RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CIVIL REVIEW No. 6978 OF 2024 (Arising from Civil Cause No. 4 of 2022 at the High Court of the United Republic of Tanzania (Dar es Salaam District Registry) at Dar es Salaam, before Hon. Ismail, J) ANAMIKA AGNIHOTRI…………………………..........................1ST APPLICANT ATVANTIC GROUP (T) LIMITED………....................……...... 2ND APPLICANT Versus AVINASH RAMESHKUMAR GALAN….................................1ST RESPONDENT KISSHORI MUKESH MAGANLAL…………...…................….2ND RESPONDENT RULING: 31st July & 14 Aug 2024. KIREKIANO, J: The applicants herein filed civil cause no. 4 of 2022 against the three respondents, Anamika Agnihotri, Rahul Ganeshan Mudaliar, and Atlantic Group Limited (T) Company. On 16th March 2022, this court entered a consent judgment adjudging the parties' dispute. The applicant, under Section 78 and Order XLII Rules 1 and 3 of the Civil Procedure Code [Cap, 33 R.E 2019], seeks this court to review its judgment. It is also noted here that, this court on 13.4.2024 granted extension of time for the applicants to file review out of time. 1 The application was granted to the applicants against the three respondents Anamika Agnihotri, Rahul Ganeshan Mudaliar, and Atlantic Group Limited (T) Company. When served with the applicant’s application Mr, Jerome Msemwa counsel for the respondents posed preliminary objection on one point thus; The application for

review is incompetent in law for failure to join Rahul Ganeshan Mudaliar, who was a party in Civil Cause No. 4 of 2022. WHEREFORE the Respondents prays for the dismissal of an application for review with costs. Hearing of the objection was by written submission; Mr Chance Luoga represented the applicants while the respondents were represented by, Mr Jerome Msemwa learned advocate. Mr Msemwa was brief, he argued that the omission to include Rahul Ganeshan Mudaliar who was a party is a serious and fatal irregularity since it affects on the right of the omitted party in review. He cited the Court of Appeal decision in in the case of CRDB Bank Plc Vs. Fieri Microfinance Limited & Another, Civil Appeal No. 20 of 2020 where the court discussed extensively on the necessity of joining all those parties who were part of original matter, and held that; 2 "This Court's perspective is that omitting the 3rd and 4th Defendants in the notice of Appeal and Memorandum of Appeal, parties who were parties who were parties to the original suit and are directly and substantially affected by the. appeal, as shown herein, goes to the fundamental principle of the right to be heard and cannot be overridden by the oxygen principle. He thus asked this court to find the application incompetent and dismiss the same. On his part, Mr Chance Luoga submitted that the respondents herein in Civil Case No. 04 of

2022 and Misc. Civil Application No. 254 joined the said Rahul Ganeshan Mudaliar because he was the Director of the 2nd Applicant but in March 2024, he was terminated as a Director of the Company. So, when the review application was filed his status as Director no longer existed hence lead to institute this application without his name as previous cases. He was of the views that the cited case was distinguishable here, considering the issue that the Company is a separate legal entity then the omission of this person to be part of the Civil Review No. 6978/2024 is not a fatal irregularity. There was no rejoinder submission filed. 3 On my part, I have considered the parties submission and the cases cited. It is clear that in review proceedings the same is not a new case, but rather an undertaking to make the record proper on the rights of the parties. This is to say in absence of order in a review directing to the contrary, the judgment remains valid and binds the parties. What this means is that the judgement entered and communicated to the parties binds them to the extent indicated. In that view, any exercise to rectify, reverse or otherwise correct the judgment be it by way of appeal, review, or reference, should be done on notice to the parties and accord them opportunity to be heard short of this is tantamount to denial of right to be herd. I have revisited the judgement

sought to be reviewed, it is clear that the said Rahul Ganeshan Mudaliar was a part even when this court granted extension of time to file this proceeding. However, in this application the said Rahul Ganeshan Mudaliar on reasons posed by the applicant counsel was not joined. When faced with akin situation, the court of appeal in Isaack Wilfred Kasanga v. Standard Chartered bank Tanzania Limited, Civil Application No. 453/01 of 2019 [2022] TZCA 222 (22 April 4 2022Tanzl.il), held that the proceedings should at any given time appear as before so that parties can be given right to be heard. In another decision of Salim Amour Diwani vs The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023) the court of appeal cited decision in Hellena Adam Elisha @ Hellen Silas Masui v. Yahaya Shabani & Another, Civil Application No. 118/01/2019 (unreported) and held that; The issue was that the names which were appearing in the notice of appeal were different from those appearing in the application to strike out the notice of appeal. We underscored the significance of the authenticity and accuracy of court records which in our considered opinion includes a citation of parties' names as they appear in the proceedings. (Emphasis supplied) I have given thought to Mr Luoga submission on the change

of status of the said Rahul Ganeshan Mudaliar, having given it thought I hasten to say as I elaborated above that this is not a new case, thus the omitted part who had record of this court decision dated 16th March 2022, should be heard on any attempt to vary, or correct the same. 5 As such I am not persuaded by his submission that the cited case of CRDB Bank Plc Vs. Fieri Microfinance Limited is distinguishable. I say saw because, under Order XLII Rules 1 and 3 of the Civil Procedure Code [Cap, 33 R.E 2019], the same provides to the effect that provisions as to the form of preferring appeal shall apply, mutatis mutandis, to applications for review. The decision cited are very much relevant in this application and that is that is to say, parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that. I have considered the applicant’s submission on the reason stated above same does not justify the omission on the part mentioned. In the end I find merit in the objection raised, the application before me is incompetent. Mr Msemwa prayed for dismissal of the same. It is the position of the law that an incompetent application can not be dismissed, the same is strike out with costs. 6 A. J. KIREKIANO.

JUDGE 14.8.2024 COURT: The ruling was delivered in the chamber in the presence of Mr Chance Luoga, and applicant and holding brief of Mr Jerome Msemwa for the respondent A. J. KIREKIANO.

JUDGE 14. 08.2024 7 8