FATUMA MAHMODU ALLY VS HASSAN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL REVIEW NO. 21163 OF 2024 (Originating from Land Case No. 61 of 2023 in the High Court of the United Republic of Tanzania) FATUMA MAHMOUD ALLY (as administratrix of The estate of the late Mahmoud Ally)......................... .............. APPLICANT VERSUS HASSAN ALLY MOHAMED (Administrator of the Estate of the late Kamari Abdi).......................................... I st RESPONDENT AMINA ALI........................................................................ 2nd RESPONDENT ZAHRA YUSUPH.................................................................3rd RESPONDENT HADIJA RAMADHANI MTINDA........................................... 4™ RESPONDENT FATUMA RAMADHANI MTINDA..........................................5™ RESPONDENT ABDALLAH SAAD AMER..................................................... 6™ RESPONDENT RULING 26/02/2025 &26/02/2025 NDUMBARO, J This is an application for review, brought by the applicant under the provision of section 78 (1) (a), Order XLII Rule I (1) (a) (b) and section 95 of the Civil Procedure Code Cap 33 R.E 2019. The applicant is basically seeking a review of the decision of this court in Land Case No. 61 of 2023 which was delivered on 12/08/2024. In this application, the i applicant has advanced two reasons reproduced hereunder, for this court to consider while granting the application. 1. That, the dismissed Land Case No. 61 of 2023 for beingtime- barred constitute an error on the face of record for being inconsistent with the Court of Appeal of Tanzania decision which binds this court. 2. That, the decision dismissing Land Case No. 61 of 2023 forbeing time-barred is an apparent error as it was reached without examining paragraphs in the plaint which narrated the sequence of the time of the discovery of the alleged fraud by the applicant. It is the prayer of the applicant that the decision of this court be substituted with orders that, Land Case No. 61 of 2023 was filed within time and the suit to proceed with hearing. When the matter was called on for hearing, the applicant was represented by advocate Wilson Ezekiel assisted by advocate Wilbard Massawe. On the other hand, the 1st, 2nd, 3rd & 5th respondents were represented by advocate Kerry Stanley Mra. Advocate Hamidu Mushi represented the 6th respondent. With leave of the court, the application was ordered to be disposed of by way of written submissions. Supporting the application, the applicant's advocate submitted that the applicant herein was the plaintiff in Land Case No. 61 of 2023. The counsel went on to state that, the respondents upon being served with the copy of the plaint, filed their written statement of defence coupled with preliminary objections. Among the preliminary objections raised was that the suit was time-barred. After hearing the preliminary objection, it was the finding of this Court that the suit was filed out of time and consequently, it was dismissed. It is the further submission of the counsel that, based on the advanced grounds for this review, the decision of this court is covered with errors which are apparent on the face of the record. Expounding, the counsel cited the decision of the Court of Appeal of Tanzania in the case of Oscar Karsan Kanji vs Abdallah Hassan (Suing as Personal Legal Representative of Hassan Abdallah), Civil Appeal No. 9 of 2020. The counsel submitted that, in the above-cited case, the Court of Appeal of Tanzania held that, it was improper to account accrual of the cause of action upon the death of the respondent's parents. The proper way of paging the accrual of the cause of action is from the date the claimant became aware of the alleged cause of action. In relation to the decision of this court which is the subject of this review, the counsel is of the view that this court in arriving at its decision disregarded both the provision of section 26 of the Law of Limitation Act Cap 89 R.E 2019 and the above-cited case. According to him, had the court taken into consideration section 26 of the Law of Limitation Act and the above decision of the Court of Appeal of Tanzania, it would have not come to a conclusion that Land Case No. 61 of 2023 was filed out of time. This is because the applicant herein became aware of the fraudulent transfer of the disputed property from her late father to the late Kamari Abdi on September 2023 and the dismissed suit was filed on 2nd November 2023. The counsel insisted that, since there is a standing position from an apex Court of this Country, then he persuaded this court to grant the application and order that Land Case No. 61 of 2023 was filed within the time and the suit be heard on merit. Responding to the above submission, the 1st, 2nd, 3rd & 5th respondents under the representation of advocate Kerry Mra filed a joint reply submission which is summarized as follows; It is the submission of the counsel that the application at hand is untenable as it is a disguised appeal brought contrary to the established principles. The counsel went on to state that in order for a court to review its own decision pursuant to Order XLII Rule 1 (1) of the Civil Procedure Code, three conditions must be established; (1). Discovery of new evidence which could not have been produced or come to the parties' mind after the exercise of due diligence. (2). Apparent errors on the face of the record and (3). Any other sufficient reasons. According to him, an apparent error on the face of record is a self- evident error on the face of record not involving an examination of arguments or that error which has to be established by a long drawn process and reasoning. Relating this argument to the application at hand, the counsel is of the view that this application cannot stand as the apparent errors established by the applicant cannot stand as apparent errors on the face of the record but they require a long drawn arguments to establish. The counsel further added that the applicant in this application is faulting the analysis of the trial judge together with the decision thereto through review of this court. To him, the proper avenue of challenging the decision of this court was by way of an appeal to the Court of Appeal of Tanzania. To support his argument, the counsel cited the decision of the Court of Appeal of Tanzania in the decision of Halmashauri ya Kijiji Cha Vilima Vitatu, Jumuiya ya Hifadhi ya Wanyama Pori Burunge vs Udaghwenga Bayay & 16 others, Civil Application No. 16 of 2013. The counsel insisted that this court had already made its ruling with respect to the preliminary objection raised by the respondents. If the applicant is not satisfied with the said decision she should knock on the doors of the Apex Court of the court for an appeal. The counsel also stated that the applicant should not confuse the powers of the court in review and appeal. The council concluded that the application at hand is not proper for review but it is a disguised appeal hence untenable. He therefore prayed this application be dismissed with costs. The 6th respondent through his advocate Mr. Hamidu also opposed the application through his written submission. His arguments are not farfetched from that of the 1st 2nd 3rd & 5th respondents. It is the submission of the counsel that looking at the memorandum of review together with the filed submission, the applicant wants the court to re­ evaluate and assess the findings of this court which according to him cannot be entertained through this application. As to whether there is an apparent error on the face of the record, the counsel submitted that for an application for review to be successful, the applicant must establish that there is a manifest error on the face of the record and that error has occasioned a miscarriage of justice. According to him, in this case, the applicant has failed to establish and prove errors on the face of the record. Citing the case of Majid Goa @ Vedastus vs The Republic, Criminal Application No. 11 of 2014 CAT at Mwanza, the counsel stated that the power for review cannot be exercised on the ground that the decision was erroneous on merit. The counsel thus concluded that this court cannot sit as an appellate court of its own decision. He therefore prayed dismissal of this application with costs. In rejoinder, the applicant's counsel reiterated what he submitted in submission in chief. The counsel also maintained that the raised grounds of review are proper in this application. I have thoroughly read the application together with the parties' submissions, this court is basically called upon to determine whether this application is meritorious. From the outset, I wish to state that I fully concur with the submissions of the respondent's counsel that the application at hand is a disguised appeal based on the grounds that were advanced by the applicant which were termed as grounds for review. As submitted by counsel for the respondents, the court does not review its own decision unless the set-out conditions are met. These conditions were articulated by the Court of Appeal of Tanzania in the case of Masudi Said Selemani v The Republic, Criminal Application No.92/107 of 2019 at page 5- 6 it was held; "The Court has powers to review its own decisions. Rule 66 (1) o f the Court o f Appeal Rules provides thus: - The Court may review its judgment or 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 fjustice; or (b) A party was wrongly deprived o f an opportunity to be heard (c) The court's decision is a nullity; or (d) The court had no jurisdiction to entertain the case; or (e) The judgment was procured illegally or by fraud or perjury". More so in the case of Transport Equipment Ltd v. Devram P. Valambhia, Civil Application No. 18 of 1993, the Court of Appeal of Tanzania held that; 8 "The court has inherentjurisdiction to review decision and it w iii do so in any o f the following circumstances to wit, where there is a manifest error on the face o f the record which resulted in miscarriage o fjustice, or where the decision was attained by fraud; or where a party was wrongly deprived o f the opportunity to be heard". I have gone through the grounds for this review advanced by the applicant, I hasten to say that the applicant is trying to challenge the merit of the decision of this court in Land Case No. 61 of 2023 by way of review. I am saying so on reasons that, looking at the first ground, the applicant is lamenting that this court in arriving at its decision, disregarded the position of the law provided by the Court of Appeal. With this ground, it is vivid that there is no apparent error that has been demonstrated by the applicant showing that there was a miscarriage of justice. What can be gathered from this ground is that the applicant wants to challenge the decision of this court which dismissed the suit for being filed out of time. On equal footing, in the second ground for review, the applicant laments that this court in arriving at its decision that the suit was time- barred, did not consider the paragraphs in the plaint which narrated the sequence of the time of the discovery of the alleged fraud by the 9 applicant. Essentially, the applicant is challenging the analysis and findings of this court. As correctly submitted by the respondents' counsel, where a decision is erroneous, it cannot suffice to be a ground for review. For it to be a ground for review it must demonstrate an error that is apparent on the face of the record when it is obvious and self- evident and does not require elaborative arguments. It is therefore the finding of this court that the applicant has not established anything sensible for this Court to review its decision. In that rpnarH t-hk anniirai-inn is without merit and it is dismissed with costs. D. D. NDUMBARO JUDGE 26/ 02/2025 10