Saul Henry Amon Another Vs Hamis Bushiri Pazi Others 2024 TZCA 275 (22 April 2024)
Saul Henry Amon Another Vs Hamis Bushiri Pazi Others 2024 TZCA 275 (22 April 2024)
Saul Henry Amon Another Vs Hamis Bushiri Pazi Others 2024 TZCA 275 (22 April 2024)
AT PAR ES SALAAM
VERSUS
1. HAMIS BUSHIRI PAZI
2. HAMIS BUSHIRI PAZI (As Administrator of the Estate
of the late NEEMA BUSHIRI PAZI and
3. MWAJUMA BUSHIRI PAZI) |
4. STUMAI BUSHIRI PAZI ........ RESPONDENTS
5. HATUJUANI BUSHIRI PAZI
6. HAMIS KAZUBA
7. KASSIM ALLY OMARI (As Administrator of the Estate 1
of the late TATU BUSHIRI PAZI) j
8. THE ATTORNEY GENERAI................................................................ THIRD PARTY
MWAMBEGELE. J.A.:
Appeal No. 166 of 2019 dated 13th April, 2022 (Kwariko, Maige and
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predicated on the provisions of section 4 (4) of the Appellate Jurisdiction Act,
Cap. 141 of the Revised Edition, 2019 read together with rule 66 (1) (a) and
(c) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported
Sangalali Lutema, then counsel for the first to fifth respondents. No affidavit
in reply was lodged by the sixth, seventh and the eighth respondent to resist
the application.
The context in which the application arises, as gleaned from the notice
standing on Plot No. 4 Block 17, Kariakoo area in Ilala District, in the city of
Dar es Salaam comprised in CT No. 57275. The house was inherited from
their late father, one Bushiri Pazi. Each of the said respondents had an
identifiable share in the property and had leased out to various persons
including the sixth respondent. It appears that the seventh respondent had
leased to the sixth respondent her share which consisted of a business outlet.
The first to fifth respondents, at some stage, agreed that the house should
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renovation of the premises on agreement that the expenses to be incurred
The building was renovated. Later, the sixth respondent who was
was informed that he would continue with his lease but under new terms.
The sixth respondent was irked by this bizarre twist of things. He thus
instituted a suit before the then Regional Housing Tribunal against his
landlady, the seventh respondent. The Tribunal decided in his favour. The
Tribunal. Her second appeal to the High Court was barren of fruit as well.
the suit property. The first to fifth respondents challenged the attachment
was sold in a public auction and the second applicant, acting through the
first applicant, was the highest bidder, at a bid price of Tshs 105,000,000/=.
applicants before the High Court challenging, among other things, the
legality of the sale while they are lawful owners of the suit premises. The
High Court had taken the view that, since prior to the case before it, the
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plaintiff lodged an application for setting aside the sale under Order XXI rules
87 and 88 of the Civil Procedure Code, Cap. 33 of the laws of Tanzania (the
CPC) which was dismissed, and the court confirmed the sale which became
absolute in terms of Order XXI rule 90 (1) of the CPC, the court is barred to
appealed to this Court. The Court, in the impugned decision, declared the
first to fifth respondents the lawful owners of the property. Convinced that
our decision was marred with a manifest error on the face of the record and
that it was a nullity, the applicants have come to this Court on review. The
notice of motion has four grounds which may be summarized thus; one, the
cases of bonafide purchaser for value; two, the decision made by the Court
resulting into miscarriage of justice as the applicants in the case at hand are
made to suffer the total purchase price plus the huge investment made at
the land at issue and allow those claiming 6/7 shares to benefit from the
against the rule that a party should not be punished for mistakes done by
the Court itself; three, the decision made by the Court on 13th April, 2013 is
a nullity for want of jurisdiction; and, four, the decision made by the Court
on 13th April, 2022 is in total disregard of the party's right to be heard on the
legality of joining the Third Party in the proceedings as the Court made a
decision on the issue without affording the parties their right of being heard.
In the written submissions, the applicants added one more ground: that the
Ms. Dora Simeon Mallaba and Mr. Ashiru Hussein Lugwisa, learned
support of the applications in terms of rule 106 (1) of the Rules by which
they stood at the oral hearing. So did counsel for the first to fifth
of the learned counsel for the parties in the written submissions as well as
the amplification of some points at the hearing. However, due to the lengthy
nature of the submissions, we are afraid, we may not reproduce each and
parties will find no difficulties in bearing with us for this state of affairs,
knowing full well that the course of action does not offend anybody and, in
the applicants in their Notice of Motion and their written submissions show
one, a manifest error apparent on the face of the record and if so whether
the said error resulted in the miscarriage of justice, and; two, whether the
v. The Attorney General & Others (Civil Application No. 160 of 2016)
[2019] TZCA 571 (28 May 2019) TanzLII and Attorney General v.
Mwahezi Mohamed & Others (Civil Application No. 314 of 2020) [2020]
matter, the Court adopted from Mulla on the Code of Civil Procedure
definition of the phrase in Black's Law Dictionary, 8th Ed. at p. 1019, there
On the above authorities and several others on the same point, the
court will not interpret as a manifest error on the face of the record in the
following instances:
The question which comes to the fore at this juncture is; what is the
situation in the present case? This is the question to which we now turn to
answer.
The ground that the impugned decision is marred with a manifest error
manifest error on the face of the record resulting into a miscarriage of justice
Godbertha Rukanga v. CRDB Bank Ltd & 3 Others [2019] 1 T.L.R. 339
in which we cited the provisions of section 135 of the Land Act, Cap. 113 of
the Laws of Tanzania and held that a purchaser who buys a property in an
cited other authorities in which we similarly held that the law in our country
protects the bonafide purchaser for value who purchased the property in
good faith and without any notice of encumbrance. Such authorities include;
Tom Morio v. Athumani Hassan & Others (Civil Appeal No. 179 of 2019)
[2022] TZCA 114 (16 March, 2022) TanzLII, Evarist Peter Kimathi &
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Another v. Protas Lawrence Mlay, Civil Appeal No. 3 of 2000
(Civil Appeal No. 44 of 2017) [2019] TZCA 66 (11 April 2019) TanzLII. Other
Tanzania NV v. James Alan Russels Bell & Others (Civil Revision No. 3
of 2017) [2018] TZCA 355 (26 July 2018) TanzLII and Shinyanga Region
In view of the above the learned counsel submitted that the foregoing
authorities sets the law that a bonafide purchaser who purchases a property
modification of a decree and cannot be blamed for any defect in title of the
to the applicants and implored us to correct the same by review and thereby
the first ground of review is an open ground of appeal as it does not meet
the test of ground for review under any of the paragraphs falling under rule
66 (1) of the Rules. This purported ground of review, she argued, has not
shown a manifest error in compliance with rule 66 (1) of the Rules. On the
contrary, she went on, it has several discontents and shortcomings. Ms.
appeal and was adjudicated upon by the Court. The applicants have just
been dissatisfied by the decision which they allege have departed from the
Application No. 16 of 2013 (unreported), she argued that, that the court had
171 (16 May, 2013) TanzLII to buttress the point that once a court has
adjudicated upon an issue, it cannot review it. She added that there is no
paragraph under rule 66 (1) of the Rules that provides for a ground of review
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described as departing without jurisdiction from previous decisions on a
certain position of law. After all, it would require a long drawn process to
ascertain the error complained of thereby making it not falling within the
principle that litigation must come to an end. All the grounds raised as
counsel for the first to fifth respondents and asked the Court to dismiss the
application.
large extent, dovetailed with those of Ms. Maliaba and Mr. Lugwisa for the
first to fifth respondents. She emphasized that all matters that are
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complained of in the grounds of review were decided in the impugned
judgment and the applicants are just seeking a second opinion of the Court,
third party and made a decision on it. The applicants, therefore, cannot be
the Court departed from the previous authorities on what should befall a
ordered by a court of law. On the authorities cited above, this does not fall
within the scope and purview of matters amenable to review. What the
applicants state is loudly clear that the Court in the impugned decision
departed from previous decisions on the matter without any justification and
a string of authorities that underscore the standpoint are cited. Whether the
Court departed from its previous decisions may, as already stated before, be
a good ground of appeal but not one falling within the realm of grounds of
review. In any event, in the impugned decision, the Court did not say a
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stated that the applicant had notice of the encumbrance on property. We
that the fact that the Court may have departed from its previous decisions
to review, will not detain us. Arguing in support of this ground, counsel for
the applicants faulted the Court for holding that the first to fifth respondents
were lawful owners of 6/7 shares of suit premises while it was fully aware
that the second respondent had developed the property to acquire the status
it had. Yet, counsel went on, the Court proceeded to hold that the second
respondent did that at his own peril. The learned counsel contended that as
long as the Court was aware that the first to fifth respondents did not have
any sweat in developing the land to acquire the status it had, the decision is
palpably erroneous for flouting the principle of law that goes; nemo
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(Civil Appeal No. 51 of 2016) [2020] TZCA 251 (26 May 2020) TanzLII in
Regarding the second ground, Ms. Mallaba, Mr. Lugwisa and Ms.
Shengena rebutted that an allegation that the court misapplied the law and
We respectfully agree with counsel for the respondents. That depicts the
positon of the law in our jurisdiction. The complaint that the decision made
by the Court on 13th April, 2022 is based on a manifest error on the face of
record resulting into miscarriage of justice because the applicants are made
to suffer and making the first to fifth respondents reap what they did not
sow, may be an error in the decision which, on the authorities already cited
The third ground upon which the applicant beseechs us to review the
jurisdiction. Counsel for the applicants contended that Land Case No. 185
of 2004 was filed on 15th September, 2004 to set aside a sale of the property
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in a court auction conducted on 19th April, 2000. In terms of item 4 to the
Law of Limitation Act, Cap. 89 of the Laws of Tanzania, which sets a time
limit of two years, he argued, the suit was time barred. Citing our decision
another, Civil Appeal No. 103 of 2007 (unreported), he argued that the
Zombe & Others (Criminal Appeal No. 254 of 2009) [2013] TZCA 497 (8
Tanzania Revenue Authority (Civil Appeal No. 444 of 2020) [2022] TZCA
314 (30 May, 2022) TanzLII, to reinforce the point that no valid appeal will
stem from null proceedings of the High Court. The learned counsel thus
asked us to review the decision in terms of rule 66 (1) (c) of the Rules.
For their part, the learned counsel for the first to fifth respondents as
well as Ms. Shengena for the eighth respondent, submitted that the
complaint that the suit was time barred is not a ground of review and is not
account new points of law because that would mean accusing the Court for
not taking into account the law of limitation which has never been a ground
for review. Should this ground be entertained, they argued, the course of
action would rob the respondents the right to be heard thereby occasioning
We agree with counsel for respondents that the ground may be fit for
appeal but not for review. What the applicants want the Court to do is to
have a second look at the evidence, peruse the record with a view to seeing
whether the suit was timely filed. A second look at the evidence disqualifies
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system , lik e ours, litig ation m ust have fin a lity and a
judgm ent o f the fin a l court in the land is fin a l and its
review should be an exception. That is what sound
pu b lic p o licy dem ands. "
We now turn to consider the fourth ground of review. Counsel for the
the suit before the High Court as a third party. The parties were not heard
In so doing, it was argued, the Court abrogated the parties' right to be heard.
Truck Freight (T) Limited v. CRDB Bank Limited, Civil Application No.
Responding on the fourth ground of review, counsel for the first to fifth
respondents and the learned Principal State Attorney for the eighth
review that they were not heard while they opted not to intervene when the
third party was joined at the level of the appeal. They further submitted
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that the trial court decided on the issue but the first to fifth respondents did
not appeal on it, as such, they cannot be heard on this application for review
The determination of this point will also not detain us. The Court, in
impugned judgment. The Court observed that the trial court made a decision
in respect of the third party to the effect that the proceedings against the
third party were barred by law. The Court also observed that the applicants
against whom the finding was made, did not prefer any cross appeal and
that their two counsel did not comment anything in response to the
ground that a party was not heard falls within the scope of rule 66 (1) of the
rules and once proved, a decision may be reviewed on that ground. That is
what we did in Truck Freight (T) Ltd (supra), the case referred to us by
@ Jeetu Patel (supra). But the case in the instant matter is distinguishable
in that the parties were heard and never cross appealed on the issue and,
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as if that is not enough, they never made a response on it despite being
raised by the third party. This ground as well has no substance as to trigger
registered owner on the ground that its registration by the Registrar of Titles
under power of sale was wrong. In so doing, the Court condemned the
in this ground as well. The error, if at all, is not one that is apparent on the
face of the record. By "the face of the record" we simply mean the judgment.
It will entail one to go comb the evidence and discover the error. That makes
the point not one amenable to review. Given the fact that it is not apparent
on the face of the record and will require a long drawn process to discover
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In view of the foregoing, despite the ingenuity of counsel for the
convinced the applicants just wanted to have a second view of our decision;
recourse in a court of law is a process that must have an end. The law
imbedded in the Latin maxim interest republicae u t s it fin is Utium (it concerns
the State that there be an end of litigation), is still good law in our jurisdiction
and part of our jurisprudence. There should be an end to litigation and the
Let the applicants be contented with some errors that might be in the
the respondents.
J. C. M. MWAMBEGELE
JUSTICE OF APPEAL
1.1 MAIGE
JUSTICE OF APPEAL
G. J. MDEMU
JUSTICE OF APPEAL
The Ruling delivered this 22nd day of April, 2024 in the presence of Mr.
Daniel H. Ngudungi, learned advocate, for the Applicants and Ms. Subira
Omary, learned advocate for the 1st, 2nd, 3rd, 4th and 5th Respondents, and in
R. W. CHAUIMGU
T . DEPUTY REGISTRAR
£/ COURT OF APPEAL
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