Rafikihawa Mohamed Sadik vs Ahmed Mabrouk & Others (Civil Application No. 250/01 of 2019) [2023] TZCA 17766 (20 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KOROSSO. J.A. RUMANYIKA, J.A And MGONYA. J.A1 CIVIL APPLICATION NO. 250/01 OF 2019 MRS. RAFIKIHAWA MOHAMED SADIK ........................................ APPLICANT VERSUS AHMED MABROUK ................................................................ 1 st RESPONDENT BI. NAJMA HASSANALI KANJI ............................................ 2 nd RESPONDENT THE HON. ATTORNEY GENERAL. ........................................... 3 rd RESPONDENT (Application for Revision of the Ruling and Drawn Order of the High Court of Tanzania, Dar es Salaam, District Registry at Dar es Salaam) (Hon. Mzuna, 3 .^ dated the 14th day of July, 2015 in Civil Case No. 95 of 1994 RULING OF THE COURT 3rd & 20th October, 2023. MGONYA J.A.: It is against the High Court's decision in Civil Case No. 95 of 1994 (Mzuna, J.) dated 14th of July, 2015, that the applicant has lodged the instant application for revision before the Court. The application is by way on notice of motion pursuant to Section 4(3) of the Appellate Jurisdiction Act Cap. 141 [R. E. 2002], (herein to be referred as AJA), and Rule 65 (1) of the Tanzania i

Court of Appeal Rules, 2009 (the Rules). It is supported by the affidavit deponed by Mrs. Rafikihawa Mohamed Sadik, the applicant herein. The background of this matter albeit brief will be helpful. In the High Court of Tanzania, Dar es Salaam District Registry, the applicant herein instituted Civil Case No. 95 of 1994 against the respondents among other things for a declaration that the applicant was the lawful and rightful owner of the house on Plot No. 3 Block 19 Uhuru Street, Dar es Salaam and title No. 37566 L.O. No. 127141; (the disputed property) and declaration that the first and second respondents are not the owners on the property on Title No. 37566. It is gathered from the plaint that, on or about the 26th day of March (the year not mentioned), the applicant, the plaintiff by then, received a letter from Commissioner for Lands instructing her to surrender the Title Deed and other relevant documents in respect of Plot No. 3 Block 19 Uhuru Street, Dar es Salaam to the Commissioner. That on receipt of the said letter, the plaintiff through her advocate lodged a caveat in the Land Registry so as to protect her rights. However, on 30th April, 1994, the plaintiff received a notice from the Registrar of Titles under Section 99(1) for rectification of the Land 2

Register. That in challenging the validity on the said notice, the plaintiff filed the above-mentioned suit. Being served with a plaint, the first defendant raised the preliminary objection arguing that: " in terms o fSection 99(1) and section 102 o fthe Land Registration Act Cap. 334[R. E 2002], the suit is not iegaiiy maintainable". As anticipated when there is a preliminary objection, the same should be determined first, the High Court heard parties' arguments in support and against the preliminary objection. At the end, the High Court decided in favor of the objector where the court found that, the suit was improperly before the court as the same emanated from the act of the Registrar of Titles hence, a proper way was to appeal to the High Court. Therefore, the preliminary objection was upheld and the suit was struck out with costs. Dissatisfied with the decision, the applicant filed the instant application to move this Court to call for and examine the record and the proceedings in Civil Case No. 95 of 1994, to satisfy itself as to the correctness, legality and propriety of the ruling and drawn order dated 14th July 2015 on the grounds that:

i) The decision o f the High Court is illegal as the Honourable trial Judge wrongly held that the suit was not maintainable in terms o f Section 99(1) and Section 102 o f the Land Registration Act, Cap. 334 [R. E 2002] while the applicant in the suit was not challenging the decision o f the Registrar o f Titles who was not even a party to the suit; ii) That the trial Judge wrongly entertained the preliminary point o f objection which was not properly before the court; Hi) That the decision o f the High Court is not appealable; and iv) That there exist extra ordinary circumstances which prevented the applicant to pursue an appealagainst the decision o f the High Court. Being served with the notice of motion, the 1s t and 2n d respondents' counsel vehemently resisted the motion and in addition filed a notice of preliminary objection to the effect that/ the application is misconceived, unmaintainable and or a non stater for the reason that the applicant had a right to appeal against the High Court decision, (Hon. Mzuna, J.) dated I4 h July, 2015 which is subject to the current application for revision. When the application was placed before us for hearing, Mr. Edward Peter Chuwa assisted by Ms. Anna Lugendo appeared for the applicant whereas Mr. Samson Mbamba learned counsel appeared for the 1s t and 2n d respondents

and Mr. Ayoub Sanga accompanied by Mr. Urso Luoga, both learned state attorneys appeared for the 3r d respondent. For expeditious determination of the application, we found it appropriate to allow parties' counsel to submit on the point of preliminary objection then later on the substantive application. Subsequently, if the preliminary objection will suffice to dispose of the application we will not hassle to determine the merit of the application. It was Mr. Sanga, who took the floor first, he submitted that in order to seek revision there must be special circumstance to warrant this Court to invoke its revisional power. To bolster his stance he cited the cases of JV Electrical & Electronics Co. Limited and Shanghai Electric Power T & D Engineering v. Rural Energy Agency and 2 Others, Civil Application No. 162/01 of 2019 (unreported), Halais Pro-Chemie v. Wella A.G. [1996] T. L. R. 269 and Moses J. Mwakibete v. The Editor, (Jhuru, Shirika la Magazeti ya Chama and Another [1995] T. L. R. 134. He argued the point of preliminary objection to the effect that, there must be a special circumstance for a party to seek revision. That in the instant application, the applicant was to appeal and not to come to Court by way of revision. He stated that, the application came from the decision where the High Court 5

struck out the plaint as the same was not properly before the court, since what was contentious is the decision of the Registrar to rectify the title. Therefore, the fact that the applicant was not satisfied with the act of the Registrar, she was supposed to appeal to the High Court and not to institute a fresh suit, hence in his view this application is wrongly premised before this Court. On his part, Mr. Mbamba commenced his submission by referring this Court to the case of Peter Ng'omango v. Attorney General [1997] T. L. R. 456 where it was stated that, an order to strike out a suit is a decree hence it is appealable. He went on to state that, there are no special circumstances have been shown in this application and even if the applicant claims that, some proceedings are not in place, in his view, this is not a special circumstance. In adverse, Mr. Chuwa vigorously contended that the point of preliminary objection is meritless as the applicant was not able to come before the Court by way of appeal as an order to struck out a suit is not appealable. To fortify his stance, he cited the case of National Insurance Corporation (T) Ltd v. Shengena Limited, Civil Application No. 230 of 2015 (unreported). 6

It was Mr. Chuwa's further contention that, there is supposed to be a decree in order to appeal. He contended further that, in this application, there are special circumstances as the case was returned from this Court to the High Court as there was no cause of action and the High Court refused to adhere to the Court of Appeal rules. Mr. Chuwa distinguished the circumstance of the case of Ng'omango (supra) with the instant application on a point that, there must be rejection of the plaint. Hence, he adamantly insisted that, since there was no decree, there was no way for them to appeal. In his brief rejoinder, Mr. Sanga reiterated that, no special circumstances have been shown by the applicant, to warrant this Court to invoke its revisional powers over the matter. Likewise, Mr. Mbamba in his short rejoinder, referred this Court to Paragraph 18 of the applicant's affidavit where the applicant deponed that, she did not serve a notice of appeal which implies that she filed an appeal, but decided to abandon the same. Having heard the submissions from the counsel for the parties on the preliminary objection, we reserved our ruling and proceeded to hear their rival submissions on the merit of the application. Therefore, we now proceed to first determine the preliminary objection, whereby from the counsel's

submissions, the crucial issue at this juncture is whether the application for revision against an order of the High Court is tenable. As alluded to above, the notice of motion is made pursuant to Section 4(3) of the Appellate Jurisdiction Act and Rule 65(1) of the Rules. Section 4(3) provides thus: "(3) Withoutprejudice to subsection (2), the Court ofAppeal shaii ha ve the power, authority andjurisdiction to caii for and examine the record o fanyproceedings before the High Court for the purpose of satisfying itself as to the correctness, legality orpropriety ofany finding, order or any other decision made thereon and as to the regularity of any proceedings of the High Court." ^Emphasis added). We are also mindful of the legal propositions concerning the revisional power of the Court under Section 4(3) of AJA, of which the case of Halais Pro-Cheme (supra), Mwakibete (supra) and Transport Equipment Ltd (supra) are the authority. In Halais Pro-Cheme (supra) this Court held that: (i) The Court could on its own motion and at any time invoke its revisional jurisdiction in respect o f proceedings in the High Court; 8

(ii) Except under exceptional circumstances, a party to proceedings in the High Court could not invoke the revisiona! jurisdiction o f the Court as an alternative to the appellate jurisdiction o f the Court; (Hi) A party to proceedings in the High Court couid invoke the revisionaijurisdiction o f the Court in matters which were not appealable with or without leave; and (iv) A party to proceedings in the High Court could invoke the revisionaijurisdiction o f the Court where the appellate process has been blocked byjudicialprocess. See also the case of JV Electrical & Electronics Co. Limited and Shanghai Electric PowerT&D Engineering (supra). Going through the record of this application, it is observed that the applicant is aggrieved with the High Court order that struck out the suit following the Preliminary objection raised by the 1s t respondent on the competence of the suit, as the same takes its origin from the act done by the Registrar of Titles. The trial Judge ruled that: "...the preliminary objection is allowed. The suit is improperly before this court as the same is hereby struck out with costs."

It is from that decision, emerged the taxing issue as whether there is a right to appeal on a matter which was struck out. While Mr. Sanga and Mr. Mbamba for the respondents argued that an appeal was a right remedy because, when the suit was struck out, the matter was determined into its finality and nothing was pending before the court, Mr. Chuwa for the applicant adamantly resisted that proposition on a ground that, when a suit is struck out there was no decree. It was Mr. Chuwa's stance that no decree no right to appeal. Hence it is justifiable to come before this Court by way of revision. As to what a decree entails, Section 3 of the Civil Procedure Code, Cap. 33 [R. E. 2002] (the CPC) provides thus: " decree" means the formal expression o f an adjudication which ; so far as regards the court expressing it, conclusively determines the rights o f the parties with regard to all or any o f the matters in controversy in the suit and may be either preliminary or final and it sha/i be deemed to include the rejection o fa plaint and determination o f any question within section 38 or section 89, but shall not inciude- (a) An adjudication from which an appeal lies as an appeal from an order; or 10

(b)Any order o f dismissal for default." From the above definition we are reminded that, even rejection of a plaint falls within the scope of what a decree involves. Then the question that crops up therefore is; do striking out of the suit amounts to rejection of the plaint? The law under Order VII Rule 11 of the CPC provides for the cases in which a plaint shall be rejected. Sub rule (c) of rule 11 above provides that, where the suit appears from the statement in the plaint to be barred by law, the plaint shall be rejected. In the instant application, as Mr. Sanga stated, the trial Judge struck out the suit because the filing of the suit contravened Section 99(1) and 102 of the Land Registration Act, which provides for an appeal when a claimant is aggrieved with an act of the Registrar of Titles. Going through the plaint and the referred law, we agree with Mr. Sanga's arguments and also find that, the order of striking out the suit finally and conclusively disposed of the suit which amounts to rejection of the plaint as the suit was barred by law as stipulated under Order VII Rule 11(c) of the CPC. See also; Peter Ng'omango v. Attorney General (supra). Therefore, in the circumstances of this case we ii

are of the view that striking out of the suit involved rejection of the plaint, and thus, the same falls within the scope of a decree. Section 5(1) (a) of the AJA sets out the conditions for an appeal to this Court which include complaints against every decree. If that is the case then, we hold that, a proper remedy in for the applicant was to lodge an appeal and not an application for revision as contended by Mr. Chuwa. We are alive to the fact that such an application for revision can be preferred while there are special circumstances as observed in the case of Halais Pro-Chemie v. Wella A.G. (supra) and Moses J. Mwakibete v. The Editor, Uhuru, Shirika la Magazeti ya Chama and Another [1995] T. L. R. 134. In his submission Mr. Chuwa enthusiastically contended that there were special circumstances which warrant this Court to invoke its revisional power. We agree, it is the general rule which we made and have always followed that; when there is existence of special circumstances this Court may invoke its revisional powers. The alleged special circumstances in the application at hand are averred in paragraphs 17 and 18 of the applicant's affidavit, which we implore to reproduce hereunder: "17. That even if the decision o f the High Court was appealable, there exist special circumstances which preclude 12

me from appealing to this Court and thus preferred revision instead I was compelled to appeal on a decision on preliminary objection was back in 1998. The same matter was struck out on the preliminary point on 14hJuly 2015 i.e., 17 years later and on a wrong advice from my former lawyers, I started to apply for extension o f time to challenge the decision o f the Registrar o f Titles which was not there when I filed the case. 18. That when I discovered this point on advice from my present lawyer, I had not served a Notice o f Appeal and to date I have not been supplied with the copy o f the proceedings o fMzuna, J. which dismissed my case regardless o f several requests and reminders to the High Court". With respect, we do not find any special circumstances revealed by the applicant for this Court to exercise its revisional power. The delay to be supplied with the requisite documents for appeal purposes and wrong advice from a lawyer have never been special or exceptional circumstances for the applicant to resort to revision while she has a room to appeal. It has been an elementary principle that, where a party has the right of appeal he cannot be permitted to resort to revision. See; Barclays Bank (T) Ltd v. Tanzania Pharmaceuticals Industries Ltd & Others, Civil Application No. 231/16 of 2019, Francis Kwang Musei v. Hon. Wilbroad Peter Slaa & Others, 13

Civil Application No. 2 of 1999 and Jacqueline Ntuyabaliwe Mengi & Others v. Abdiel Reginald Mengi & Others, Civil Application No. 332/01 of 2021 (all unreported). It is also trite law that, the revisional powers of the Court are not an alternative to its appellate jurisdiction. See; Hassan Ng'anzi Khlafan v. Njama Juma Mbega (Legal Representative of the late Mwanahamisi Njama) & Another, Civil Application No. 218/12 of 2018 (unreported). All in all, the applicant herein moved the Court to exercise its revisional jurisdiction as an alternative to appeal. The advanced grounds read together with paragraph 18 of her affidavit expose that, she was prepared for an appeal process but for the reasons known to herself she changed the move. To us, this move to revision in place of an appeal is clearly misconceived unless, there was a proof that the appeal process was blocked by judicial process, With respect, there is no such proof in this application. In the event, we uphold and sustain the advanced point of preliminary objection. As we have alerted earlier that, the hearing of the application will depend on the determination of the preliminary objection, since we have 14

sustained the preliminary objection, then the determination on the merit of application dies a natural death. Consequently, we hereby strike out the application before the Court with costs for being misconceived. Ordered accordingly. DATED at DAR ES SALAAM this 19th day of October, 2023. The Ruling delivered this 20th day of October, 2023 in the presence of Mr. Urso Luoga, learned State Attorney holding brief for the Mr. Chuwa, learned counsel for the applicant, Mr. Urso Luoga, learned State Attorney holding brief for the Mr. Samson Mbamba, learned counsel for the 1s t and 2n d respondents also Mr. Urso Luoga learned State Attorney for the 3r d respondent, is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 15