aidan george nyongo vs magesse machenga others 2024 tzca 147 1 march 2024

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM fCORAM: SEHEL. J. A.. KENTE, J.A, And MASOUP, 3. A.) CIVIL APPLICATION NO. 205/01 OF 2022 AIPAN GEORGE NYONGO.................................. ............ .....APPLICANT

VERSUS MAGESSE MACHENGA..........................................................1st RESPONPENT COMMISSIONER FOR LANOS,............................................ 2nd RESPONDENT REGISTRAR OF TITLES...................................................... 3rd RESPONPENT ATTORNEY GENERAL............................. ........................... 4th RESPONPENT (Application for Review from the decision of the Court of Appeal of Tanzania, at Par es Salaam) fMwariia. Kerefu And Kente. 3J.A.1 dated the 9th day of March, 2022 in Civil Appeal No. 292 of 2017

RULING OF THE COURT 6th February & 1st March, 2024 SEHEL, J.A.: In this application, the Court is asked to review its decision in Civil Appeal No. 292 of 2017 dated 9th March, 2022. The application is brought by notice of motion and it is supported by an affidavit of one, George Nyongo, the biological father of the applicant. The application is made under the provision of rules 4 (1), 66 (1) (a) (b) and (c) and 66 (2) of the Tanzania Court of Appeal Rules (the Rules). l Briefly, the facts relevant to the present application are such that; the 1st respondent instituted a suit before the High Court of Tanzania, Land Division at Dar es Salaam (the High Court) against the applicant, the 2nd, 3rd and 4th respondents claiming, among others, ownership of a piece of land known and described as Plot No. 184 Mbezi Beach Area, Kinondoni Municipality, Dar es Salaam (C.T. No. 44379) (the disputed property). It was the 1st respondent's case that he bought the disputed property in March, 1995 from one Subira Kasimbilo who was originally allocated the disputed property through a Letter of Offer No. D/KN/A/12100/l/JNS dated 10th January, 1978 by the office of the Kinondoni District Commissioner. On the other hand, the applicant disputed the 1st respondent's claims and averred that, he was the rightful owner of the disputed plot having purchased the same from one, Ezack Zakaria. He averred that

then the Ministry of Lands and Human Settlements Development allocated the disputed property to Ezack Zakaria after revoking the Letter of Offer issued to Subira Kasimbilo who failed to pay the required fees and land rent. He further claimed that, after purchasing the disputed property, the applicant processed and obtained a Certificate of Title No. 49502 on 1st April, 1995. 2 Having heard the parties, the High Court observed that, there was double allocation of the disputed plot. Nevertheless, it was satisfied that the 1st respondent was lawful owner of the disputed property having bought it from Subira Kasimbilo the first grantee, and that, since the right of occupancy of Subira Kasimbilo had never been revoked, the same could not have been re-allocated to Ezack Zacharia. Therefore, the High Court decided the case in favour of the 1st respondent. Aggrieved, the applicant appealed to the Court vide Civil Appeal No. 292 of 2017. In its judgment, the Court concurred with the High Court that there was no evidence suggesting the revocation of Subira Kasimbilo's letter of offer, thus her title retained priority over any other subsequent offers. Following the dismissal of the appeal, the applicant has now preferred the present application for review on three grounds that: one, the decision was based on manifest error on the face of record resulting in the miscarriage of justice;

two, the applicant was wrongly deprived an opportunity to be heard; and three, the Court's decision is a nullity. The applicant also filed written arguments. 3 At the hearing of the application, Mr. Killey Mwitasi, learned advocate, appeared for the applicant, whereas, the 1st respondent was absent though duly served, in person, with the notice of hearing on 1st February, 2024. The 2nd, 3rd and 4th respondents had legal services of Messrs. Erigh Rumisha and Nzumbe Machunda, learned State Attorneys. Mr. Mwitasi first adopted the notice of motion, the affidavit in support of the application and the written submissions filed on 28th June, 2022 pursuant to rule 106 (1) of the Rules. Submitting on the first ground that there are manifest errors apparent on the face of record, Mr. Mwitasi contended that the Court failed to rule on the issue of 'win some lose some'. It was his submission that, in the entire judgment, the said issue was left undetermined. He referred us to page 8 of the impugned judgment where the Court said it will deal with the issue later in the judgment and at page 18 where the Court concluded its findings. He added that the principle of 'win some lose somd is part of our legal jurisprudence as it was applied in the case of Domina Kagaruki v. Farida F. Mbarak & 5 Others, Civil Appeal No. 60 of 2016 when the Court decided to order for the resurvey of disputed plots

no. 105 and 106 so that the same can be divided into three equal plots for the appellant, 1st and 2nd respondents and 4th respondent. On the same ground, the learned counsel for the applicant argued that there is another serious error on face of the record. He contended that the parties were not given an opportunity to address the Court on distinctions and similarities between 'the letter o f offer' and ' the right of occupancy. He contended that the two words have conferred different rights, privileges, duties/liabilities. To support his contention that the Court has obligation to invite parties to address on the issue, he cited to us the decision of this Court in the case of Jayantukumar Chandubhai Patel @ JETU Patel & 3 Others v. The Attorney General & Two Others, Civil Application No. 160 of 2016. It was his submission that section 10 of the Land Ordinance relates to the right of occupancy and it does not extend to the offer of the right of occupancy. Connecting to this, Mr. Mwitasi contended that the Court overlooked to cross check the contents of offer to the right of occupancy held by Subira Kasimbilo, exhibit PI as it differs with the one in the case of Mwajuma Mbegu v. Kitwana Amani [2004] T.L.R. 410 which the Court based its judgment on. Mr. Mwitasi went on to argue that there is another error. He contended that the Court made an assumption that the applicant

ordered the Government officials to harass the 1st respondent while there was no such evidence on the record. Relying on the case of Attu J. Myna v. 5 CFAO Motors Tanzania Limited, Civil Appeal No. 269 of 2021 that the court should not work on assumption, he implored the Court to review its decision. On the second ground that the applicant was not afforded an opportunity to be heard, Mr. Mwitasi argued that the parties were not heard on the distinction of the two phenomena; 'the fetter o f offef and 'the right o f occupancy'. He further contended that the applicant was denied a right to be heard because the authorities which were cited in the hearing of the appeal were ignored and/or not considered by the Court. On the last ground that the judgment is a nullity, Mr. Mwitasi argued that failure to determine the issue of 'win some iose some', made the judgment to be incomplete hence there was no valid judgment. He added that the judgment is a nullity as it worked on assumptions and defeated the rules of precedents. On his part, Mr. Rumisha who addressed the Court on behalf of the respondent prefaced his reply submissions by raising an objection on the affidavit supporting the motion. He contended that the notice of motion is supported by an affidavit of a stranger, one George Nyongo who was not a party in the appeal. He added that although in paragraph 1 of the 6 affidavit, the

deponent stated that the applicant had given him a Power of Attorney, such power is not annexed in the affidavit and neither was there an affidavit of the said Aidan George Nyongo to support his contention. He therefore urged the Court to find that the notice of motion is lacking the supporting affidavit and prayed to the Court for the application to be struck out with costs. In the alternative, Mr. Rumisha generally responded to all grounds for review. He contended that the grounds raised by the applicant are grounds of appeal as they do not fall squarely within the ambit of rule 66 of the Rules. He referred us to paragraphs 2, 3 and 11 of the affidavit and contended that these grounds invite the Court to revisit the evidential, legal and factual matters which were conclusively considered and determined by the Court. It was his submission that the applicant is asking the Court to sit in appeal against its own decision which is against the principle in review. To fortify his submission, he referred us to the case of The Grand Alliance Limited v. Mr. Wilfred Lucas Tarimo & 4 Others, Civil Application No. 229 of 2020 [2022] TZCA 541 (7 September, 2022; TANZLII) where the Court emphasized that the power for review is not an appeal in disguise and its purpose is not to provide a back door method to unsuccessful litigants to re-argue their case or seek a re­ appraisal of the entire

evidence on record. Mr. Rumisha further contended that, a manifest error on the face of record must be easily seen when someone runs and reads it. It does not require a long-drawn process of reasoning. To bolster his submission, he referred us to the case of The Hon. Attorney General v. Mwahezi Mohamed (as administrator of estate of the late Dolly Maria Eustace) & 3 Others, Civil Application No. 314/12 of 2020 [2020] TZCA 1828 (22 October, 2020; TANZL1I) where the Court cited the case of Chandrakant Joshubhai Patel v. The Repulic [2004] T.L.R. 218 to the effect that an error on the face of the record must be an obvious and patent mistake and not something which can be established by a long- drawn process of reasoning on points which there may conceivably be two opinions. For instance, the learned State Attorney pointed out that, in paragraph 11 of the affidavit, the applicant complained that the Court proceeded on incorrect exposition of the law regarding 'letter of offer"and 'the right o f o ccu p an cy Mr. Rumisha strongly argued that such a complaint is not a ground for review as the applicant is trying to solicit for an alternative conclusion than the one reached by the Court. The learned State Attorney concluded his submission by stating that there must be an end to every litigation, and that, the decision of this Court which is the highest court in the land should be

respected. Rejoining to the preliminary point of law, Mr. Mwitasi argued that Mr. George Nyongo who was knowledgeable with the matter was a competent and proper person to swear the affidavit which supported the notice of motion. He reasoned that, according to rule 66 (2) of the Rules, the mode of filing application for review is the same as for filing the application for revision, and that, rule 65 (3) of the Rules permits any other person or persons having knowledge of the facts to support the notice of motion. It was therefore his submission that the application is competent before the Court. To reinforce his submission, he referred the Court to the case of Tanzania Sewing Machine Co. Ltd v. Njake Enterprises Ltd (Civil Application No. 238 of 2015) [2015] T7CA 546 (16 December 2015; TANZLII). Rejoining on the merits of the application, Mr. Mwitasi acknowledged the position of the law in the cases cited by the learned State Attorney. However, he insisted that the grounds in the present application are grounds for review and that the applicant is not seeking the Court to sit 9 again on appeal. He thus beseeched us to consider the grounds and allow the application. Having heard the competing submissions, we wish to start with the preliminary point of law raised by the learned State Attorney that the application for review is incompetent for being supported by an affidavit sworn

by a stranger to the application. Rule 66 (2) of the Rules provides for the mode of filing an application for review. It states: "An application for review shall, subject to necessary modifications, be instituted in the same mode as a revision." With regards to the revision, rule 65 (1), (2) and (3) of the Rules provides: "(1) Save where a revision is initiated by the Court on its own accord' an application for revision shall be by notice o f motion which shall state the grounds o f the application. (2) The notice o f motion shall be signed by or on behalf o f the applicant. (3) The notice of motion shaii be supported by one or more affidavits of the applicant or 10 some other person o r persons having know ledge o f the facts. "[Emphasis added]. It follows then that, an application for revision, initiated by a party, has to be made by way of notice of motion supported by an affidavit stating the grounds for revision. Such notice of motion has to be signed by or on behalf of the applicant and it has to be supported by one or more affidavits of the applicant or some other person having knowledge of the facts. In the same way, in an application for review, with some necessary modification, an applicant is required to file an application by way of a notice of motion supported by an affidavit of the applicant or some other person or persons having knowledge of the facts. In the

case of Tanzania Sewing Machine Co. Ltd (supra) the Court considered the import of rule 49 (1) of the Rules whose wording is almost similar to rule 65 (3) of the Rules. Essentially, rule 49 (1) of the Rules requires every formal application to the Court to be supported by one or more affidavits of the applicant or of some other persons or persons having knowledge of the facts. In that application, an objection was raised on the locus standi of Job Mpingwa, the administrator of the Managing Director of the applicant, who deposed an affidavit in support of the application for stay of execution. Regarding the capacity of Job Mpingwa, the Court said: " RU/e 4 9 (i) o f the Rules is very much dear that any person having knowledge o f the facts can swear an affidavit in support o f a forma! application. We do not have any further interpretation other than that stated in that provision. We are o f the view that if there was a need to restrict persons other than parties to an application it should have been clearly stated therein. Hence/ ... according to Rule 49 (1) o f the Ruies Job Mpigwa having knowledge o f the facts was competent to swear the affidavit in support o f the application." It follows then that an affidavit in support of the notice of motion may, as well, be deponed by other person or persons provided that such advocate or agent is knowledgeable of the facts of the

matter. It is trite law that a party to the application or an advocate duly instructed by a party or a Principal Officer is not required to furnish proof of authority to depone the affidavit. It is in that respect, in the case of Tanzania Sewing Machine Co. Ltd (supra), the applicant, Job Mpingwa, who had knowledge of the facts of the application was competent to swear the affidavit in support of an application for stay of execution. 12 Nonetheless, where an administrator of the estate of the deceased party commences proceedings in a representative capacity, the instrument constituting his appointment must be pleaded and attached to the application. This position was reiterated in the case of Ramadhani Omary Mbuguni (A legal representative of the late Rukia Ndaro) v. Ally Ramadhani & Another (Civil Application No. 173/12 of 2021) [2022] TZCA 267 (12 May, 2022; TANZLII) that: "Letters o f administration being an instrument through which the applicant traces his standing to commence the proceedings; was in our view an essentia! ingredient o f the application in whose absence the Court cannot have any factuai basis to imply the asserted representative capacity. It is now a settled law that, where, like the instant case, a party commences proceedings in representative capacity, the instrument constituting the appointment must be pleaded and attached. Failure to plead and attach the

instrument is a fatal irregularity which renders the proceedings incompetent for want o f the necessary standing." See also the case of Ally Ahmed Bauda (Administrator of the Estate of the Late Amina Hossein Senyange) v. Raza Hussein 13 Ladha Damji and Others (Civil Application No. 525/17 of 2016) [2020] TZCA 1763 (2 September, 2020; TANZLII). Further, it has to be well understood that where there are two or more applicants in the application, the notice of motion has to be supported by all applicants. In the case of N.B.C. Holding Corporation & Another v. Agricultural & Industrial Lubricants Supplies Ltd (Civil Application No. 42 of 2000) [2001] TZCA 5 (9 April, 2001; TANZLII), the notice of motion was jointly filed by the applicants but it was supported by one affidavit. The Court held that the omission to file the affidavit of the other applicant rendered the application incompetent before the Court. Accordingly, the Court struck it out with costs. Guided by the above position of the law and in the light of the record before us, we find that the present application is competent before us. This is because paragraph 1 of the affidavit supporting the notice of motion provides: "That, I am the applicant's biological father,■and that, an applicant had granted me a Power of Attorney to act in his behalf on this case and has further instructed me to continue acting on his behalf. I

further state that the applicant is currently living and working in Australia, and it is me who has 14 been handling this case on his behalfjust from the High Court, hence conversant with the facts I am deposing herein." From the above deposition, Mr. George Nyongo is not the applicant. He is the father of the applicant who deponed that he has knowledge of the facts deponed therein. Given that in this application the applicant's notice of motion was supported by the affidavit of any other person who has knowledge of the facts, we are satisfied that Mr. George Nyongo was competent to swear the affidavit supporting the application of his son, one, Aidan George Nyongo, who resides in Australia. Accordingly, we overrule the preliminary point of law raised by the learned State Attorney. Having overruled the objection, we turn to the merit of the application. The central issue arising from the applicant's application and the submission by the counsel for the parties is whether the grounds raised by the applicant warrant the Court to review its own decision. We start with the first ground where the applicant claimed that there is a manifest error in the judgment of the Court. The position of the law regarding an error manifest on the record as envisaged under rule 66 (1) (a) of the Rules is now settled. Generally, an applicant must establish three things. First that, there was an

error. Secondly, such error must be 15 manifest on the face of record. Lastly, the error must have resulted in miscarriage of justice. The manifest errors according to the counsel for the applicant are three-fold. One, the Court left undetermined the alternative remedy of ' win some lose somd, two, the Court wrongly equated the letter of offer to the right of occupancy, and three, the Court set bad precedent when it held that the applicant was commanding government officials. Mr. Mwitasi tried to impress upon us to find that these complaints fall within the ambit of rule 66 (1) (a) of the Rules which entails presence of manifest error apparent on the face of record resulting in miscarriage of justice. We have no flicker of doubt that these are not manifest errors apparent on the face of the record. Indeed, at page 8 of the judgment, the Court said that it will come back to the alternative prayer made by the learned counsel for the appellant (the applicant herein). Here, we find it apposite to reproduce the extract of the impugned judgment, thus: "... what is encouraging and particularly significant is the appellants graceful acceptance o f the first respondent's title over the same plot hence his call to the court to revert to the path o f 'win some lose some' to find what in his view is a fair and just 16 solution to this dispute. We shall come back to this alternative prayer

by the appellant at a later stage o f this judgment." Our revisit of the impugned judgment, we observed that at pages 10 to 11 of our judgment, the Court considered the alternative prayer together with the submission of the learned State Attorney. At the end, the Court found no reason to disturb the decision of the High Court. It thus upheld the High Court's decision. In the present application, the applicant is still inviting the Court to consider again the alternative prayer. In the case of Karim Kiara v. The Republic, Criminal Application No. 4 of 2007 (unreported) we quoted the decision of the erstwhile East Africa Court of Appeal in Lakhamshi Brothers Ltd v. R. Raja & Sons [1966] 1 E.A. 313 that: "The court had inherent jurisdiction to recall its judgment in order to give effect to its manifest intention on to what clearly would have been the intention o f the court had some matter not been inadvertently omitted, but it would not sit on appeal against its own judgment in the same proceedings."(emphasis added) In the similar vein, we find that the applicant is inviting the Court to seat on appeal through a back door which we are not prepared to allow as 17 the issue oVwin some lose somd was fully considered and determined by the Court. Equally untenable is the complaint that the Court equated the letter of offer to the right of occupancy and/ with the letter of occupancy.

The issue of letter of offer issued to Subira Kasimbilo and the right of occupancy of the applicant and of the 1st respondent were matters which the applicant properly raised in Civil Appeal No. 292 of 2017 and adequately argued them during the hearing of appeal. In the appeal, it was fully argued by the applicant that the letter of offer issued to Subira Kasimbilo automatically ceased due to her failure to pay land rent. Nonetheless, the Court rejected the counsel's argument for the reason that there is no law to the effect that one's offer of right of occupancy terminates automatically upon failure to comply with conditions. At the end, the Court upheld the decision of the High Court. To advance the same complaint in the application for review is a serious misconception of the underlying principles for review. The power of the Court in review is limited to re-examination and reconsideration of its judgment with a view to correct or improve it if it is proved by an applicant that the judgment was arrived as a result of a manifest error on the face of record which resulted in the miscarriage of 18 justice; or a party was wrongly deprived of an opportunity to be heard; or the court's decision is a nullity; or the court had no jurisdiction to entertain the case; or the judgment was procured illegally, or by fraud or perjury- see: Rule 66 (1) of the Rules. It does not extend into

re-considering its own decision on merit or else it would amount to the Court sitting in appeal against its own decision which is not permissible-see: James Sharifu v. The Republic, Criminal Application No. 1 of 2015 [2017] TZCA 248 (6 July, 2017; TANZLII). Consequently, it was a total misconception by the applicant to advance at the review stage the same grounds and expect the Court to arrive to a different conclusion. Regarding the alleged error that the Court made assumption, we find that this is not a manifest error on the face of record as it requires a long- drawn processing of reasoning. In the case of Chandrakant Joshubhai Patel v. The Republic (supra) we defined the term "manifest error on the face of record" that: "An error apparent on the face o f the record must be such that can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be 19 two opinions ....A mere error o f law is not a ground for review under this rule. That a decision is erroneous in law is not ground for ordering review. It must further be an error apparent on the face of the record. The tine o f demarcation between an error simpiiciter, and an error on the face o f the record may sometimes be thin. It can be said o f an error that it is apparent on the face o

f the record when it is obvious and self-evident and does not require an elaborate argument to be established...," [Emphasis added]. Consequently, we are satisfied that the complaint concerning manifest error on the face of record is not merited for review as items 1 (i) (ii) and (iii) in the notice of motion are not within the ambit of rule 66 (1) (a) of the Rules. We now turn to the complaint that the applicant was deprived an opportunity to be heard. Having revisited the impugned judgment, we find that in the appeal, the applicant was represented by the learned counsel. His counsel had an opportunity to address the Court on when and how the applicant came into possession of the disputed property. Additionally, we observe that Mr. Mwitasi is faulting the style used by the Court in addressing the grounds of appeal. As stated earlier, when the 20 Court was addressing the issue of ownership, it traces back the letter of offer issued to Subira Kasimbilo and the purported title deed issued to Ezack Zakaria; at the end it found that the title of Subira Kasimbilo was never revoked. On the failure to consider cases cited, we find this complaint is inconsequential since judgment writing is a matter of style. Accordingly, we find the complaints in ground 2 (i) and (ii) are baseless. The third ground is predicated upon rule 66 (1) (c) of the Rules that the decision is a nullity. On

this, we wish to be very brief. What entails 'a nullity decision' was considered in the case of M/S Serengeti Road Services v. CRDB limited, Civil Application No. 12 "A" of 2011 (unreported), the Court said: "In its ordinary sense a decision is said to be a nullity if it is shown that the impugned order was delivered by a court not competent to deliver it or was obtained by fraud or collusion. " The Court stated that: "A decision may be wrong; it may be based on a misapprehension o f the law, or a wrong application o f the court's discretion, but it does not make that decision a nullity." 21 In the instant application, the complaint by the applicant is not premised on allegation of fraud or collusion. Neither is there a complaint that the Court had no jurisdiction to determine the appeal. We are, therefore, satisfied that ground 3 (i) and (ii) is not a ground for review. In the upshot, we find the application has no merit. We therefore dismiss it with costs. DATED at DAR ES SALAAM this 29th day of February, 2024. B. M. A. SEHEL

JUSTICE OF APPEAL P. M. KENTE

JUSTICE OF APPEAL B. S. MASOUD

JUSTICE OF APPEL The Ruling delivered this 01st day of March, 2024 in the presence of Mr. Killey Mwitasi, learned counsel for the applicant, Mr. Peter Nyangi holding brief for Mr. Dismas Raphael, learned counsel for the 1st Respondent and Mr. Erigh Rumisha, learned State Attorney for the 2nd, 3rd and 4th Respondents; is hereby certified as a true copy of the original. 22