| dc.description | ANSAAR MUSLIM YOUTH CENTRE VS. ILELA VILLAGE COUNCIL AND ANOTHER
IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (Kwariko, kerefu and Maige, JJ. A) CIVIL APPLICATION NO. 310/01 OF 2021.
Civil practice and procedure- review- parameters for review- the grounds for review of CAT decision are provided for under rule 66 (1) of the court rules.
Civil practice and procedure- review of the CAT decision –error need to be apparent on the face of record- whether the applicant has demonstrated such error.
By a notice of motion taken under section 4 (4) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019] (the AJA) and Rule 66 (1) (a) and (b) of the Tanzania Court of Appeal Rules (the Rules), the applicant is applying for review of the decision of this Court in Civil Appeal No. 317 of 2019 dated 7th May, 2021. The application is supported by an affidavit sworn by one Alex Mashamba Balomi, learned counsel for the applicant. It is, perhaps, noteworthy that, the respondents did not lodge any affidavit in reply.
Before embarking on the merits or demerits of the application, we find it apposite to narrate brief facts leading to this application as obtained from the record of application. It is indicated that, way back in June, 2011 Abubakar Ally Abubakar, claiming to be the principal officer of the applicant, instituted a suit in the District Land and Housing Tribunal for Mbinga (DLHT) in Land Application No. 15 of 2011 against the first and second respondents together with Nyamako Auction Mart & Court Broker who is not a party to this application. In that application, the applicant claimed that she bought a house on Plot No. 70757 with a Certificate of Title No. 280818 situated in Mbinga District (the suit property) through public auction conducted by Nyamako Auction Mart & Court Broker on 1st August, 2001. It was alleged that the auction was lawfully conducted following a proclamation of sale issued by the then Regional Housing Tribunal for Ruvuma after the first respondent failed to pay the second respondent the decretal sum of TZS. 6,700,000.00 In Land Application No. 35 of 2000 in which an ex parte judgment was issued against the first respondent. The first respondent therefore, sought a declaratory order that it was a legal owner of the suit property, an order for vacant possession and permanent injunction restraining the first respondent from conducting any activities at the suit property and general damages at the tune of TZS. 15,000,000.00. The first respondent challenged the applicant's claim by arguing that the ex parte judgment was nullified by the Court of Resident Magistrate of Songea in Miscellaneous Application No. 2 of 2001 due to some irregularities regarding the sale of the disputed house. Having heard the parties, the DLHT was satisfied that, the sale was nullified and further held that in the eyes of the law, the applicant had no cause of action against the first respondent. It thus, dismissed the applicant's application. As to how the applicant would be able to recover its money paid for the purchase of the suit property, the DLHT ordered the second respondent to pay the applicant the purchase amount of TZS. 9,912,000.00 Plus 7% interest per annum. Aggrieved, the applicant successfully appealed to the High Court. The first respondent was not satisfied with the decision of the High Court. It thus lodged Civil Appeal No. 317 of 2019 in this Court. At the hearing of the appeal, this Court considered the first ground of appeal which was to the effect that the High Court erred in entertaining the appeal while the applicant had no locus standi. Having considered that ground, this Court found that the applicant had no locus standi to initiate the proceedings in DLHT. As such, the Court declared the proceedings, judgments and orders made by the DLHT and the High Court a nullity. Undaunted, and believing that the decision of the Court has manifest errors on the face of record resulting in the miscarriage of justice, the applicant lodged the current application as indicated above.
Held:-
(i) For an application for review to succeed, the applicant must satisfy any one of the conditions stipulated under Rule 66 (1) of the Rules. It is only within the scope of that Rule that the applicant can seek the judgment of this Court to be reviewed.
(ii) It is therefore, our respectful view that, since all matters raised by the applicant in this application were adequately considered and determined by this Court, the applicant's dissatisfaction with the finding of the Court cannot be said to constitute an error apparent on the face of record so as to justify a review. In addition, and discouraging litigants from resorting to review as disguised appeals, and underscoring the end to litigation…
Application dismissed.
Mr. Alex Mashamba Balomi for Applicant
Mr. Rodgers Francis /Ms. Joyce Senkondo for 1st Respondent
Cases referred:-
1. Rizali Rajabu v. Republic, Criminal Application No. 4 of 2021 (unreported).
2. Chandrakant Joshubhai Patel v. Republic (2004) T.L.R. 218.
3. Isaya Linus Changula (As Administrator of the Estate of the late Linus Chengula) v. Frank Nyika (As Administrator of the Estate of the late Asher Nyika), Civil Application No. 487/13 of 2020 (unreported).
4. East African Development Bank v. Blueline Enterprises Tanzania Limited, Civil Application No. 47 of 2010, (unreported).
5. Wambura Evarist & 6 Others v. Sadoki Dotto Magai and another, Civil Application No. 127 of 2011 (unreported).
6. Jayantkumar Chandubhai Patel @Jeetu Patel & 3 Others v. The Attorney General & 2 Others, Civil Application No. 160 of 2016 (unreported).
7. Tanganyika Land Agency Limited and 7Others v. Manohar Lai Aggrwal, Civil Application No. 17 of 2008 (unreported).
8. Patrick Sanga v. Republic, Criminal Application No. 8 of 2011 (unreported).
RULING OF THE COURT
(Delivered 7 October, 2022) | en_US |
