dominicus zimanimoto makukula vs dominica dominicus makukula others 2023 tzca 17520 24 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: NDIKA. 3.A. KEREFU, J.A., And RUMANYIKA, J.A.1 CIVIL APPLICATION NO. 212/13 OF 2022 DOMINICUS ZIMANIMOTO MAKUKULA (The Administrator of the Estate of the Late DOMMY DOMINICUS MAKUKULA)........ ..... .......... .............. ..... ......... APPLICANT VERSUS DOMINICA DOMINICUS MAKUKULA............................. FIRST RESPONDENT SONGEA MUNICIPAL COUNCIL ............................. . SECOND RESPONDENT COMMISSIONER FOR LANDS, MINISTRY OF LANDS ................................... ................ . THIRD RESPONDENT THE ATTORNEY GENERAL ................ ........... ........ FOURTH RESPONDENT (Application for Review of the Judgment of the Court of Appeal of Tanzania at Iringa) fLHa. Kitusi and Mwampashi, JJ.A.^ dated the 31st day of March, 2022 in Civil Appeal No. 359 of 2020 RULING OF THE COURT 23rt & 24th August, 2023 NDIKA, J.A.: Dominicus Zimanimoto Makukula acting as the administrator of the estate of the late Dommy Dominicus Makukula ("the applicant"), seeks a review of the judgment of the Court dated on 31st March, 2022 in Civil Appeal No. 359 of 2020 dismissing his appeal from the judgment of the High Court of Tanzania sitting at Songea dated 21st May, 2020. In that decision, the High Court dismissed the applicant's suit against Dominica Dominicus Makukula, Songea Municipal Council, the Commissioner for Lands and the l Attorney General (the "first, second, third and fourth respondents" respectively). Very briefly, the elemental facts of the case as summarized in the impugned judgment are as follows: the applicant sued the respondents claiming that his father, the late Dommy Dominicus Makukula, was the lawful owner of landed property known as Plot No. 17, Block 'E' situated at Songea. The claim was based on Certificate of Title No. 28979 (Exhibit P4), which took effect on 1st July, 1982. On the other hand, the first respondent countered that she was the owner of the property vide Certificate of Title No. 13084-MBYL issued in her name (Exhibit D2). It was not in dispute, both at the trial and on appeal to this Court, that the original owner of the property in dispute was one Dominicus Zimanimoto Makukula who died on 24th May, 1982. To be sure, the late Dommy Dominicus Makukula (whose estate the applicant is administering) and the first respondent are the children of the original owner. It is undisputed that the two rival claims of title supposedly derived from the original owner's title. As hinted earlier, the High Court dismissed the applicant's suit. Resenting the outcome, the applicant appealed to this Court on three grounds: 2 1. The Honourable High Courtjudge erred in law and fact by failing to consider and compare the evidence o f the parties and reached a wrong conclusion. 2. The Honourable High Courtjudge erred in law and fact by making findings on strange issues which were not raised and not supported by pleadings. 3. The Honourable High Courtjudge erred in iaw and fact by making decision basing on his own sentiments and feelings. Having heard and considered the contending submissions of the learned counsel, the Court dismissed all the three grounds of appeal. There is no doubt that the Court could have at once made a dispositive order on the matter. However, before taking leave of the matter, the Court found it judicious to deal with an unpleasant situation where the two certificates of title co-existed over the same property: one issued in favour of the applicant's late father and another in the name of the first respondent. Having reflected on the matter, the Court ruled thus: "Finally, it is our duty to conclude that having found the transfer o f the suit property from the original owner to the appellant's father has been invalid, the learnedjudge ought to have declared the certificate issued to Dominicus Makukula (Exhibit P4) also invalid. Since that was not done, we step into the shoes o f the High Court and declare so. We also proceed to declare Exhibit D2 invalid for the two 3 reasons we have shown above. As a result, the suit property reverts to the original owner, and anyone claiming interest in that property may pursue it in accordance with applicable procedures/' Ultimately, the Court dismissed the appeal with costs. Still discontented, the applicant now moves for a review of the Court's judgment on the ground that it is "based on a manifest error on the face o f the record resulting in miscarriage o fjustice as the Court having agreed with some o f the applicant's complaints, dismissed the appeal in its entirety." Mr. Moses Ambindwile, learned counsel, argued the application on behalf of the applicant. His essential submission was that even though the Court dismissed all the three grounds of appeal raised by the applicant in the appeal, the Court should have partly allowed the appeal on the reason that both the applicant and the first respondent had their respective certificates of title nullified by the Court. Thus, he submitted that it, therefore, was an error on the face of the record that the Court dismissed the appeal in its entirety. Furthermore, Mr. Ambindwile assailed the order of the Court condemning the applicant to pay costs on two grounds: one, that as the appeal ought to have been partly allowed, the applicant should not have been condemned to bear all the costs of the action. Two, the Court should 4 have refrained from ordering the applicant to pay costs to the first respondent who happens to be his paternal aunt. In support of his submissions, he relied upon our decisions in Edger Kahwili v. Ameir Mbarak & Another, Civil Application No. 21 of 2017 [2020] TZCA 20 [23 February 2020; TanzLII]; and Mussa Hassani v. Barnabas Yohanna Shedafa (Legal Representative of the late Yohanna Shedafa), Civil Appeal No. 101 of 2018 [2020] TZCA 34 [27 February 2020; TanzLII]. In the latter case, the Court refrained to award costs considering that the matter involved two blood brothers. Replying for the first respondent, Mr. Dickson Pius Ndunguru, learned counsel, denied that the impugned decision contains any error on its face that can be deciphered without any long-drawn process. To fortify his submission, he cited our decision in Henry Muyaga v. Tanzania Telecommunications Company Ltd., Civil Application No. 2 of 2014 (unreported) for the proposition that an error on the face of the record by its connotation signifies an error which is evident per se from the record of the case, and it does not require detailed examination, scrutiny, and clarification either of the facts or the legal exposition. Mr. Ndunguru argued further that the award of costs is a matter of the Court's discretion. He supported the Court's decision to condemn the applicant to pay costs primarily because he lost the appeal and that the nullification of the two certificates of title did not make him a winner of the litigation. The application was also resisted by Mr. Cami lius Ruhinda, learned Principal State Attorney, assisted by Mr. Emmanuel Bakari, learned State Attorney, representing the second, third and fourth respondents. Mr. Ruhinda's essential submission was that the applicant's appeal was liable to be dismissed in its entirety once the Court found all the three grounds of appeal unmerited. As regards costs, he contended that apart from awarding of costs being a matter of the Court's discretion, it is manifestly illogical for one challenging an exercise of discretion as a manifest error. Citing Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218; and Isaya Linus Chengula v. Frank Nyika, Civil Application 487 of 2020 [2022] TZCA 167 [31 March, 2022; TanzLII] on what qualifies as a manifest error, he argued that the error complained of does not fit the legal definition. Moreover, he wondered if the applicant truly believed in the spirit of waiving costs between related litigants why at all stages of the instant litigation in the trial court and this Court he pleaded and pressed for costs. Rejoining, Mr. Ambindwile maintained that the error complained of fits the legal definition of a manifest error, which, he illustrated again by referring to Edger Kahwili (supra). 6 It is imperative to note, at the outset, that this application is predicated on rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") which provides thus: "66. r ( l ) The Courtmay review itsjudgmentor order, but no application for review shall be entertained except on the following grounds - (a) the decision was based on a manifest error on the face o f the record resulting in the miscarriage o f jus tice." As indicated earlier, the applicant assails the dispositive part of the impugned judgment alleging that it is manifestly erroneous and unjust. It is necessary to understand, at first, what the phrase '’m anifest error on the face o frecord resulting in injustice"to determine the issue at hand. We think we need not go beyond our decision in Chandrakant Joshubhai Patel (supra) at 225, where the Court, having examined several authorities on the matter, adopted from Mulla on the Code of Civil Procedure (14th Ed), at pages 2335 - 2336, the following abridged description of that expression: 'An error apparent on the face o f the record mustbe 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; State o f Gujarat v. Consumer Education and Research Centre (1981) AIR GUJ223]... Where the judgment did not effectively deal with or determine an important issue in the case, it can be reviewed on the ground of error apparent on the face of the record [BasseUos v. Athanasius (1955) 1 SCR 520]... But it is no ground for review that the judgment proceeds on an incorrect exposition o f the law [Chhajju Ram v. Neki (1922) 3 Lah. 127]. A mere error o f iaw is not a ground for review under this rule. That a decision is erroneous in iaw is no ground for ordering review: Utsaba v. Kandhuni (1973) AIR Ori. 94. It must further be an error apparent on the face o f the record. The fine o f demarcation between an error simpiiciter, and an error on the face o f the record may sometimes be thin. It can be said ofan error that it is apparent on the face o f the record when it is obvious and self-evident and does not require an elaborate argument to be established[Thungabhadra Industries Ltd v, State o f Andhra Pradesh (1964) SC 1372]. [Emphasis added] Numerous decisions of the Court have reiterated the above position: see, for example, Henry Muyaga {supra) P.9219 Abdon Edward Rwegasira v. The Judge Advocate General, Criminal Application No. 5 of 2011 [2016] TZCA 969 [2 December, 2016; TanzLII], Mashaka Henry 8 v, Republic, Criminal Application No. 2 of 2012, and Jayantkumar Chandubhai Patel and 3 Others v. The Attorney General and 2 Others, Civil Application No. 160 of 2016 (both unreported). We have dispassionately considered the arguments for and against the application through the prism of the settled position enunciated in Chandrakant Joshubhai Patel {supra). Without any hesitation, we uphold the concurrent submission by Mr. Ndunguru and Mr. Ruhinda that the error complained of falls short of the threshold. We will demonstrate. It is common ground that the applicant raised three grounds of appeal, which, in our considered view, aimed at persuading the Court to adjudge him the lawful owner of the disputed property as against the first respondent. Since the Court found no semblance of merit in all the three grounds, the applicant's appeal was liable to be wholly dismissed. Put different, the ineluctable dispositive order, in the circumstances of this matter, was dismissal of the entire appeal. Mr. Ambindwile fervently relied upon our order nullifying the first respondent's certificate of title along with the applicant's certificate as an indication that both parties equally shared the spoils in the case, With much respect, we do not share his view. It is too plain for argument that the applicant lost his whole claim of title as pleaded in the plaint. We do not see how one can argue convincingly that the applicant partly won the battle upon 9 the order of the Court reverting the title to the property to the original owner. Perhaps we should emphasise that the Court's order on the status of the two conflicting certificates was no more than a consequential edict made to meet ends of justice in the circumstances of the case. In the eyes of the law, the applicant is the losing party. Turning to the question of costs, we must emphasise that as submitted by the learned counsel, awarding of costs in any matter before this Court is discretionary. Indeed, that is the letter and spirit of rule 114 of the Rules, providing thus: "114.-(1) The Court may make such order as to the whole or anypart of the costs o f appeal in the court beiow as may bejust, and may assess them or direct taxation o f them; and in the case o fa second appeal this rule shall apply to costs in the trial court as well as in the first appellate court. (2) Where more than one advocate have appeared in a matter, the Court shall direct the number o f advocates entitled to costs, ''[emphasis added] At this point, it must be emphasised that the exercise of the discretion to award costs is usually guided by the settled principle that costs must follow the event. Where a court of law departs from that principle by directing otherwise, it must give reasons in writing for that course - see the Court's decisions in Njoro Furniture Mart Ltd. v. Tanzania Electric Supply Co. Ltd. [1995] T.L.R. 205; and Vijay Shantilal Chohan v. Abdul Shakule Halday & Another, Civil Appeal No, 105 of 2013 (unreported). See also Kiska Limited v. Vittorio De Angelis [1969] EA 6. Although both Njoro Furniture Mart Ltd. [supra) and Vijay Shantilal Chohan {supra) were decided based on the provisions of section 30(1) of the Civi l Procedure Code, Cap. 33, their common standpoint would guide the application of rule 114 of the Rules. In view of the foregoing viewpoint, we would readily agree with Mr. Ndunguru and Mr. Ruhinda that the Court rightly assigned costs by condemning the losing party to bear the burden of costs on the settled principle that costs follow the event. Admittedly/ in some cases the Court would withhold an award of costs in the usual spirit of promoting and safeguarding good relations between related or associated litigants. Nonetheless, that is an exception to the aforesaid principle. It cannot be the norm. At any rate, this case involved three other respondents who were certainly not related to the applicant that deserved a reimbursement of their costs. We recall that Mr. Ruhinda conjectured that if the applicant truly believed in the spirit of waiving costs between related litigants why at all stages of the instant litigation in the trial court and this Court he pleaded and pressed for costs. Indeed, it is, at least, manifest on the notice of motion before us that the applicant pleaded for an order that "costs o fand incidental to this application abide the result"oft the application. He expected the Court to award him costs if his application carried the day. As the saying goes, what's good for the goose is good for the gander. In conclusion, we are emphatically of the opinion that the error complained of is neither manifest on the record nor can it be established even if, for the sake of argument, an elaborate argument for it is attempted. In consequence, we dismiss the application with costs. DATED at SONGEA this 24th day of August, 2023. G. A. M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL This Judgment delivered this 24th day of August, 2023 in the presence of Mr. Emmanuel Bakari holding brief for Mr. Moses Ambindwile, learned counsel for the Applicant and Mr. Emmanuel Bakari holding brief for Mr. Dickson Ndunguru, learned counsel for the 1st Respondent and Mr. Emmanuel Bakari, learned State Attorney for the 2nd, 3rdand 4th respondents, is hereby certified as a true copy of the original. ^ 4 ; G. H. HERBERT DEPUTY REGISTRAR COURT OF APPEAL 12