IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM
(CORAM: WAMBALI. 3.A.. MWANDAMBO. 3.A., And MASHAKA, J.A.^
CIVIL APPLICATION NO. 362/17 OF 2018
SUDI KHAMIS SUDI................ ..................................... 1st APPLICANT
A.K. MAMBA t/a MAMBA AUCTION MART CO. LTD........... 2nd APPLICANT
NONDO KALOMBOLOLA t/a NJ. PETROLEUM S.P.R.L....... 3rd APPLICANT
AMANI ETCHA.............................................................4th APPLICANT
VERSUS
MAUREEN GEORGE MBOWE JILIWA...................... .....1st RESPONDENT
MAUREEN GEORGE MBOWE as a guardian of
BARICK BECKHAM JILIWA and
BARACK GEORGE JILIWA (minors).................... ..... 2nd RESPONDENT
TWIGA BANCORP LIMITED...................................... 3rd RESPONDENT
SAID MUSA MSWAKI...............................................4™ RESPONDENT

(Application for revision of the proceedings, ruling and orders of the

High Court of Tanzania (Land Division), at Dar es Salaam)
fMzuna, J.)
dated the 8thday of June, 2018
in
Misc. Land Application No. 100 of 2018

RULING OF THE COURT

9th & 30th July, 2021

MWANDAMBO, J.A.:

By way of notice of motion, the applicants have moved the

Court under section 4 (3) of the Appellate Jurisdiction Act [Cap 141

R.E. 2002-now R.E. 2019] (the AJA) together with rule 65 (1), (2), (3)

and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for

revision. They are seeking an order of the Court to quash the

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proceedings, ruling and orders of the High Court in Miscellaneous

Land Application No. 100 of 2018 and Land Case No. 27 of 2018.

The applicants have raised six grounds in support of the

application together with the averments of the affidavits of Sudi

Khasim Sudi, the first applicant and Roman S.L. Masumbuko, learned

advocate for the third and fourth applicants. The first and second

respondents are resisting the application.

The tale behind the application is not too complicated to

narrate. It goes as follows. The applicants were respondents in

Miscellaneous Land Application No. 100 of 2018; an interlocutory

application arising from Land Case No. 27 of 2018 for restraint orders

against eviction from a house on Plot No. 104 Block B, Mikocheni

area, Kinondoni Municipality pending hearing and determination of the

main suit. Resisting both the suit and application, the applicants

lodged a notice of preliminary objections on points of law consisting of

four grounds to wit: lack of locus standi; res judicata, want of

jurisdiction and abuse of the court process. Upon hearing the

arguments for and against the objections, the High Court (Mzuna, J.)

found no merit in any of them. He dismissed them all in a ruling

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delivered on 8th June, 2018. Aggrieved by that ruling, the applicants

are now asking the Court to revise the proceedings, application, ruling

and order dated 8th June, 2021.Their application is premised on the

following grounds reproduced verbatim: -

1. "That the Trial Judge erred in iaw and fact in holding

that the 1st and 2nd Respondents had locus [standi] in
initiating proceedings in the High Court (Land Division)
without regard to the decision o f the High Court
(Commercial Division) in Misc. Commercial Application
No. 60 o f 2017.

2. That the Trial Judge erred in law and fact in holding

that the proceedings in Misc. Land Application No. 100
o f 2018 and Land Case No. 27 o f 2018 are not res
judicata to Misc. Commercial Application No. 60 of
2017.

3. That the Trial Judge erred in law and fact in holding

that the High Court (Land Division) had jurisdiction to
deal with the proceedings relating to the house situated
on Plot No. 104, Block" B" Mikocheni Area in Kinondoni
Municipality contrary to the provisions o f Section 38 (1)
o f the Civil Procedure Code [Cap 33 R.E. 2002].

4. That the Trial Judge erred in law and fact in holding

that the suit is not time barred as it was not
challenging execution contrary to the provisions o f
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 Section 6(b)(i) & (ii) and item 5 to the Schedule to the
Law o f Limitation Act [Cap 89 R.E. 2002].
5. That the Trial Judge erred in law and fact by ruling that
the application was not omnibus and overtaken by
events by the decision o f Hon. Wambura J in Misc.
Land Application No. 155 o f 2018 as the transfer o f the
Title had already been effected to the First Applicant by
the Registrar o f Titles (not a party to the proceedings).

6. That the Trial Judge erred in law and fact by failing to

rule that the proceedings in High Court (Land Division)
are an abuse o f court process as there are pending
execution proceedings in the High Court (Commercial
Division)."
Not amused, without prejudice to their opposition against the

merits by way of an affidavit in reply, the first and second

respondents acting through Mr. Kephas Simon Mayenje, learned

advocate lodged a notice of preliminary objections challenging the

competence of the application on two grounds namely: -

1. The application contravenes the provisions o f section 5(2)

(d) o f the AJA which prohibits appeals or applications for
revision from preliminary or interlocutory decisions.

2. The affidavits supporting the application are incurably

defective for containing legal arguments, conclusions and
prayers.
 Mr. Mayenje argued both points during the hearing during which

Messrs. Killey Mwitasi and Roman Masumbuko both learned advocates

represented the first, the third and fourth applicants respectively. Mr.

Adam K. Mamba, Principal Officer of the second applicant appeared in

person.

Addressing the Court on the first ground, Mr. Mayenje argued

that the impugned ruling sought to be revised in this application gave

rise to an interlocutory order which did not have the effect of finality;

it did not determine the suit before the High Court. The learned

advocate contended that section 5 (2) (d) of the AJA prohibits appeals

or applications for revision from orders like the impugned order and

thus the Court has no jurisdiction to entertain the application. Several

decisions of the Court were cited in support of the point raised

namely; MIC (T) Limited & Others v. Golden Globe

International Services Limited, Civil Application No. 1 of 2016 and

Director of Public Prosecutions v. Faridi Hadi Ahmed and 36

Others, Criminal Appeal No. of 2021 (both unreported). The learned

advocate cited the decisions to reinforce the proposition that no

appeal or application for revision lies from an interlocutory order

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which has no effect of finality of the suit or matter before the High

Court. Specifically, Mr. Mayenje placed emphasis on the latter decision

to underscore the definition of an interlocutory order and whether the

impugned order fell into that definition. On the basis of the foregoing,

Mr. Mayenje argued that since the impugned ruling emanated from

preliminary objections which left Miscellaneous Land Application No.

100 of 2018 intact, the Court has no jurisdiction to determine the

instant application. He thus moved the Court to strike out the

application with costs.

Mr. Innocent Mhina, learned advocate who appeared for the

third respondent was in support of the submissions by Mr. Mayenje

without more.

Responding, Mr. Mwitasi was emphatic that the preliminary

objection was misconceived. According to him, the objection was

based on erroneous interpretation of section 5 (2) (d) of the AJA. The

learned advocate argued that section 5 (2) (d) of the AJA ought to be

interpreted liberally so as to distinguish between interlocutory orders

and confusing proceedings in line with the Court's decision in Stanbic

Bank Tanzania Limited v. Kagera Sugar Limited, Civil

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Application No. 33 of 2012 (unreported). Elaborating, Mr. Mwitasi

contended that the application is not against just the order but the

whole proceedings of the High Court with a view to averting collision

of two conflicting orders of the High Court, Commercial Division and

the Land Division. He thus moved the Court to overrule the

preliminary objection. However, he was too economic to elaborate in

what way the impugned order dismissing the preliminary objections

was capable of colliding with any other order of the High Court in

relation to the disputed property.

Mr. Masumbuko had similar line of argument with the learned

advocate for the first applicant. Essentially, the learned advocate

acknowledged that the ruling in Miscellaneous Land Application No.

100 of 2018 resulted into an interlocutory order. However, he argued

that the applicants approached the Court by way of revision because

the order was problematic on several fronts namely; one, it had the

effect of terminating execution proceedings before the Commercial

Court involving the same property which will not augur well with

orderly administration of justice underscored in Arusha Planters

and Traders Ltd & Others v. Eurafrican Bank (T) Ltd, Civil
Appeal No. 78 of 2001 (unreported). Two, it had the effect of

conflicting with the order made by the Commercial Court and thus

susceptible to revision on the authority of Consolidated Holding

Corporation v. Mazige Mauya & Another, Civil Appeal No. 126 of

2005 and Mohamed Enterprises (T) Limited v. Masoud

Mohamed Nasser, Civil Application No. 33 of 2012(both

unreported).

The learned advocate distinguished the cases cited by Mr.

Mayenje; MIC (T) Ltd & Others v. Golden Globe International

Services Ltd and DPP v. Faridi Hadi Ahmed &. 36 Others (supra)

as irrelevant to the instant application. In particular, the learned

advocate argued that the latter case involved a challenge on an

interlocutory order in a criminal case which was not the same issue in

the instant application. He urged the Court to overrule the preliminary

objection and proceed with the hearing of the application on merits.

Otherwise, the learned advocate contented that, in the unlikely event

the preliminary objection will carry the day, the Court should

nonetheless, invoke its jurisdiction to revise impugned ruling and

order in the peculiar circumstances of the instant application. He

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sought reliance for this proposition from our decision in Tanzania

Heart Institute v. The Board of Trustees of National Social

Security Fund, Civil Application No. 109 of 2008 (unreported).

Mr. Mayenje had his final word by way of rejoinder. As to the

submission by Mr. Mwitasi, the learned advocate brushed off the

alleged erroneous interpretation of 5 (2) (d) of the AJA and argued

that the Court's decision in Stanbic Bank v. Kagera Sugar Ltd

(supra) was irrelevant in so far as the contest in the instant

application is limited to the ruling rather than the entire proceedings

of the High Court.

On the other hand, the learned advocate countered the

submissions by Mr. Masumbuko and contended that; one, they

focused on merits rather than addressing the essence of the

preliminary objection with regard to the issue of finality of the

impugned order; two, the Court's decision in Arusha Planters Ltd

v. Eurafrican Bank (T) Ltd, (supra) was distinguishable because

the Civil Procedure Code [Cap. 33 R.E. 2019], allows a party to

institute a separate suit to establish his right consistent with the

decision of the High Court (Mruma, J.) in Miscellaneous Commercial

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Case No. 60 of 2017. Similarly, Mr. Mayenje argued that the decision

in Tanzania Heart Institute v. The Board of Trustees of

National Social Security Fund (supra) is irrelevant because the

application for revision arose from the merits of the impugned ruling

of the High Court which is distinct from the instant application which

has arisen from the High Court's determination of preliminary

objections leaving Miscellaneous Land Application No. 100 of 2018

intact. He wound up his submissions inviting the Court to sustain the

objection and strike out the application with costs. So much for the

background and counsel's arguments for and against the notice of

preliminary objection in ground one.

Our starting point is section 5 (2) (d) of the AJA which

stipulates: -

"No appeal or application for revision shall He

against or be made in respect o f any preliminary
or interlocutory decision or order o f the High
Court unless such decision or order has the effect
o f finally determining the suit."
The learned advocates are in agreement on the import of the

section that it bars appeals and applications for revision from

interlocutory decisions which do not have a finality of the suit before

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the High Court. The test on what constitutes a final order determining

the suit was discussed in Tanzania Motor Services Ltd and

Others v. Mehar Singh t/a Thaker Singh, Civil Appeal No. 115 of

2005 [2006] TZCA 5 at www.tanzilii.orQ in which the Court quoted

with approval a passage from the judgment of the Privy Council by

Lord Alverston in Bozson v. Artrincham Urban District Council

[1903] 1 KB 547, at page 548 thus: -

"It seems to me that the real test for

determining this question ought to be this:
Does the judgment or order, as made, finally
dispose o f the rights o f the parties? I f it does,
then I think it ought to be treated as a final
order; but if it does not, it is then, in my
opinion, an interlocutory order".

That passage was quoted in our recent decision in DPP v. Farid

Hadi Ahmed (supra) as well as in Murtaza Ally Mangungu v. The

Returning Officer for Kilwa and Two Others, Civil Appeal No. 80

of 2016 (unreported). The central issue for our determination is; did

the order dismissing the preliminary objections dispose of that

application or the suit from which it was pegged? Mr. Mayenje argued,

and we think correctly so, that all what Mzuna, J did was to dismiss or

ii
overrule the applicants' objections leaving the application intact.

Indeed, apart from the dissimilarity in the factual background, the

nature and effect of the order in the instant application is not

materially different from the order which gave rise to the application

for revision in MIC (T) Limited & Others v. Golden Globe

International Services Limited (supra). That application arose

from an order of the High Court in which a High Court refused to

recuse from presiding over the matter before him. The Court

sustained a preliminary objection against the competence of the

application premised under section 5(2) (d) of the AJA upon being

satisfied that the impugned interlocutory order did not have the effect

of finality considering that the suit was not extinguished by the refusal

of the presiding judge to recuse himself. By parity of reasoning, it

would have been strange and indeed unusual for the impugned order

in the application under our consideration to have determined the

application instituted by the respondents seeking injunctive orders

against the applicants. Logic and commonsense dictate that it would

have been the respondents complaining against dismissal of their

application had the High Court sustained the applicants' preliminary

objections rather than the applicants.

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 Both Mr. Mwitasi and Mr. Masumbuko impressed upon us that

the order had a finality effect because it had the effect of terminating

execution proceedings before the Commercial Court. With respect, we

do not share the same view with the learned advocates the more so

because what is contemplated under section 5 (2) (d) of the AJA is

not any suit as the learned advocates would have us hold. In our

view, the term suit here is confined to a suit from which the impugned

order emanates. We are unable to read anything in section 5 (2) (d)

of the ADA suggesting that it is that wide to cover suits outside the

confines of the suit the subject of the impugned order. In any case,

we find it difficult comprehending the argument in what way the order

dismissing the preliminary objections could have conflicted with an

order for execution in another case.

Without getting into the nitty gritty of the grounds, unlike in

Stanbic Bank (T) Ltd case (supra) in which the complaint was

against the propriety of the proceedings, orders of the High Court,

being confusing, the scope of the instant application is limited to

contesting the correctness of the ruling. For ease of reference, the

notice of motion in Stanbic Bank's case stated: -

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 " The applicant shall move the honourable Court
to examine and revise the proceedings
before the High Court, Commercial case No. 51
o f 2006 and subsequently issue appropriate
orders and directions to re-establish within
those proceedings propriety, consistency,
rationality, and credibility as
behaves(sid) the trials of civil suit (and
any other matters) in the High Court".
(Emphasis added).
It is from that perspective the Court took the view that in

exceptional circumstances, it can revise proceedings of the High Court

notwithstanding the existence of a right to appeal relying on its

previous decisions in VIP Engineering & Marketing Limited v.

Mechmar Corporation (Malaysia) Berhard of Malaysia, Civil

Application No. 163 of 2004, SGS Societe General De Surveillance

S.A. v. VIP Engineering Marketing Limited, Civil Application No.

84 of 2000 (both unreported) and Fahari Bottlers Limited &

Another v. The Registrar of Companies & Another [2000] T.L.R.

102.

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 We are unable to accept the invitation to treat the instant

application as falling in the category of exceptional circumstances

discussed in the above cases.

Equally misconceived is the argument advanced by Mr.

Masumbuko regarding the effect of the impugned order to the

execution proceedings before the Commercial Court citing several

cases to bolster his submissions to wit; Mohamed Enterprises (T)

Limited v. Masoud Mohamed Nasser and Arusha Planters and

Traders Ltd & Others v. Eurafrican Bank (T) Ltd (supra). We say

so because, as correctly submitted by Mr. Mayenje, those cases are

not relevant to the determination of the preliminary objection. By and

large they are relevant to the merits of the application which is not

the concern of this ruling.

To recap, the cases referred to in this ruling are just a few

among various decisions stressing the prerequisites before a litigant

can access the Court to exercise its jurisdiction and revise the

proceedings and orders of the High Court under section 4 (3) of the

A3A. It is plain from the cases we have made reference to, the Court's

revisional jurisdiction is not open ended. It is exercisable subject to

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section 5 (2) (d) of the AJA which prohibits revision from interlocutory

orders/decisions which do not have a finality effect. That means that a

litigant who seeks to move the Court to exercise its revisional

jurisdiction must satisfy it that his application is not barred by section

5 (2) (d) of the A]A. Failing which, he must satisfy the Court that his

application falls in to the category of exceptional circumstances in the

light of the Court's decisions in Fahari Bottlers Ltd, VIP

Engineering & Marketing Ltd v. Mechmar Corporation

(Malaysia) Berhad of Malaysia, SGS Societies Generate De

Surveillance S.A v. VIP Engineering and Marketing Ltd(supra).

The applicants have not met either of the conditions. That being the

case, the Court lacks jurisdiction to revise the impugned order under

section 4 (3) of the AJA.

We heard Mr. Masumbuko urging us to revise the impugned

order in the unlikely event we sustain preliminary objection on the

authority of Tanzania Heart Institute v. The Board of Trustees

of National Social Security Fund (supra). We have seen no reason

to go that far because the prevailing circumstances in the two cases

are not similar. First and foremost, it was clear in Tanzania Heart

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Institute that an eviction order against the applicant was made

prematurely; before the completion of pleadings and framing of the

issues. Secondly, it was obvious in that case that in any event the

eviction order was not one of the reliefs sought in the suit before the

High Court. The Court exercised its revisional jurisdiction suo motu

under section 4 (3) of the ADA despite striking out the application

since it was satisfied that the court process culminating into the

eviction order was irregular; it was short circuited, so to speak. That is

not the case here where the complaint is largely against the

continuation of the hearing and determination of the application

before the High Court following its order dismissing the applicants'

preliminary objections.

To conclude, we sustain the first ground in the notice of

preliminary objections being satisfied that the applicants have not

satisfied the Court that their application is not barred by section 5 (2)

(d) of the ADA neither have they placed themselves within the

exceptional circumstances to enable the Court exercise its jurisdiction

under section 4(3) of the AJA. Since the first ground in the notice of

17
preliminary objections is sufficient to dispose the application, we find

it superfluous dealing with the second ground.

In the event and for the foregoing reasons, we strike out the

application with costs.

Order accordingly.

DATED at DAR ES SALAAM this 28th day of July, 2021.

F. L. K. WAMBALI
JUSTICE OF APPEAL
L. J. S. MWANDAMBO
JUSTICE OF APPEAL
L. L. MASHAKA
JUSTICE OF APPEAL
The Ruling delivered this 30th day of July, 2021 in the presence

of Mr. Killey Mwitasi learned counsel for the 1st applicant, and also

holding brief of Mr. Roman Masumbuko, the learned counsel for the

3rd and 4th applicants, 2nd applicant present in person, Mr. Kephas

Muyenje the learned counsel for the 1st and 2nd Respondents and Mr.

Innocent Mhina the learned counsel for the 3rd respondent, and 4th

respondent in the absence, is hereby certified as a true copy of the

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