ALKEMIST WORLDWIDE LIMITED SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO. 10893 OF 2024 (Arising from the Order and Ruling of this Court (L. Hemed. J) dated 10h day April 2024 in Land Case No. 502 of2024) ALKEMIST WORLDWIDE LIMITED.................................... APPLICANT VERSUS HOTEL SEA CLIFF LIMITED........................................... RESPONDENT RULING lffh & 30th My, 2024 L. HEMED, J. By the ruling dated 16th April 2024, this court did strike out Land Case No. 502 of 2023 on the ground that the plaint was defective for want of Board resolution of the plaintiff. The said ruling followed after determination of the preliminary objection which was raised by the counsel for the Defendant, the herein Respondent, HOTEL SEA CLIFF LIMITED. It appears that ALKEMIST WORLDWIDE LIMITED, the Applicant herein was aggrieved by the said ruling. She opted to present the i MEMORANDUM OF REVIEW under order XLII Rule 1(1) (a), (b) (c) and (3), sections 78 (1) (a) (b) and 95 of the Civil Procedure Code [Cap 33 R.E 2019] on the following ground: - "1. That, this Honourable Court manifestly erred in law and fact by striking out the suit for mere absence of the board resolution contrary to the undisputed position of law as enshrined by the Court of Appeal in the cases of MOHAN'S OYSTERBAY DRINKS LIMITED vs. BRITISH AMERICAN TOBACCO KENYA LIMITED CIVIL APPLICATION NO 70/01/OF 2022 COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ( unreported), (Mwandambo, Kihwelo and Mgonya, JJJ A) and SIMBA PAPERS CONVERTERS LIMITED VS PACKAGING AND STATIONERY MANUFACTURERS LIMITED AND ANOTHER CIVIL APPEAL NO. 280 OF 2017 COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (unreported, (Mugasha, Mwandambo andMaige, JJJA)" On 7th June 2024, the counsel for the Respondent presented a Notice of preliminary objection on the following points of law that: - "1. This, Honourable Court lacks jurisdiction to entertain the Application due to the reason that: - 2 i. The Court is functus officio to determine the application. ii. The application is an abuse of the court process for contravening a mandatory provision ofsection 78 (2) of the Civil Procedure code Cap 33[R.E 2019]. (sic). Hi. The Application is incompetent for being an appeal in disguise." Parties appeared on 12th June 2024 where the court directed the preliminary objection to be heard by way of written submissions. Parties complied with the directed filling schedule. In arguing the objection, Mr. Said Hanya, learned advocate, acted for the Respondent while the applicant enjoyed the service of Mr. Paul Kaunda, learned advocate. I have keenly read the rival submission which I have opted not to reproduce them. Nonetheless, I will be referring to them in the course of assessing the merit of the preliminary objection. The question is whether this court has jurisdiction to entertain this kind of application. Generally, under section 78 (1) and Order XLII Rule 1 of the Civil Procedure Code, [ Cap 33 R.E 2019] the court has jurisdiction to review 3 its previous ruling. However, Order X LII Rule 1 of the CPC provides for conditions under which review can be preferred. It provides thus: - "...and who, from the discovery ofnew and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, derive to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the court which passed the decree or made the order." According to the above proviso cited and reproduced there are three (3) conditions for one to prefer for a review of decision or order of the court under section 78 and order X LII of the Civil Procedure Code (supra). One, it must be established that there is a discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order was made. 4 Two, where it is established that there is some mistakes or errors apparent on the face of the record, and, three, there is any other sufficient reason for the court to review its decree or order made. I have managed to extensively read the decision of the Court of Appeal of Tanzania cited by the Counsel for the Respondent, in Golden Globe International Service and Another Vs. Millicon (Tanzania) N. V and Another, Civil Application No. 195/01 of 2017. In the said decision, the Court of Appeal reproduced principles guiding review as were stated by the African Court of Justice (Appellant Division - Arusha) in the case of Angella Amudo vs The Secretary General of the East African Community, Civil Application No. 4 of 2015, thus: - "(a) The principle underlying a review is that the court would not have acted as it had, if all the circumstances had been known... (b) There are definite limits to the exercise of the power ofreview. The reviewjurisdiction is not by way of an appeal. The purpose of review is not to provide a back door method to unsuccessful litigants to re- argue their case. Seeking the re­ 5 appraisal of the entire evidence on record for finding the error, would amount to the exercise of appellate jurisdiction which is not permissible... (c) The power of review is limited in scope and is normally used for correction of a mistake but not to substitute a view in law. This is because no judgement however elaborate it may satisfy each of the parties involved to the full extent... (d)... (e) In review jurisdiction, mere disagreement with the view of the judgment cannot be ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenges the impugned judgement in the guises that an altenative view is possible under the review jurisdiction... (f) There is a dear distinction regarding the effect of an error on the face of the record and an erroneous 6 view of the evidence or law. An erroneous view justifies an appeal. Therefore the power of review may not be exercised on the ground that the decision was erroneous on merit... (g) It will not be sufficient ground for review that anotherjudge would have taken a different view. Nor can it be a ground for review that the Court preceded on incorrect exposition of the law... (h)A court will not sit as a Court ofappeal from its own decisions, nor will it entertain applications for review on the ground that of the parties in the case conceived himself to be aggrieved by the decision. It would be intolerable and most prejudicial to the public interest if cases once decided by the court could be re- opened and re- heard... (i ) The term 'mistake or error on the face of the record' by its very connotation signifies an error which is evidence per se from the record of the case and does not require detailed examination, scrutiny and elaboration either of the facts or the legal position. If_ an erroy is, not, seffevidenf and defection thereof- reguires, a long debate and process, ofreasoning It cannot be treated, as an error, on the face of the record. To put it differently, it must be such as be seen by one who runs and reads..."[ Emphasis added]. From the above authority, review can only be done if it is intended to correct an error or mistake apparent on the face the record/ impugned decision. The decision afforecited envisages that review cannot be conducted in the following circumstances: - ”1. If it is intended to provided a back-door method to unsuccessful litigants to re-argue their case. 2. If the point has already been dealt with and answered. 3. Where review is intended to be exercised on the ground that the decision was erroneous on merits. 8 4. When is intended to rectify an incorrect exposition of the law. 5. Where the whole process of review will amount to sitting as appellate Court of own decision. 6. If an error requires a long debate and process of reasoning. I have read the submission to oppose the preliminary by Mr. Kaunda learned advocate for the Applicant who has contended that the impugned decision of the court is a manifest error or mistake apparent on the face of record. According to him, it was pleaded by the Applicant in the main suit and admitted by the Respondent that there were no squabbles among the shareholder or members of the Applicant to warrant sanction of the Applicant's Board Resolution to institute suit against the Respondent. His further arguments were such that, if shareholders of the Company have no squabble there is no requirement of Board Resolution to institute a suit. In his view, it is not something which can be established by long drawn process of reasoning on points which may conceivably be of two opinion. I have revisited the impugned ruling and found that the question whether the suit which the court did strike out required Board Resolution, was argued by the parties and the Court ruled out that the Resolution was 9 necessary. Therefore, as long as the point has already been dealt with and answered, the parties are not entitled, to challenge the impugned ruling by way of review. In my understanding which constitutes my firm view, power of review is normally limited in scope for correction of mistake which are apparent on the face of the record and not to substitute a view in law. The way I see the instantaneous application for review, it is aimed by the Applicant to be used as a back door to re- argue against the preliminary objection in Land Case No. 502 of 2023. In principle, review is not the proper way of challenging the decision of the court on the ground of incorrect exposition of the law. As the Court cannot sit as a court of appeal from its own decision. In this matter it is evident from the ground of review that the Applicant is faulting the ruling of this court in Land Case No. 502 of 2023 for having erred in law and fact to strike out the suit for mere absence of the Board of resolution. In my firm view, this is a ground of appeal in disguise. This court being the one blamed to have committed such error, is functus officio to correct it. Correction of such kind of errors is the function of an appellate court. io In the end, I find merit in the preliminary objection. The same is sustained and consequently thereof, the entire application is dismissed with costs. Order accordingly.