CIVIL REVIEW NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [DAR ES SALAAM SUB-REGISTRY] AT PAR ES SALAAM CIVIL REVIEW NO. 10 OF 2023 (Arising from the ruling and drawn order of the High Court of Tanzania (Dar es Salaam District Registry) at Dar es Salaam, Hon. J. D. Luambano, Deputy Registrar in Execution No. 23 of 2020) DIAMOND TRUST BANK TANZANIA LTD....................................... APPLICANT VERSUS ATHUMANI MOHAMED KINEGA................................................ RESPONDENT RULING 27th June & 4 July, 2024 DYANSOBERA, J.: The applicant Diamond Trust Bank Tanzania Limited has filed a memorandum of review on the following ground: 1. That there is a mistake or error apparent on the face of the record in that on account that the applicant as the decree holder is the beneficiary of the sum of money fetched in the public auction which was conducted on 17th day of February, 2023 and the same has been deposited in the applicant's bank account and public auction was held to be legal, the learned Taxing Master erred in ordering the said sum of money being deposited back in the Judiciary account. i It is prayed by the applicant that this Honourable court allow the application by reviewing its own order dated 11th day of August, 2023 in respect of Execution No. 23 of 2020 and having done so vacate the Order which directed the applicant(decree holder) to deposit the entire sum of money fetched in the public auction in the Judiciary Account and thereof to ascertain only the amount payable to the court broker and any other court charges thereof and such amount to be ordered to be transferred to the decree holder to the Judiciary Account. Brief facts for the determination of this application for review are the following. Before this court, the applicant successfully sued the respondent in Civil Case No. 35 of 2015. The applicant then initiated execution proceedings in Execution No. 23 of 2020. The mode employed was by attachment and sale of the respondent's landed property located at Plot No. 79 Block C, Mtakuja area, Temeke in Dar es Salaam. Jumanne Msafiri Kalelanda t/a Crown Auction Limited was appointed to conduct the auction. On 17th February, 2023, the said auctioneer conducted a public auction whereby Salum Said Wambungulu who was the highest bidder emerged the winner. He deposited 100m/- as a purchase price into the applicant's account named Recovery Suspense Account No. 9899999176. Later, the auctioneer informed the court that the public auction conducted on 17th day of February, 2023 did not fetch the amount sufficient to satisfy the court's decree and sought of re-auctioning and at the same time the purchaser of the auctioned property sought for certificate of sale. 2 In his ruling delivered on 11th August, 2023, Mr. J. D. Luambano, the Deputy Registrar, declined to order the re-auction and, instead, confirmed the sale. He further directed the money paid to the appellant in her account be remitted to the judiciary account within 14 days from the date of the order. This last order aggrieved the applicant, hence this application for review. The application was canvassed in writing. Mr. Karoli Valerian Tarimo, learned Advocate, filed submission in chief in support of the application whereas Mr. Ramadhan Karume, learned counsel filed the written submission in reply. In his submission in support of the application, counsel for the applicant, placing reliance on Section 78 and Order XLII rule 1 (1) (a) of the Civil Procedure Code [Cap. 33 R.E.2019], outlined that the error complained of by the applicant and which Is being sought to be reviewed is the order which directed the applicant who is a decree holder to deposit the entire sum of money fetched in the public auction in the Judiciary Account. He contended that a quick glance into the said order would reveal that any person without hesitation will see the error within it in that the money has been paid to a right therefore no need to return them to the judiciary account and later on to be paid back to the same person. If there are expenses to be paid to the third parties like the court broker and the like, then the right thing was for the court to ascertain only the amount payable to the court broker and any other court charges thereof and such amount to be ordered to be transferred by the decree holder to the Judiciary Account. According to the learned counsel for the applicant, the above error is an error apparent on the face of the record and as such 3 it can be seen by anyone who runs and reads the said ruling as it is an obvious and patent mistake and not something which can be established by a wrong drawn process of reason on points on which there may be conceivably two opinions. Further that it is and error which is self-evident and does not require an elaborate argument to be established. Counsel for the applicant insisted that in view of the fact that the applicant is a decree holder and the rightful beneficiary of the auction proceeds, she should retain the money fetched from the public auction but subject to the payment of the court broker's fees and other court charges, which amount the applicant should transfer to the Judiciary Account after the court has determined the exact amount to be paid. It is the counsel's view that complying with the order of the court to remit/transfer the money into the Judiciary Account and subsequently transferring the money back to the applicant/decree holder's bank account, may attract additional charges to the detriment of the applicant and cause unnecessary and avoidable inconveniences. In response, counsel for the respondent rested his opposing submission on two aspects: competence and tenability of the instant application. With regard to the first aspect, counsel for the respondent contended that the substratum element of review in our jurisdiction could be well articulated from the case of Chandrakant Joshubhai Patel Vs. Republic [2004] where the court made it explicit that: 4 that a decision is erroneous in law is no ground for ordering review. Thus, the ingredients of an operative error are that first, there ought to be an error; second the error has to be manifest on the face of the record and third, the error must have resulted into miscarriage of justice". It was the further argument of counsel for the respondent that the law is settled that review is for addressing irregularities and not challenging the merits of the case or application and that in the present application, the applicant is silent on which is the error on the face of the record which is so patent that no court could have overlooked it and that the same error has resulted in the miscarriage of justice. Counsel for the respondent was emphatic that the error pointed out by the applicant does not in anyhow fall within the ambit of the irregularities or illegalities warranting a review but could, perhaps, be a ground of appeal subject to the applicant's opted choice. Counsel for the respondent supported his argument by citing the case of Ngasa s/o Nhabi Vs. Republic, Criminal Application No. 2 of 2014 on the authority that an application for review is by no means an appeal in disguise whereby an erroneous decision can be reheard and corrected. Pushing his argument further, counsel for the respondent summitted that the applicant has failed to show any irregularities or illegalities on the face of record to warrant the review and that this means that the application is incompetent. He insisted that the dissatisfaction with the court's judgment cannot be the sole basis for seeking review. 5 In relation to the second aspect, that is the merit of the application, counsel for the respondent submitted that the business of the Court Brokers and Process Servers is statutory and therefore, governed by Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, GN No. 363 of 2017. Counsel for the respondent was specific that the Rules govern how to conduct public auction in execution of decrees and where to deposit the proceeds of the auction by the Court Broker. Making reference to rule 25 of the Rules, counsel for the respondent was emphatic that there are only two accounts in which the proceeds from a public auction can be deposited, namely, the Court's Account or the Client's Account. He clarified that the Client's Account is defined under rule 9 of the Rules in the following terms: '9. A Court broker shall open and maintain a separate bank account for the moneys paid to him in the execution of court decrees, orders or warrant.' Counsel for the respondent argued that the law was flouted as the moneys obtained from the sale in execution was deposited into neither the Court's Account nor the Client's Account but in the applicant's account without the authorization of the court. With this submission, counsel for the respondent urged the court to find the application misplaced, incompetent and devoid of any merit and dismiss it with costs. Having considered the memorandum of review and the submissions of learned advocates for the parties and after taking into account the rel&yant laws , and the cited case laws, the issue I have to consider and determine is whether this application for review has any legal merit. The provisions under which this court derives power to review its decision or order and which has been heavily relied upon by the applicant is Order XLII rule 1 (1) of the Civil Procedure Code [Cap. 33 R.E.2019] which provides as hereunder:- '1. -(1) Any person considering himself aggrieved- (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who, from the discovery of new 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, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order'. According to the above provisions, a review will be entertained when and there it is apparent that there is a manifest error on the face of the record which resulted in a miscarriage of justice. For the applicant to succeed in his application for review, he must prove very clearly that either, there is a manifest error apparent 7 on the face of the record and such error has resulted in injustice or the decision was obtained by fraud, or the applicant was wrongly deprived of the opportunity to be heard, or the court acted without jurisdiction. It should be noted that the power of revision is not designed to re-open the matter otherwise lawfully determined as to do so would be against public policy that litigation must have finality as was succinctly put in its proper perspective by the Court of Appeal in the case of Karim Kiara Vs. Republic, Criminal Application No. 4 of 2007 (CAT-Dodoma) (unreported) that: 'In a properly functioning system, litigation must have finality, thus the Latin maxim 'debet esse finis Htium'd In this application, the applicant is complaining against the order by the Deputy Registrar directing her who is the decree holder to deposit the entire sum of money fetched in the public auction in the Judiciary Account. According to the applicant's learned counsel, a quick glance into the said order would make any person without hesitation to see the error within it in that the money has been paid to a right therefore no need to return them to the judiciary account and later on to be paid back to the same person. On his part the respondent, thorough his learned counsel, maintained that the business of the Court Brokers and Process Servers is statutory and therefore, governed by Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, GN No. 363 of 2017. Counsel for the respondent was specific 8 < that the Rules govern how to conduct public auction in execution of decrees and where to deposit the proceeds of the auction by the Court Broker. I think the respondent and his learned counsel are right. The Court Brokers and Process Servers (Appointment, Remuneration and Disciplinary) Rules, 2017 GN No. 363 published on 22/09/2017 ('the Rules'), governs the conduct in the business of the Court Brokers and Process Servers. With regard to deposit of money paid in execution, rule 25 (1) is relevant and provides as hereunder: '25. -(1) The Court broker shall, deposit moneys paid in execution of the decree in the court's account or to the clients' account or transferred to the court's account on the date of its payment or if the date of payment is not a working day or payments were made after working hours, the amount so deposited or paid, shall be transferred to the court's account on the next working day. (2) A court broker who fails to deposit or transfer the amount paid to him in execution of the decree within the specified time may be subjected to disciplinary proceedings. (3) The court broker shall not sell attached property until he obtains an order for proclamation of sale. (4) Every sale in execution of a court order shall be by public auction.' As rightly submitted by counsel for the respondent, the law designates only two accounts in which the proceeds from a public auction can be deposited, namely, the Court's Account or the Client's Account. The Client's Account is defined under rule 9 of the Rules in the following terms: 9 '9. A Court broker shall open and maintain a separate bank account for the moneys paid to him in the execution of court decrees, orders or warrant/ There is no dispute that the sale in execution of the decree during the public auction fetched Tshs. 100, 000, 000/= from the highest bidder one Salum Said Wambangulu who, upon being instructed by applicant's recovery Manager one Dooyakwa Philip, paid the money into the applicant's bank account No. 9899999176 with the name Recovery Suspense Account. . Clearly, that was a blatant violation of the mandatory legal requirement under rule 25 (1) of the Rules which obligated the Court broker to deposit moneys paid in execution of the decree in the court's account or to the clients' account. In his ruling, the Deputy Registrar ordered the money paid to the applicant to be remitted by the applicant to the judiciary account. Was this an error? The answer is NO. By making an order that the money paid into the applicant's account be remitted to the court's account, the learned Deputy Registrar was vindicating the law. According to the case of Chandrakant Joshubhai Patel Vs. Republic [2004], the ingredients of an operative error are that first, there ought to be an error; second the error has to be manifest on the face of the record and third, the error must have resulted into miscarriage of justice'. In the case under consideration, there was no any error leave alone an error manifest on the face of the record resulting into miscarriage of justice. In view of the aforesaid, I find this application devoid of any merit as it is misconceived and in consequence, I reject it. Since none of the parties is to blame for the failure by the executing officer to carry out his duties according to law, no order as to costs is made. . P. Dyansobera JUDGE 4.7.2024 This ruling is delivered under my hand and the seal of this Court on this 4th day of July, 2024 in the presence of Ms. Victoria Gregory, learned counsel for the applicant and also holding brief for Ms. Asnath Kiverege, learnad advocate for the respondent. W.P. Dyansobera JUDGE