World Oil (Tanzania) Limited vs MRS. Zubeda Ahmed Lakha & Others (Civil Application No. 110/11 of 2023) [2023] TZCA 17724 (5 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA f CO RAM: MKUYE, 3.A., LEVIRA, 3.A. And GALEBA, 3 JU CIVIL APPLICATION NO. 110/11 OF 2023 WORLD OIL (TANZANIA) LIMITED . ............. .......... . ............ . ....... . APPLICANT VERSUS MRS. ZUBEDA AHMED LAKHA . ........ . ......... . ......................... . 1 st RESPONDENT HAJIBHAI KARA IBRAHIM .... . ............................................ . 2 nd RESPONDENT THE MINISTER OF LANDS, NATURAL RESOURCES AND TOURISIM (Now MINISTER OF LANDS HOUSING AND HUMAN SETTLEMENTS DEVELOPMENT .... . .................... . 3 rd RESPONDENT THE ATTORNEY GENERAL . ................ . ......................... ..... . 4T » RESPONDENT THE SOLICITOR GENERAL .... . ............ . ........ . ........................ . 5™ RESPONDENT ALBERT SITTA t/a MEMO AUCTION MART AND COURT BROKER .... . ................ . ..... . ......... . ................. . 6 th RESPONDENT HASHIM RUNGWE .............. . ......................... . ........... . 7™ RESPONDENT (Application for Revision of the Ruling and Order of the High Court of Tanzania at Tabora) (Bahati, 3.) dated the 16th day of September, 2022 in Miscellaneous Land Applications Nos. 18 & 19 of 2022 RULING OF THE COURT 27th September & 5th October, 2023 LEVIRA. 3A.: This ruling is in respect of points of preliminary objection against the present application for revision raised by the counsel for the 1s t and 6t h i

respondents and counsel for the 3rd , 4th and 5th respondents as per the notices filed on 26th July, 2023 and 22n d September, 2023, respectively. The notice of motion is made under section 4 (3) of the Appellate Jurisdiction Act Cap, 141 R.E, 2019 (the AJA) and Rules 65 (1) (2) (3) of the Tanzania Court of Appeal Rules 2009 (the Rules). It is supported by the affidavit of Mabruck Chubwa, Principal Officer of the applicant. In the notice of preliminary objection, the grounds raised are as follows:

1. That, since an order dismissing objection proceedings is neither appealable nor subject to revision the application by the Applicant is incompetent
2. That, the application is incompetent for being filed contrary to the requirement o f Order XXI Rule 62 o f the Civil Procedure Code Cap 33 R.E , ; 2019.
3. The application is bad in law for making Solicitor General a party, contrary to the provisions of section 6 (5) o f the Government Proceedings Act, Cap 5 R.E 2019. To shed light on what had transpired, a brief background of the matter at hand shall serve the purpose. The gist of the dispute between the parties herein as per the pleadings is a piece of land, Plot No. 153/3 at Kigoma Area, Kigoma/Ujiji Municipality comprised in Certificate of Title No. 11344 L R 2

Tabora - Land Office No. 496555 (the dispute property), which the applicant claims to be his. The said land is a result of revocation of right of a occupancy of land known as Plot No. 153, Block 'A' Lumumba Road, Kigoma Municipality comprised in Certificate of Title No. 6793 by H.E. the President, which initially was owned by the first respondent. Vide Civil case No. 15 of 1994 lodged in the High Court of Tanzania at Tabora, the first respondent unsuccessfully sued the second, third and fourth respondents challenging the revocation of her right of occupancy. It is worth noting that after the revocation, that {and was resurveyed and subsequently subdivided into three plots Nos. 153/1, 153/2 and 153/3. The new plots were reallocated to three people including the second respondent. The applicant claimed to have acquired the dispute property through allocation of the same to her predecessors in title. These were, Gervas Bidyanguze and later, Nashon Bidyanguze as a guardian of Ilakoze Nashon Bidyanguze in the year, 1985. Following dismissal of Civil Case No. 15 of 1994, the first respondent appealed to the Court in Civil Appeal No. 238 of 2018. The Court found that the revocation order was illegal, and so were the subsequent sub-divisions of the first respondent's land into three plots. The judgment of the trial court was quashed and substituted with an order in favour of the first respondent

declaring the revocation of her right of occupancy, subdivision and ultimate reallocation to the third parties of her land illegal. Therefore, she was declared the lawful owner of Plot No. 153 Block 'A', Lumumba Road, Kigoma Ujiji. As intimated above, the applicant was neither a party to Civil Case No. 15 of 1994 nor Civil Appeal No. 238 of 2018 which gave the first respondent victory. It was not, until in July, 2022, when the applicant learned that the dispute property was liable for attachment which was ordered vide Execution Case No. 8 of 2022 in the High Court of Tanzania at Tabora in enforcement of the Judgment of the Court in Civil Appeal No. 238 of 2018. There was an order for the second respondent and his agents to give vacant possession of Plot No. 153 Block 'A', Lumumba Road, Kigoma, Ujiji Municipality. The applicant denied to be the agent of the second respondent. However, she became apprehensive that if the said execution proceeds it would affect his interest despite the fact that she was hot a party neither to Civil Case No. 15 of 1994 nor to Civil Appeal No. 258 of 2018. As such, her claim was that, she was not afforded the right to be heard. The applicant was aggrieved by the order of the High Court in Execution Case No. 8 of 2022. Therefore, she instituted objection proceedings in the High Court registered as Consolidated Miscellaneous Land

Applications Nos. 18 and 19 of 2022. The main argument being that, the eviction order in Execution Case No. 8 of 2022 is not valid because she has never been a party to any case that involved the respondents. Yet, she is the lawful owner of the property which was about to be attached. Having heard the rival arguments by the counsel for the parties, the High Court Judge decided in line with the decision of the Court in Civil Appeal No. 238 of 2018 which declared the revocation and subdivision of Plot No. 153 Block 'A' Lumumba Road Kigoma Ujiji, illegal, it dismissed the applicant's objection proceedings for lacking in merit. Aggrieved, the applicant has come before the Court challenging that dismissal by way of revision. However, his application has met some obstacles following points of preliminary objection raised by some of the respondents as intimated above, and which are subject of the present ruling. At the hearing of the application, the applicant was represented by Mr. Respicius Didace, learned advocate, whereas the 1st and 6th respondents were represented by Mr. Mugaya Kaitila Mtaki, learned advocate, the 3rd , 4t h and 5th respondents had the services of Ms. Mariam Allen Matovolwa and Mr. Samwel Mahuna, both learned State Attorneys. The 7th respondent had the services of Mr. Edward Mol lei, learned advocate and the 2n d respondent did not enter appearance despite being duly served through her advocate. As it is

the order, we had first to dispose of the raised points of preliminary objection before we could proceed to the revision. Arguing in support of the first point of objection, Mr. Mtaki submitted that the application is incompetent as it requires the Court to revise the decision of the High Court in objection proceedings contrary to Order XXI Rule 62 of the Civil Procedure Code Cap 33 R.E. 2019 (the CPC). Expounding his arguments, Mr. Mtaki submitted further that under the cited provision, the decision in objection proceedings is conclusive and it does not give a party an option of appeal or revision like the present application. The said provision, he said, was interpreted by the Court in the case of National Housing Corporation v. Peter Kassidi and 4 Others, Civil Application No. 294/16 of 2017 (unreported) where it was stated that the only remedy available to the party against whom that order is made is to institute a regular suit to prove his claim. Therefore, Mr. Mtaki submitted that, there is no room for revision as brought by the applicant herein. In addition, he cited the case of Sosthenes Bruno and Dianarose Bruno v. Flora Shauri, Civil Appeal No. 249 of 2020 (unreported) in which the court said that the decision of the Court under Rule 62 of Order XXI of the CPC is final and not appealable. Mr. Mtaki raised a concern as he wondered why the applicant does not want to lodge a suit to claim for the alleged right over the disputed property.

He referred us to the recent decision of the Court in Khalid Hussein Muccadam v. Ngulo Mtiga (as legal personal representative of the Estate of Abubakar Omar Said Mtiga) and Another v, Mr. Abdaliah Makatta Mwinyimtama T/A Sensitive Auction Mart and Court Broker, Civil Application No. 405/17 of 2019 (unreported) where, in dealing with an application similar to the present one, the Court held that since the application for objections proceedings was dismissed, it means that its determination was final and conclusive in the sense that the applicant was prohibited to bring that application. Therefore, he invited us to base on our previous decision and dismiss the present application. Regarding the applicant's complaint that she was denied the right to be heard before the High Court and the Court, Mr. Mtaki submitted that the execution complained of is from Civil Appeal No. 238 of 2018. However, he said, the applicant's complaint regarding the right to be heard was dealt upon and rejected by the Court in its decision of 25th September, 2023 in the case of Hajibhai Kara Ibrahim v. Mrs. Zubeda Ahmed Lakha and 2 Others, Civil Application No. 573/11 of 2022. As a result, he argued, if this application is entertained, the Court may arrive at a decision conflicting its earlier decision in Civil Appeal No. 238 of 2018. In other words, he said, the Court cannot give parallel decisions in relation to the same subject matter. He,

thus, prayed for the Court to find that the present application is incompetent and strike it out with costs. On her part, Ms. Matovolwa fully supported the submission by Mr. Mtaki in respect of the first point of preliminary objection which in essence is the same as the first ground she raised. In addition, she submitted that under Order XXI Rule 57 of the CPC any party who thinks that his property was wrongly attached is given a right to be heard. In that sense, she argued, since the applicant filed objection proceedings and the decision was delivered, it means she was given the right to be heard she is now complaining to have been denied of. She insisted that under Order XXI Rule 62 of the CPC, the decision in objection proceedings is final and conclusive reciting the case of Khalid Hussein Muccadam (supra). She submitted further that, the present application is brought under Section 4 (3) of the AJA which allows revision only when the applicant has no any other remedy, which is not the case herein. The applicant has a right to institute a fresh suit just as advised by the High Court, she insisted. For that reason, she contended, this application is misconceived, hence incompetent. Regarding the third ground of preliminary objection, Ms. Matovolwa submitted that, it was wrong for the Solicitor General to be impleaded in the current application as a party. As a result, she argued, the application is bad

in law as it contravenes section 6 (5) of the Government Proceedings Act, Cap 5 R.E. 2019. Finally, she prayed for the application to be struck out with costs. Mr. Mollell did not support the points of preliminary objection raised by his fellows, the other respondents' counsel. In reply to the above submissions, Mr. Didace commenced his submission by citing a decision of the Court in Nondo Kalombola t/a N.J. Petroleum Spri and Another v. Broadgas Petroleum (TZ) Limited and 3 Others, Consolidated Civil Applications Nos. 165/16, 518/16 of 2019 (unreported) where the Court stated that: "It is trite law that the Court's power o f revision can only be invoked; One, where there is no right to appealf ; Two, where right o f appeal exists but has been blocked by a judicial process; Three, where although a party has a right o f appeal, sufficient reason amounting to exceptional circumstance exists; and Four, where a person was not a party to the relevant proceedings o f the High Court." Guided by the above position, particularly, pressing on special circumstances and that the applicant was not a party in the High Court proceedings affecting her rights over the dispute land, Mr. Didace urged us to consider the present application in that perspective.

Upon that foundation, Mr. Didace referred us to Order XXI Rule 62 of the CPC which he said, it does not mandatory require an aggrieved party to lodge a fresh suit in case of dismissal of his objection proceedings. As such, he argued that the term used in that provision is "may" which according to the rules of interpretation is not compulsory. Therefore, he argued that, the submissions by the counsel for the respondents that the decision in objection proceedings is final and conclusive is not proper. He, thus, submitted that, the right of revision exists in the circumstances of the current revision so as to correct errors committed and Rule 62 of Order XXI does not close the right to revision. He pointed out that the decision of the High Court subject of the intended revision pronounced that the applicant was not heard and has proved interest and possession. Interest and possession are key elements to be proved, he added and cited the case of Sostenes Bruno and Dianarose Bruno v. Flora a Shauri (supra). According to him, it was wrong for the High Court Judge to refuse to grant the application and continue to advise the applicant to sue the person (Government) who granted her, the right of occupancy. He said, that was a glaring mistake which the Court cannot leave to exist. In support of this argument, he cited the case of Tryphone Elias @ Ryphone Elias and

Prisca Elias v, Majaliwa Daudi Mayaya, Civil Appeal No. 186 of 2017 (unreported) where it was held that, the Court cannot normally justifiably close its eyes on a glaring illegality in any particular case because it has a duty of ensuring proper application of the laws by the subordinate courts - See the case of Marwa Mahende vs. Republic [1998] T.L.R 249. Mr. Didace argued that allowing this application will not be the first time the Court is doing so. He gave an example of the decision of the Court in Commissioner General Tanzania Revenue Authority v. JSC Atomredmetzoloto (ARMZ), Consolidated Civil Appeals Nos. 78 & 79 of 2018 (unreported), where despite the fact that the application was incompetent it addressed the illegality. Equating with the present application, Mr. Didace submitted that the applicant was not accorded the rights over the dispute property. Apart from that, he showed his interest and possession in objection proceedings but the matter was not decided in his favour. In the circumstances, he argued, the Court cannot abstain from determining the rights of the applicant in the present application. He fortified his argument by an extract from the Paper Presented to Magistrates, Court Brokers and Court Clerks in Arusha High Court Zone in October, 1999 where at page 13, Hon. Rutakangwa, JA (Rtd) made an observation to the effect that; Orders li

under Rule 59-61 of the CPC made as a consequence of an application under Rule 57 are not appealable but are subject to revision. He went on insisting that the word "may" used under Rule 62 of Order XXI of the CPC is optional as it does not compel the applicant to institute a fresh suit. He contended vigorously that, since the applicant was not heard, the decision of the High Court is a nullity as it was decided in the case of Director of Public Prosecutions v. Rajabu Mjema Ramadhani, Criminal Appeal No. 223 of 2020 (unreported). Mr. Didace tried to press on us to find special circumstances in this matter and find the application competent having considered that, the High Court has already said that the decision of the Court has already declared possession of the dispute property illegal. Therefore, he speculated, so to speak, the possibility of the same decision if the applicant institutes a fresh suit before the High Court as directed in the impugned decision. He urged us not to close eyes on what he referred to as illegality if we will find that the application is incompetent as it was done by the Court in MS. Sykes Insurance Consultants Co. Ltd v. Ms. Sam Construction Co. Ltd, Civil Revision No. 8 of 2010 (unreported). Finally, he urged us to overrule the preliminary point of objection raised in relation to competence of the revision on account of his submission.

Alternatively, he prayed, if we shall find that the preliminary objections are valid, we should consider circumstances of this matter and grant the application. Regarding the second point of preliminary objection, Mr. Didace conceded that the 5th respondent, Solicitor General was not supposed to be made a party to this application. However, he said, there is no injustice caused by misjoinder of the Solicitor General. He backed his assertion by the decision of the Court in Juliana Francis Mkwabi v. Laurent Chiwanga, Civil Appeal No. 531 of 2020 (unreported). In rejoinder, Mr. Mtaki submitted that all cases cited by the counsel for the applicant are distinguishable from the cases cited by counsel for the 1s t and 6th respondents and for the 3r d to 5th respondents in support of preliminary objection. Expounding, he stated that all the cases cited by Mr. Didace were not decided in the context of Order XXI Rule 62 of the CPC unlike the ones they cited. He thus prayed that we should not consider the cases cited by Mr. Didace. With respect, he submitted that the paper cited by Mr. Didace of 1999 has already been overtaken by events. The position has changed and the interpretation of Rule 62 of Order XXI of the CPC provided therein, is no longer proper, for it has been given a proper interpretation by this Court in recent decisions.

As regards the impugned decision of the High Court, Mr. Mtaki argued that what the learned Judge stated at page 11 is not in itself an illegality or irregularity. According to him, it might be a problem in interpretation. As such, he said, there is no glaring irregularity in the High Court decision and thus, the argument by Mr. Didace should not be considered. He submitted further that, the applicant has not instituted a suit at the High Court out of fear and therefore the Court cannot decide on speculations. The applicant has refused to exercise his right to be heard. Therefore, he submitted that the application at hand is incompetent and prayed for the same to be struck out with costs. Ms. Matovolwa and Mr. Model had no rejoinder to make. Having heard the parties, on preliminary points of objection and examined the notice of motion and supporting affidavit, the main issue calling for our determination is whether the application before the Court is competent. We wish to state at the outset that the second point of preliminary objection need not task us much as the same is not contested and we as well agree with the parties, that it was a mistake though not fatal to make the Solicitor General a party to this application in the circumstances of this matter where a proper party (the Attorney General) is also made a party. The preliminary objection raised is sustained to the extent explained above.

We now revert to consider the issue we have raised. The point of objection raised regarding the competence of the present application is based on Order XXI Rule 62 of the CPC. For ease of reference, we find it apposite to reproduce it hereunder. It reads: "Where a claim or an objection is preferred the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but subject to the result o f such suit, if any the order shall be conclusive." The above provision is very clear on the procedure to be followed by a party against whom an order is made in case of dismissal of objection proceedings as the order of the court thereof is conclusive. This means, that the law does not provide for a provision for either appeal or revision against such order. It directs the aggrieved party to institute a suit to establish the right which he/she claims to the property in dispute. In the case of National Housing Corporation (supra) cited to us by Mr. Mtaki, the Court while dealing with the scope of orders failing under Order XXI Rule 62 of the CPC, it explicitly stated as follows: "Where an objection is preferred and an order determining that objection is subsequently made, in terms o f Rule 62 o f the same Order, the only remedy

available to the party against whom that order is made is to institute a regular suit to prove his claim. Put in other words, after the decision on an objection proceeding has been made by a competent Court, there is no remedy for appeal or revision." [Emphasis added] Mr. Didace spent quite a considerable time in his submission trying to convince the Court to agree with him that, the present application falls under special circumstances so that we allow the revision despite the fact that the impugned order of the Court was made under Order XXI Rule 62 of the CPC. The reasons he advanced were as follows: First, that the applicant was not accorded the right to be heard neither before the High Court in Civil Case No. 15 of 1994 nor on appeal in Civil Appeal No. 238 of 2018 by the Court. Second, that he showed interest and possession over the dispute property during objection proceedings but the High Court Judge dismissed his application. Third, the decision of the High Court on objection proceedings was premised upon the decision of the Court on appeal, and fourth, the order of the High Court directing him to sue whoever granted her the land was illegal. He pressed on us that the word "may" used under Rule 62 of the Order XXI of the CPC provides for flexibility in a sense that institution of a suit after

dismissal of objection proceedings by a party whose order is made against, is an option. With respect, we think Mr. Didace missed the proper interpretation. We agree with him that under the rules of interpretation the word "may" means an option/or not compulsory. However, it is plain from the wording of the provision under scrutiny that the word "may" is preceded by the following phrase: "... the party against whom an order is made may institute a suit The option provided under this provision is given to an aggrieved party either to institute a suit or to let it go. We are not amused by the interpretation by Mr. Didace that the word "may" in the contest of the present application meant to give the applicant an option to either institute a suit or revision. Besides, we do not find any special circumstance in the present application which would justify us to depart from the current established position by law. We say so because the applicant's claim that she was not accorded the right to be heard is unfounded. It is true that the applicant was not a party to Civil Case No. 15 of 1994 and for obvious reasons not a party to Civil Appeal No. 238 of 2018. Again, it is equally true that when she became aware of the Execution Proceedings, she filed objection proceedings as a way

of raising her voice regarding the disputed property. Therefore, the fact that her application was not granted does not mean that she was denied a right to be heard. Also, regarding the claim that the High Court directed her to institute a case because of the existence of the decision of the Court on appeal, we do not find a purchase on it. As stipulated above, the law is very clear, that a party to objection proceedings against whom an order is made may institute a suit to establish the right which he/she claims. This is another avenue which the applicant can exercise his right to be heard. We are of the settled mind that the High Court Judge directed the applicant according to the law. In the circumstances, we do not find any peculiarity in the present application to justify departure from the current position of the law. We agree with Mr. Mtaki that, almost all the decisions cited to us by Mr. Didace are distinguishable because they were cited out of context We had time to go through them and we wish to point out that for the purpose of determining the preliminary objection, we do not find the alleged illegality of the impugned decision claimed by Mr. Didace to justify departure from the above established position. Suffices here to state that, the Judge cannot be faulted for acknowledging existence of the decision of the Court which, by the way, is not confidential or arriving at a decision she made having considered factors

which were not in dispute between the parties and by abiding to the dictates of the law. In the circumstances, the decision of the court does not become illegal on account of the conclusion arrived at. We say no more. Reverting to the well-established position of the law, we wish to restate what we stated in Khalid Hussein Muccadam (supra) as follows: "Since the application for objection proceedings was dismissed, it means that its determination was final and conclusive in the sense that the applicant was prohibited to bring the application at hand. Filing o f this application was wrong as it is prohibited by law. Under Rule 62 o f Order XXI o f Civil Procedure Code , the applicant ought to have filed a Civil Suit to establish his interest in the suit property. Put it in other words, the present application for revision of the order emanating from the objection proceedings is incompetent before the Court since it is barred by Order XXI Rule 62 of the Civil Procedure Code." [Emphasis added] Equally, we find that the present revision application which emanates from objection proceedings is incompetent before the Court as it is barred by Order XXI Rule 62 of the CPC. Therefore, we sustain the preliminary 19

objection. Consequently, we strike out the application for being incompetent with costs. DATED at TABORA this 5th day of October, 2023. The Ruling delivered this 5th day of October, 2023 in the presence of Mr. Akram Magoti learned advocate for the 1s t and 6th respondents also holding brief for Mr. Respicius Didace learned counsel for the applicant, Mr. Gureni Mapande, learned State Attorney for the 3rd , 4th and 5th respondents; where Mr. Edward Mollel and Mr. Msafiri Mabera both learned counsels for the 7th Respondent linked via Video Conference from Tabora to Dar es Salaam and in the absence of the 2n d respondent is hereby certified as a true copy of the Original. R. K. MKUYE JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL Z. N. GEALEBA JUSTICE OF APPEAL 20