court of Tanzania, Dar es Salaam, District Registry at Dar es Salaam dated the 14th day of July, 20 1 5 in Civil Case No. 95 of 1994 ) Civil procedure - Revisional jurisdiction v. Appellate jurisdiction - Striking out of suit amounts to rejection of plaint, considered a decree, thus appealable. The Court of Appeal of Tanzania reviewed a request for revision of the High Court's decision to strike out a civil suit related to land ownership. The applicant sought revision instead of appealing, arguing special circumstances, including alleged procedur al barriers and wrongful advice from previous counsel, justified this route. The court had to decide whether the application for revision against an order of the High Court is tenable; whether there exist special circumstances to warrant the invocation of the Court's revisional jurisdiction; and whether striking out of the suit amo unts to a rejection of the plaint, thus forming a decree subject to appeal. However, the Court emphasized that the striking out of a suit is equivalent to a rejection of the plaint, thereby constituting a decree which is appealable. The Court further noted that there were no exceptional circumstances blocking the appellate process , thus dismissing the request for revision as misconceived. The preliminary objection raised by respondents, asserting that an appeal was the appropriate legal remedy, was upheld.

H eld: (i) The Court held that the application for revision was misconceived because the striking out of a suit amounts to a rejection of the plaint, which is considered a decree under Section 3 of the Civil Procedure Code, thus subject to appeal. (ii) The Court asserted that revision was not a viable alternative to appeal unless special circumstances were present, which the applicant failed to demonstrate. (ii i) The Court determined that alleged special circumstances like delay in obtaining documents or wrong legal advice do not justify revision when an appeal is available. The application was struck out for being misconceived and the preliminary objection was upheld, with costs awarded to the respondents. Statutory Provisions: Section 4(3), Section 5(1)(a) Appellate Jurisdiction Act, Cap. 141 R.E. 2002 Section 3 , Order VII, Rule 11(c ) Civil Procedure Code, Cap. 33 R.E. 2002 Section 99(1), Se ction 10 2 Land Registration Act, Cap. 334 R.E. 2002 Rule 65(1) Tanzania Court of Appeal Rules, 2009 Cases referred to : Barclays Bank (T) Ltd v. Tanzania Pharmaceuticals Industries Ltd & Others, Civil Application No. 231/16 of 2019 (unreported) Francis Kwang Musei v. Hon. Wilbroad Peter Slaa & Others, Civil Application No. 2 of 1999 (unreported) Halais Pro - Chemie v. Wella A.G. [1996] TLR 269 Hassan Ng’anzi Khlafan v. Njama Juma Mbega (Legal Representative of the late Mwanahamisi Njama) & Another, Civil Application No. 218/12 of 2018 (unreported) Jacqueline Ntuyabaliwe Mengi & Others v. Abdiel Reginald Mengi & Others, Civil Application No. 332/01 of 2021 (unreported) JV Electrical & Electronics Co. Ltd and Shanghai Electric Power T & D Engineering v. Rural Energy Agency & 2 Others, Civil Application No. 162/01 of 2019 (unreported)

Moses J. Mwakibete v. The Editor, Uhuru, Shirika la Magazeti ya Chama & Another [1995] TLR 134 National Insurance Corporation (T) Ltd v. Shengena Limited, Civil Application No. 230 of 2015 (unreported) Peter Ng’omango v. Attorney General [1997] TLR 456