raphael saiboku vs shenya jojn imori 2022 tzca 763 5 december 2022

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWAMBEGELE. 3.A.. KEREFU. J.A. And KIHWELO. J.A.l CIVIL APPLICATION NO. 132/02 OF 2022 RAPHAEL SAIBOKU............................................................................. APPLICANT VERSUS SHENYA JOHN IMORI (Suing as Administrator of the Estate of the Late Long'asani Ladung'ani)........................................RESPONDENT (Application for Review from the Decision of the Court of Appeal of Tanzania, at Arusha) (Ndika. Levira And Mwampashi. 33. A"> dated the 3rd day of December 2021 in Civil Appeal No. 69 OF 2021 RULING OF THE COURT 28th November & 5th December, 2022 KIHWELO. 3.A.: In this application, the Court is being asked to review its decision in Civil Appeal No. 69 of 2021 dated 3rd December 2021 whereby the applicant's appeal against the decision of the High Court of Tanzania in Land Case No. 35 of 2015 (Masara, J.) was upheld save for orders on award of special damages in relation to the demolition of the deceased's house situated at Siwandeti village within the District of Arumeru. i The application has been preferred through a notice of motion predicated on rules 66(l)(a), 48 (1) and (2) and 49 of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), on the ground that the decision was based on a manifest error on the face of the record resulting in miscarriage of justice. The application has been supported by an affidavit of the applicant, Raphael Saiboku. Paragraphs 8, 9, 10 and 11 of the supporting affidavit deal with the alleged errors. To be more precise, in paragraph 11 the applicant faults the judgment of the Court alleging, that the Court took over the powers of the High Court the decision that manifests an error on the face of the record resulting in the miscarriage of justice. On the other hand, the respondent, Shenya John Imori filed an affidavit in reply. In essence, the respondent is opposing the application and argues that the ground relied upon by the applicant does not warrant the Court to exercise its powers of review. In particular, the respondent averred that the power of the Court to review its own decision is limited to an error on the face of the record which resulted to miscarriage of justice and not on an erroneous decision which is the prerogative of the superior Court. 2 At the hearing before this Court, the applicant was represented by Mr. Michael Lugaiya, learned counsel who teamed up with Mr. Sabato Ngogo also learned counsel, whereas the respondent had the services of Mr. Meinrad Menino D'Souza learned counsel. Mr. Lugaiya prefaced his submission by praying to adopt the written submissions which were earlier on lodged in terms of rule 106 of the Rules. He further prayed to adopt the list of authorities they earlier on filed in terms of rule 34 of the Rules. On his part, Mr. D'Souza did not file written submissions in opposition and addressed the Court in terms of Rule 106 (10) (b) of the Rules. In support of the application Mr. Lugaiya contended that, upon this Court finding that the requirements of the law were not complied with by the trial court, it was expected to remit the case file to the trial court with a direction that the triai court should proceed to make the necessary orders and/or directions and that, as it stands now, the Court has taken over the powers of the trial court and therefore, the decision of this Court manifests an error on the face of the record resulting in the miscarriage of justice. Elaborating further, the learned counsel argued that, the Court properly considered the consequences of failure to file the written statement of 3 defence within time and cited Order VIII, rule 14 (1) and (2) of the Civil Procedure Code, [Cap 33 R.E. 2019] as well as the decision of this Court in John Lessa v. ZAMCARGO Ltd and Jonas Mmari, Civil Appeal No. 61 of 1996 (unreported) in which, faced with analogous situation, the Court remitted the matter to the High Court with a direction that the court proceed to make the necessary order and/or direction. Mr. Lugaiya further submitted that, the decision of the Court to infer that the trial judge made an order for the respondent to proceed ex parte took away the applicant's opportunity and right to apply for extension of time to file his written statement of defence in accordance with the CPC. He paid homage to the previous decisions of this Court in Prof. T.L. Maliyamkono v. Wilhelm Sirivester Erio, Civil Appeal No. 93 of 2021, Dangote Industries Tanzania Ltd v. Warnercom (T) Limited, Civil Appeal No. 13 of 2021 (both unreported) and Nimrod Elireheman Mkono v. State Travel Services Ltd & Masoo Saktay [1992] TLR 24. The learned counsel, therefore prayed that, the application be allowed and the case file be remitted to the High Court for necessary orders. Mr. D'Souza, in response argued that, although the applicant has predicated his application upon rule 66 of the Rules in essence the averments 4 in the affidavit do not fail within the purview of an application for review, for they are aimed at calling upon the Court to revisit an erroneous decision which is the prerogative of the superior court which is not what a review is all about. He went on to argue that a mere error of law is not a ground for review and that the ground raised by the applicant do not qualify for a review but rather they are mere grounds of appeal which have been brought through a back door. Reliance was placed in the case of Amina Maulid Ambali and 2 Others v. Ramadhani Juma, Civil Application No. 173/03 of 2010 (unreported) which cited the case of Tlatla Saqware v. The Republic, Criminal Application No.2 of 2011 (unreported) which quoted the case of Mirumbe Elias @ Mwita v The Republic, Criminal Application No. 4 of 2015 (unreported). Responding further Mr. D'Souza, argued that, the applicant has not sufficiently demonstrated how will he suffer injustice if the application is not granted, in the contrary, the respondent stands to suffer injustice if the matter is remitted to the High Court. He distinguished all cases that were cited by the applicant as inapplicable in the circumstances of the case before the Court and finally urged us to dismiss the application with costs. 5 Having carefully considered the submissions, and after going through the notice of motion and the supporting affidavit as well as the affidavit in reply, it is instructive to interject a remark at the outset that, review is not an automatic right. It is available only in exceptional situations which are listed under rule 66 (1) of the Rules. Before we dwell onto the determination of this application, it seems desirable that we, first, discuss the principles governing the Court's power to review its decision. This Court in the case of Hassan Ng'anzi Khalfan v. Njama Juma Mbega and Another, Civil Application No. 336/12 of 2020 discussed the powers of the Court to review its decision thus: - W e wish; in the first place, to point out that powers o f the Court to review its decision constitutes an exception to the general rule that once a decision is composed, signed and pronounced by the Court, the Court becomes functus officio in that it ceases to have control over the m atter and has no jurisdiction to alter or change it Needless to overemphasize that a review is called for only where there is a glaring and patent m istake or grave error which has crept in the earlier decision by ju d icia l fallibility. Sim ply stated, the fin ality o f the decision should not be reopened or reconsidered so as to le t the aggrieved 6 party fight over again the same battle which has been fought and lost. It is obvious therefore that the court's pow er o f review is lim ited." It is therefore, we think, appropriate to recapitulate briefly the provision of rule of 66 of the Rules and more in particular rule 66 (l)(a) which the applicant has, in this application confined his grievance reads: - "The Court may review its judgm ent or order, but no appiication for review sh aii be entertained except on the foilow ing grounds; (a) the decision was based on a m anifest error on the face o f the record resulting in the m iscarriage o f ju stice ." The question is; what amounts to a manifest error on the face of the record? The answer to this question was discussed at considerable length by the Court in the most celebrated case of Tanganyika Land Agency Limited and 7 Others v. Manohar Lai Aggrwal, Civil Application No. 17 of 2008 (unreported) in which the Court drew inspiration from the Indian decision in M/S Thunga Bhadra Industries Ltd v. The Government of Andra Pradesh, AIR 1964 SC 1372 where it was stated that: "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lie s only for patent error...it would 7 suffice fo r us to say that where w ithout any elaborated argum ent one could point to the error and say here is a substantiaI point o f law which stares one in the face, and there could reasonably be no two options entertained about it, a dear case o f error apparent on the face o f the record would be m ade." Similarly, in the landmark case of Chandrakant Joshubhai Patel v. Republic [2004] TLR 218/ what amounts to a manifest error on the face of the record was fully addressed by the full Court at page 225. Having examined several authorities on the matter, the Court adopted from Mulla on the Code of Civil Procedure (14th Ed), pages 2335-2336 the following passage: "An error apparent on the face o f record m ust be such as can be seen by one who runs and reads, that is, an o b vio u s a n d p a te n t m ista ke a n d n o t so m e th in g w hich can be e sta b lish e d b y a lo n g - d raw n p ro ce ss o f re a so n in g on p o in ts on w h ich th e re m ay co n ce iva b ly be tw o o p in io n s. State o f Gujarat v. Consumer Education and Research Centre (1981) AIR GU[223]... W here th e ju d g m e n t d id n o t e ffe c tiv e ly d e a l w ith o r d eterm in e an im p o rta n t issu e in th e case, it can b e re v ie w e d on th e g ro u n d o f e rro r a p p a re n t on th e fa ce o f th e re co rd [Basselios v. Athanasius (1955) 1 SCR 520] But it is no ground for review that the judgm ent proceeds on an incorrect exposition o f the law [Chhajju Ram v. N eki (1922) 3 Lah. 127]. A mere error on iaw is not a ground fo r review under this rule. That a decision is erroneous in iaw is no ground fo r ordering review: Utsaba v. Kandhuni (1973) AIR Ori.94. It m ust further be an error apparent on the face o f the record. The fine o f demarcation between an error simph'citer, and an error on the face o f the record m ay som etim es be thin. It can be said o f an error that is apparent on the face o f the record when it is obvious and seif-evident and does not require an elaborate argum ent to be established [Thungabhadra Industries Ltd v. State o f Andhra Pradesh (1964) SC1372 ]'\Emphasis added] It was also stated in part at page 224 that: ".....no judgm ent can attain perfection but the m ost that Courts aspire to is substantiaijustice. There w ill be errors o f sorts here and there, inadequacies o f this or that kind, and generally no judgm ent can be beyond criticism . Yet while an appeal m ay be attem pted on the pretext o f any error, not every error w illju stify a review ." 9 We are alive to the fact that, the above decision was decided prior to the enactment of rule 66 of the Rules, but the case has remained one of the landmark cases in the interpretation of the issue of error manifest on the face of the record resulting in a miscarriage of justice within the scope of rule 66(l)(a) of the Rules. The Court in this case stressed that to constitute a reviewable error, such error must be patent on the record and not one which can be established by a long-drawn process of argument with the potential of two different opinions. Upon a thorough scrutiny of the impugned judgment, we must confess that, we have completely failed to see any error that qualifies for review in terms of rule 66 (1) (a) of the Rules. The judgment of the Court is impugned on the grounds that upon finding that the requirements of the law relating to filing a written statement of defence timely were not complied with by the High Court, it was incumbent upon the Court to remit the file to the High Court with a direction that the High Court proceed to make the necessary orders and/or direction instead of taking over the powers of the High Court as it did. Furthermore, the judgment of the Court is impugned on the grounds that it was improper 10 for the Court to infer that the trial judge made an order for the respondent to proceed ex parte. With respect, we think, that in any case these complaints by the applicant do not fall squarely within the scope of reviewable errors but rather a ground of appeal in disguise which is not acceptable in review. Fortunately, we have held similar position consistently in various decisions of this Court. For instance, in the case of Rizali Rajabu v. Republic, Criminal Application No.4 of 2011 (unreported), the Court stated that: - "First, we wish to point out that the purpose o f review is to re-exam ine the judgm ent with a view to amending o r correcting an error which had been inadvertently com m itted which if it is not reconsidered w iii result into a m iscarriage o f justice. We are alive to a well-known principle that a review is by no means an appeal in disguise. To p u t it differently, in a review the Court should not s it on appeal against its own judgm ent in the same proceedings. We are also m indful o f the fact that as a m atter o f public policy litigation m ust come to an end hence the Latin M axim -Interestei re ip u b lica e u t fin is iitiu m . (See C h an d rakan t Jo sh u b h a i 11 P a te / v R [2004] TLR 218; K arim K a ria v. R, Crim inal Appeal No. 4 o f2007 CA T (unreported) . " In view of the foregoing position, it cannot be doubted that the ground of the notice of motion by the applicant has no merit and it fails. That said and done, we find that the application for review is devoid of merit. It is accordingly dismissed with costs. DATED at ARUSHA this 5thday of December, 2022. J. C. M. MWAMBEGELE JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL The ruling delivered this 5thday of December, 2022 in the presence of Mr. Michael Lugaiya, learned counsel for the applicant who also holds brief for Mr. Meinrad D'Souza, learned counsel for the respondent is hereby certified as a true copy of the original.