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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 13168 OF 2024 (Arising from the decision of this Court in Civil Case No. 124 of 2019) __________________ BARNABAS KACHIRA MPABASI ….……………………………..APPLICANT VERSUS THE BOARD OF TRUSTEES OF PUBLIC SERVICE SOCIAL SECURITY FUND…………………………RESPONDENT RULING Date of last order: 26th August 2024 Date of Ruling: 10th September 2024 MTEMBWA, J.: Under section 78(1) (a) and Order XLII rule 1(1) of the Civil Procedure Code, Cap 33 R.E 2019, the Applicant is seeking an order to review the decision of this Court in Civil Case No. 124 of 2022 dated 4th March 2022. Briefly, the Applicant commenced a suit against the Respondent, claiming for payment of the sum of Tanzanian Shillings 345,690,936/= being unpaid benefits; Tanzanian Shillings 45,690,936/= being rightful pension benefits arising from 1 over 15 years of contributions; Tanzanian Shillings 207,514/= being monthly pension and costs of the suit. When the Respondent was served, a preliminary objection as to the pecuniary jurisdiction of this Court was taken. Having considered the rival arguments of the parties, the Honourable trial Judge dismissed the claim on the ground that this Court had no pecuniary jurisdiction to entertain the matter. That was the end of it. Felt aggrieved, the Applicant filed this Application seeking to review the legal stance taken by this Court on the ground that the Court had no jurisdiction to dismiss the suit but only to strike it out. On 25th June 2024, when the matter came for orders, the Applicant appeared in person while the Respondent was represented by Mr. Sarehe Manoro, assisted by Ms. Nyambilila Ndoboka, the learned state attorneys. By Consent, parties agreed to argue this Application by way of written submissions. Having passed through the records, I am satisfied that parties adhered to the agreed schedule, which I intensely recommend. Taking the podium, Mr. Phares Mshana, the learned counsel for the Applicant, submitted that this Court erroneously dismissed the suit 2 by reason of incompetency. Having seen that it was incompetent by reason of jurisdiction, the proper remedy was to strike out and not to dismiss it. He cited the case of Ajitesh Jayantal Ladwa & Another vs. Dhirajilal Waui Ladwa & 2 Others, Civil Appeal No. 435 of 2020, Court of Appeal of Tanzania at Dar es Salaam. In his further submissions, the learned counsel observed that from the records, there was a mistake or an error apparent on the face of the records. Based on the foregoing, he implored this Court to allow the Application by reviewing the dismissal order. In response, Mr. Stephen Noe Kimaro, the learned State Attorney, first raised a new issue styled as a preliminary objection to the effect that the Decree is defective for containing dates different from the date of the Ruling contrary to Order 20 rule 7 of the Civil Procedure Code (supra). He thus maintained that the Application for Review is defective. To give effect to the fact that the issue is a pure point of law, the learned state attorney cited the cases of Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) E.A. 696 and Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young 3 Women Christians Association of Tanzania, Civil Appeal No. 2 of 2010 (Unreported). Mr. Kimaro also observed that the Ruling signed by Hon. Judge is dated 4th March 2022, while the drawn order signed by Hon. Luambano, Deputy Registrar, is dated 19th April 2024. He added that the anomaly contravenes Order 20 Rule 7 read together with Order XXXIX, Rule 35 (1)(5) of the Civil Procedure Code (supra). In that stance, he submitted that the Applicant cannot even take advantage or benefit from the oxygen principle. He cited the case of Mondorosi Village Council and 2 Others vs. Tanzania Breweries Limited and 4 Others (supra) and Njake Enterprises Limited vs. Blue Rock Limited and Another, Civil Appeal No. 69 of 2017 (unreported). On the merits of the Application, Mr. Kimaro submitted that the Review is a limited remedy but a creature of the statute. He cited the case of Chandrakant Joshubhai Patel vs. Republic [2004] TLR 218, where it was observed that in review, the Applicant must establish that there is a manifest error on the record, which must be obvious and self-evident, and which resulted in a miscarriage of 4 justice; that the decision was obtained by fraud; and that a party was wrongly deprived of the opportunity to be heard. Based on the above, Mr. Kimaro submitted that this Application does not meet the conditions pegged on the cited decision. He cited the case of Yusufu Hassani vs. Republic (Criminal Application No. 58 of 2020) [2021] TZCA 247 (10 June 2021) where it was observed that an error apparent on the face of the record must be such as 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 two opinions. A mere error or flaw is not a ground for ordering a review. It can be said of an error that is self-apparent on the face of the record when it is self-evident and does not require an elaborate argument to be established. According to Mr. Kimaro, the trial judge was wrong to dismiss the suit for lack of pecuniary jurisdiction. The proper remedy in the circumstances should have been to deal with the suit in accordance with Order VII Rule 10(1) and (2) of the Civil Procedure Code (supra), that is, to return the Plaint to be presented to the proper 5 Court with competent jurisdiction. He cited the cases of Qamara Kwaslema Gwareh vs Anwar Hassan & Others (Civil Appeal 92 of 2015) [2016] TZCA 593 (29 February 2016) and Godwin Biswalo & Others vs. The Board of Trustees of Saint Augustine University of Tanzania and Another, Civil Appeal No. 18 of 2014. He added that the power of review is limited in scope and is usually used to correct a mistake but not to substitute a view in law. He cited the cases of Peter Ng'homango vs. Gerson A.K. Mwanga And Another, Civil Application No. 33 of 2002 (unreported) and Balinda vs. Kangwamu [1963] EA 557. The learned state attorney insisted that this Court can not exercise its powers to review the impugned Ruling since a review is not a substitute of an appeal. He cited the case of Patrick Sanga vs. Republic, Criminal Application No. 8 of 2011 (unreported), whereas the case of Emmanuel Kondrad Yosipati vs. Republic (Criminal Application No. 90 of 2019) [2020] TZCA 17 (25 February 2020) was referred. He distinguished the cited case of Jitesh Jayantilal Ladwa (supra). He implored this Court to strike out the Application with costs. 6 In rejoinder, Mr. Mshana submitted that the new ground of appeal, raised as a preliminary objection, has been discussed without an order to that effect. What the Court ordered on 25th June 2024 was to file submissions with respect to the Memorandum of Review and not otherwise. He seemed to have been ambushed by a newly raised issue. Without prejudice, he argued further that the drawn order is in compliance with the law as it bears dates similar to the ruling. On the merits of the Application, Mr. Mshana insisted that the proper remedy was to strike out and not to dismiss the suit. He lastly implored this Court to allow the Application. Having dispassionately considered the rival arguments by the parties, the question here would be whether the Application is meritorious. Mr. Kamaro questioned the competency of this Application, alleging that the impugned Drawn Order is dated differently from the Ruling, contrary to the requirement of Order 20 Rule 7 read together with Order XXXIX, Rule 35 (1)(5) of the Civil Procedure Code (supra). Mr. Mshana did find it worth purchasing. He maintained that the Drawn Order is in compliance 7 with the law. Since it relates to the competency of the Application, it would be worthwhile if I looked into it first. Indeed, Order XXXIX rule 1 (1) of Civil Procedure Code (supra) provides as follows; Every appeal shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded. Discussing the import of the above provisions, the Court in Munshiram & Co. vs. Star Soda Water Factory (1934) 16 K.L.R 50 had this to say; That O 39 r.1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from, and that where an appellant has failed to comply with this provision, the appeal is not properly before the court and must be dismissed. It follows therefore that Order XXXIX Rule 1 of the Civil Procedure Code was not designed or fashioned to leave the requirement to attach the Judgment and Decree at the liberty and wishes of the party. It is couched in mandatory terms and imperative. 8 As such, whoever wishes to appeal to the High Court when the District Court or Court of Resident Magistrate is exercising its original jurisdiction must mandatorily attach to the Memorandum of Appeal, a Judgement and Decree appealed from. Regarding what should be accompanied with when an Application for Review is preferred from the dismissal order, Order XL rule 2, read together with Order XLII rule 3 of the Civil Procedure Code (supra), is of assistance. Specifically, the cited Order XLII rule 3 of the code provides that the provisions as to the form of preferring appeal shall apply mutatis mutandis to applications for review. Reading between the lines, the law requires that a copy of the judgment and Decree should be attached to the application when the judgment is sought to be reviewed. When what is sought to be reviewed is a ruling, then a copy of it and the drawn order should be accompanied by the Memorandum of Review. In such circumstances, a Drawn Order is an important and or necessary document to be attached to the Memorandum of Review the absence of which renders the Application incompetent. In addition, since the documents sought to be revised is the Ruling and 9 drawn order, the two must be drawn in accordance with the law short of which this Court cannot exercise its powers of review. As correctly alluded by Mr. Kimaro, the impugned Ruling of this Court was delivered on and is dated 4th March 2022. However, the Drawn Order was delivered on and is dated 19th April 2024. It follows therefore that the Ruling and Drawn Order were dated differently. Order 20 rule 7 of the Civil Procedure Code (supra) provides that the decree shall bear the date of the day on which the judgment was pronounced and, when the Judge or magistrate has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree. The term ‘Judgement’ and ‘Decree’ can be construed to mean the ‘Ruling’ and ‘Drawn Order’ respectively. As such, a Memorandum of Review accompanied with an invalid or defective Decree or Drawn Order is incompetent and the only remedy is to strike it out (see also Tanzania Revenue Authority vs. Njake Enterprises Limted, Civil Appeal No. 122 of 2004, Court of Appeal of Tanzania at Dar es Salaam and DR Gabriel Michael Muhagama vs. Salum Abass salum & 2 Others (2006) TLR 336). I understand that the Applicant is not the one to 10 blame however, Mr. Mshana was dutifully bound professionally to make sure that the Drawn Order bears the same date with the Ruling. To that end, the Application is struck out with no order as to costs. The Applicant is at liberty to refile it afresh after securing a proper Drawn Order. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 10th September 2024. H.S. MTEMBWA JUDGE 11