Mgeni Seif v. Mohamed yahaya Khalfani, Civ no 175 of 2001

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 104 OF 2008

MGENI SEIF………………………………………….……..APPLICANT

VERSUS

MOHAMED YAHAYA KHALFANI………………….....RESPONDENT

(Application for leave to institute revision out of time from the decision of the High Court of Tanzania at Dar es Salaam)

(Ihema, J.)

dated the 29^th day of November, 2004

in

Civil Case No. 175 of 2001

------

RULING

5 & 19 December, 2008

MUNUO, J.A.:

        The applicant, Mgeni Seif, through the services of Mr. Nyange, learned advocate, brought the present motion seeking extension of time to file Revision out of time on the grounds that:

“1.  The decision sought to be revised was procured fraudlently and illegally considering that the High Court had made earlier decisions against the respondent in Civil Revisions No. 68 of 1998 and No. 25 of 2000.

2.       The learned judge stayed execution of a decree which had already been executed and without jurisdiction.

3.       Civil Case No. 175 of 2001 in the High Court of Tanzania, the subject of revision was time barred.

4.       The decision of Ihema, J. in Civil Case No. 175 of 2001 is not supported by law, sense or reason.

5.       The applicant was bonafide and dilligently pursuing her right in the High Court until the 16^th day of June, 2008 when a ruling was delivered dismissing her objection proceedings”.

The application is supported by the affidavits deponed to by the applicant, Mgeni Seif, by her counsel Mr. Hebert Nyange in reply to the counter-affidavit of the respondent, Mohamed Yahya Khalfani and the supplementary affidavit of one Jumanne Mgunde, who is not a party to this application but was the defendant in Civil Case No. 175/2001, the subject of the intended Revision.

When the late Ibrahim Ngunde, the owner of the house on Plot 51 Block R, Iringa Street, Ilala, Dar es Salaam, passed away, the co-administrators Jumanne and Mohamed Ngunde obtained letters of administration in Kariakoo Primary Court Probate and Administration Cause No. 15 of 1985 in which the said primary court ordered sale of the material house, the proceeds of which would be distributed to the heirs.  On appeal, in the District Court of Ilala, in Civil Appeal No. 56 of 1986, the decision of Kariakoo Primary Court was reversed.  The District Court ordered that the heirs occupy the house as tenants in common.  According to the affidavits of the applicant and Jumanne Ngunde, the District Court did not settle the matter as it went on Revision in the High Court of Tanzania where Mnzavas, J.K. as he then was, upheld the decision of the District Court in Civil Revision No. 12 of 1987.

In May, 1991, as per para 9(4) of the affidavit of the applicant, Msumi, J. reviewed the decision in Civil Revision No. 12 of 1987 apparently in relation to a different suit, that is, Civil Case No. 164 of 1986 in the Court of Resident Magistrate at Kisutu, Dar es Salaam between Zanzibar State Trading Corporation and Miyunji General Supplies and Contractors.  Meanwhile the respondent applied in Civil Revision No. 68 of 1998 Jumanne Ngunde versus Ally Said to set aside the decision in Civil Appeal No. 56 of 1986 in Ilala District Court.  His subsequent attempts to repossess the suit house were unsuccessful.  Hence in May, 2001, as reflected at paragraph 10 of the affidavit of the applicant, the respondent instituted Civil Case No. 175 of 2001 in the High Court of Tanzania at Dar es Salaam seeking general and specific damages for being unlawfully evicted from the house in dispute.  The applicant who had purchased and was in occupation of the same was not a party to Civil Case No. 175 of 2001.  Per the Ruling, annexture MS 9 to the Notice of Motion, Ihema, J., on the 29^th November, 2004, held in the last paragraph which I quote verbatim:

“In the revision order this Court purported to correct a wrong decision by the primary court in connection with the administration of the estate of Ibrahim Ngunde.  And the wrong decision which the court specifically tried to correct is the sale of the house No. 42 fresh proceedings to seek declaratory orders to assert his apparent claim of right over House No. 10 Plot 51 Iringa Street Dar es Salaam.  In the meantime in the interest of justice I order stay of execution of the Ilala District Court decision in Civil Revision No. 3/1986 and restore the applicant/plaintiff [now the respondent, Mohamed Yahya Khalfani] in the suit premises to avoid waste and minimize loss of property.  Costs to follow the event.

                       Sgd. Ihema, J.

29/11/2004.”

Counsel for applicant vehemently faulted the learned judge for ordering stay of execution in Ilala District Court Civil Appeal No. 56 of 1986 which execution had already been conducted, and during which execution the respondent was evicted from the material house in April, 2001.  Mr. Nyange submitted that as a result of the learned judge’s stay order, the applicant who was not a party to the suit was wrongly evicted from her house.  Her efforts to file objection proceedings bore no fruit.  Not being a party to Civil Case No. 175 of 2001, the applicant could not appeal as of right either.  She became aware of the suit and stay order when she was evicted in the process of the restoration of the respondent in compliance with the learned judge’s order.  As she had no right of appeal, was not a party to the suit, but has a proprietary interest in the house in dispute, the applicant seeks extension of time to file revision proceedings under Section 4(3) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002.

The respondent appeared in person.  He stated in paragraph 2 of his affidavit in reply that he bought the house in dispute from the late Ibrahim Ngunde before he died so the decision of the learned judge in Civil Case No. 175 of 2001 is correct.  The application should be dismissed because it lacks merit, the respondent asserted.

The issue is whether there is sufficient ground for extending the period of applying for revision against the decision in Civil Case No. 175 of 2001.

In view of the fact that the applicant lost the objection proceedings in Civil Case No. 175 of 2001, and because she was not a party to the said suit, but is contesting the ownership of the house in dispute, not having a right of appeal, the only venue open for the applicant would be revision.  In those circumstances, there is justifiable cause for extending the period for applying for revision against the decision in Civil Case No. 175 of 2001.  In this, I find support in the Court’s decision in Halais Pro-Chemie versus Wella AG [1996] TLR 269.

I accordingly grant leave and extend the period of instituting revision proceedings in this Court out of time.  The intended Revision to be instituted by the 31^st January, 2009.

DATED at DAR ES SALAAM this 19^th day of December, 2008.

E. N. MUNUO

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(P. A. LYIMO)

DEPUTY REGISTRAR

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