gidion mandesi vs charles john mkanga 2021 tzhclandd 857 23 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 354 OF 2021 (Arising from the Judgment of the High Court (Land Division) at Dar es Salaam in Misc. Land Application No. 637 of 2020) GIDION MANDESI................... APPLICANT VERSUS CHARLES JOHN M KAN GA........... .......................... RESPONDENT RULING Date of Last Order: 01/11/2021 Date of Ruting: 23/11/2021 A. MSAFIRI, J: This is an application for Review of the decision of this Court in Misc. Land Application No. 637 of 2020. In the said Misc. Land Application, the current applicant was also the applicant and had filed for an extension of time to file an appeal out of time. After hearing, the said application was dismissed with costs for lack of sufficient reasons. After dismissal, the applicant has filed this application seeking for Review on the following grounds; 1. That there are discovery of new and important matter or evidence to . witjMemorandum of Understanding, affidavit by Fredrick Camiliius F i Mkatambo, report on tactile ballot folders training session and three copies of tactile ballot folders which could not be produced by the applicant at the time when the judgment/order was made against the applicant and the same were not in his possession during that time. 2. That, the said new discovery ofimportant matters or evidence explicitly mentioned the name of the applicant and his major role as a trainer, member of the committee responsible for tactile ballot folder to be used by visually impaired persons during 2020 General Election, assignment performed by him in Mbeya Region and duration of assignment and funds used. Such discovery of new and important matter or evidence are so relevant for a review of the judgment (sic). 3. That review of the judgment/order made against the applicant is a perfect and preferred option to enable the applicant to have him (sic) effectively heard based on the discovery of new and important matter or evidence which were not within his knowledge or could not be produced by him at the time when the judgment/order was made against him. 4. That, the application for review of judgment is available remedy to ensure that the applicant has fairly (sic) heard by the Court through review in order to obtain justice (sic). 5. That, depending on the circumstances surrounding the case and the fact that the fault relied on by the triedjudge to dismiss with costs the Misc. Land Application No. 634 of 2020 was purely on the error as committed by the Writer of the NEC letter dated l$h October, 2020 by issuing a joint letter to introduce ihe applicant and others for the task 2 to be performed regarding activity of Tactile Ballot Folder training in Tanzania toward 2020 Genera! Election. And not the fault on part of the applicant. 6. That, the saidjudgment/order which dismissed with costs Misc. Land Application No. 634 of 2020 has negative effect to prevent the applicant from presenting his intended memorandum of appeal to challenge the decision of the District Land and Housing Tribunal for liaia in Land Application No. 207 of 2012 which is an action resulting to injustice on part of the applicant. 7. That, there as obtained (sic) an affidavit sworn by Fredrick Camiiiius Mkatambo in support of this Review. 8. That, being an expert of Tactile Ballot Folder, the applicant was assigned to assist by way of conducting training for two weeks in Mbeya starting from l$h to 2&h ofOctober, 2020so as to enable voters with visual impairments to cast their votes in secrecy which such period of two weeks spent by the applicant in Mbeya caused him to delay in presenting his memorandum ofappeal within 14 days granted on 19h of October2020 by this Court. He prayed for the orders that; the review be granted, costs of the application, any other relief as this court thinks fit to grant. The application was heard viva voce whereby the applicant appeared in person while the respondent was represented by Mr. Samson Ombuya, learned advocate. In support of the application, the applicant started his submissions by praying to merge his eight (8) grounds of review into three^ 3 grounds. That is grounds No. 1, 2, 3,7 and 8 are merged as 1st ground, grounds 4 and 6 as 2nd ground and ground 5 will be the 3rd ground. He submitted that the 1st ground is on new evidence which could not be adduced when order against the applicant was made in Misc. Application No. 637/2020. He stated that the new evidence is as follows; (i) A Memorandum of Understanding which is attached to the memorandum of review as annexure Pl. (ii) Affidavit sworn by Fredrick Camillius Mkatambo which is annexure P.7. (iii) Tactile Ballot Folders attached as annexures P.3, 4, 5. (iv) Report on Tactile Ballot Folder Training session attached as annexures P2. He argued that these documents are new and important in this matter and he could not tender them during the hearing of Misc. Land Application No. 637/2020 because the same were in the hands of Special Committee responsible for tactile ballot for persons with disabilities. That these documents proves that he was indeed in the said special task for two weeks, training at Mbeya in which the applicant was one of the teachers sent to educate the blinds on the use of tactile ballot folders. On the 2nd ground, the applicant submitted that the provisions of Section 78 and Order XXII Rule 1(1) of the Civil Procedure Code gives him the right for review for the interest of justice and fair hearing. On 3rd ground, the applicant submitted That he stands to suffer irreparable loss of his property in dispute if the cobrt will not grant the application of 4 review and furthermore, his intention of filing memorandum of appeal to challenge the decision of the District Land and Housing Tribunal for Ilala in Land Application No. 207 of 2012 will be defeated. Mr. Samson Ombuya, learned advocate, vehemently contested the application and submitted that, there is no any new evidence or any matter which the applicant was unable to retrieve at the time of filing the dismissed Misc. Application No. 637/2020. On Memorandum of Understanding which was filed by the applicant as annexure Pl, Mr. Ombuya was of the view that it was signed on 14/10/2020 while Misc. Land Application was filed on 09/11/2020, so the applicant was aware of its existence at the time of filing the said application. On the affidavit sworn by Fredrick Camillius Mkatambo, Mr. Ombuya was of the belief that the same is a fellow member of the applicant therefore, at the time of filing Misc. Application No. 637/2020, the applicant ought to have obtained such an affidavit earlier so the same is not a new evidence. In relation to annexures P3, P4 and P5 respectively which were for "nafasi ya Udiwani, Ubunge and 4/ra/s"respectively, the said documents ought to have been in possession of the applicant from the date the General Election was conducted which was on 28/10/2020 to the date of filing Misc. Application No. 637/2020 which was filed on 09/11/2020. I 5 On annexure P6 which is a letter issued by "Tume ya Uchaguzf dated 15/10/2020, Mr. Ombuya stated that the same has already been deliberated upon by this court in Misc. Appeal No. 637/2020, so it is not a new evidence. Mr. Ombuya averred that, the submitted documents by the applicant cannot warrant this court to grant the application for review as there is no any letter which shows that the applicant has taken sufficient steps while at National Electoral Committee (NEC), by writing to the same to be availed with the necessary documents and that the request was denied. On the issue of applicant suffering irreparable loss, Mr. Ombuya pointed that it is the respondent who is suffering from the applicants conducts because whenever the respondent attempts to execute a decree, the applicant has been in a tendency of preventing the same by filing applications. He prayed for dismissal of this application with costs. In rejoinder, the applicant reiterated his submission in chief insisting that the respondent is not disputing the fact that he, the applicant participated in the said task. Having heard the submissions from the parties, it is no dispute that this court under Section 78 of Civil Procedure Code (supra) is empowered to receive and entertain and application for review of its decision. The criteria to be considered are provided under Order XLH Rule 1 of the Civil Procedure Code (supra) are as provided thus; the court may review its decision in the following scenarios; Kp\ L . 6 i) When there is a discovery ofnew and important matter or evidence which after exercising due diligence was not within the knowledge or could not be produced by the applicant at the time when the decree was passed or order made, or; ii) On account of some mistakes or error apparent on the face of the record, or for any the sufficient reason, desires to obtain review of the decree passed or order made against him, may apply for a review ofjudgment of the Court which passed the decree or made the order. In this application, the applicant has capitalized his arguments on the first criteria which bases on discovery of new and important evidence which could not be produced by him at the time when the order was made. The applicant has submitted documents attached to his affidavit as annexures Pl, P2, P3, P4, P5 and P7. His argument is that these documents are new and important in this matter and he could not tender them during the hearing of Misc. Land Application No. 637/2020 because they were in the hands of Special Committee responsible for tactile ballot for persons with disabilities and they were not in his hand. So, he was unable to produce them in court at that time. The counsel for respondent argued that there is no any new evidence and that the applicant was able to produce all the documents he is producing n°w. 7 From these contending arguments, the issue for determination is whether the applicant has managed to prove that he could not or was unable to produce the documents (annexures Pl - P7) at the time of hearing of Misc. Application No. 637/2020. Order XLII, Rule 4 (2) (b) of the Civil Procedure Code (supra) provides as follows; "(b); no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made, without strict proof ofsuch allegation. (Emphasis added). The applicant has told the Court that he was a Trainer in two weeks training, training the vision impaired people and people with disabilities to be able to vote in general election by using tactic ballot. The training which was a special project between the National Electrical Commission and Blinds Committee was conducted in Mbeya. That when he left for Mbeya, he has filed Misc. Land Application No. 559/2020 before this Court, which the ruling was delivered on 19/10/2020. In the said ruling, the Hon. Judge granted the applicant an extension of time of 14 days within which to file his appeal. The applicant returned to Dar es Salaam on 27/10/2020. He came to follow up on the matter, but at that time he was remained with only one day to file his Memorandum of Appeal within the time, and he was unable to do so. Mb- 8 He decided to file an application for extension of time which is Misc. Land Application No. 637/2020. By the ruling of that Application which I have ready carefully, the applicant stated that he could not file the appeal within time as per the court order because on 15/10/2020 he was assigned by NEC as a coordinator to travel to Mbeya for training sessions. During the hearing of that Application, the applicant produced annexure P6 which is a letter from NEC addressing the coordinators. The Court was of the view that the applicant did not produce sufficient reasons for delay or any proof to show that he was indeed in Mbeya for training and also there was no any evidence to prove that he is a member of Tactile Ballot Folders Committee "Kamati ya Tactile Ballot Folders" In the current application, the applicant has now came with a new evidence which prove that he was indeed a coordinator who was assigned to conduct the training in Mbeya from 15/10/2020 to 27/10/2020. This is revealed in annexure P7, the affidavit of Fredrick Camillius Mkatambo and annexure Pl, the Memorandum of Understanding between Information Centre Disability (ICD) and Gideon Kaino Mandes, the applicant. I have disregarded Annexures P2, P3, P4 and P5 because I have failed to see how these documents are connected with the applicant or how they prove that the applicant was in Mbeya on the stated dates conducting training. Annexure P6 has already been determined by this court in the Misc. Land Application No. 637/2020, so I will also disregard it. Basing on Annexures Pl and P7,1 will return to my major issue for determination on 9 whether the applicant was unable to tender the same at the time of hearing of Misc. Land Application No. 637/2020. The applicant is claiming that he was unable to tender them during the hearing of the said Application because they were in the hands of Special Committee for Tactile Ballots for Persons with Disabilities. Annexure Pl is a Memorandum of Understanding between the applicant and Information Centre on Disability. I find it hard to agree with the applicant that this Memorandum of Understanding which was signed on 14/10/2020 was at all the time in the hands of Special Committee up to June 2021 when Misc. Application No. 637 of 2020 was heard. This is because I believe that this document being the Memorandum of Understanding between the two parties, each party had its own copy and the same was made on 14/10/2020 way back before the impugned Ruling. The applicant has not proved whether he made any effort to acquire those documents which he claims was in the hands of Special Committee. I am therefore inclined to agree with counsel for the respondent that the applicant could have shown that he took sufficient steps by at least writing a letter to the Special Committee or NEC asking to be availed with those documents and the request was denied. On the annexure P7 which is the affidavit sworn by one Fredrick Camillius Mkatambo, the same states that the applicant was assigned to conduct the training in Mbeya and he travelled on 15/10/2020 and returned to Dar es Salaam on 27/10/2020. However, the-applicant has not shown why this io Fredick Camillius Mkatambo did not swear this affidavit during the hearing of Misc. Application No. 637 of 2020. It is not revealed whether at that time Mr. Mkatambo was not available or was unknown to the applicant so as to be unable to get him to swear an affidavit. in that juncture I find that the applicant has failed to satisfy the Court that the documents he has produced was not within his knowledge or could not be produced by him at the time the ruling on Misc. Application No. 637/2020 was delivered as required under Order XUI Order 1 of the Civil Procedure Code. The applicant has failed to produce strict proof of his claim that he was unable to procure, the now produced evidence during the hearing of Application No. 637/2020 as required under order XUI Rule 4(2) (b) of the Civil Procedure Code. The applicant has invited this Court to apply Article 107 A (2) paragraph (e) of the Constitution of the United Republic of Tanzania, Cap 2 which urge the Courts not to cling on technicalities but rather focus on dispensing justice. However, the mandatory procedures set by the Law should be adhered as it is timely and again stated by the courts of law in numerous authorities. Among the authorities is the case of Mondorosi Village Council & 2 others vs. Tanzania Breweries Limited & 4 others, Civil Appeal No. 66 of 2017, CAT - Arusha (unreported) where it was decided by the Court of appeal that; the overriding objective principle cannot be applied blindly against mandatory provisions of procedural laws. li From this juncture, I have no option but to find that this Application is devoid of merit and it is hereby dismissed. I make no order for costs. It is so ordered. Right of Appeal explained. Dated at Dar es Salaam this 23rd November 2021 A. MSAFI JUDGE 12