harel mallac tanzania ltd vs junaco t limited and another 2022 tzhccomd 225 25 july 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM . COMMERCIAL REVIEW NO. 03 OF 2022 (Review appiication arising from the Ru/ing ofthis Honourabie Court (Hon. C.P. MKEHA, J) in execution proceedings in respect of Commerciai Case No. 159 of2014) HAREL MALLAC (TANZANIA) LTD..................................... APPLICANT VERSUS JUNACO (T) LIMITED................................................... RESPONDENT DAR ES SALAAM WATER AND SEWAGE CORPORATION LTD............................... NECESSARY PARTY Date of Last Order: 07/06/2022 Date of Ruling: 25/07/2022 RULING MKEHA, J. The applicant is moving the court to review its ruling delivered on 16th February, 2022 on the following grounds: i 1. That, this Honourable court ruled that, there was no judgment from which the consent decree could have been extracted pursuant to Order XX Rule 6 (1) while the suit was settled amicably pursuant to Order XXIII Rule 3 of the Civil Procedure Code. 2. An order struck out (sic) the. application for execution for being incompetent on the reason of having un-executable decree which is not in accord with Order XXIII Rule 3 of the Civil Procedure Code was entered while there is sufficient proof of compromise of the suit by the parties, thus existence of both, a valid uncontested deed of settlement and this court's order on the deed of settlement dated 13th October, 2015 supplementing the consent decree by the parties, an order capable of being executed. 3. This Honourable Court entertained the respondent's arguments on the validity of the decree with no allegations by the Respondent as to fraud or misrepresentation on the deed of settlement, the basis of the decree. 4. Having found errors on the decree for being un-executable, errors occasioned by neither of the parties, this Honourable Court failed to amend the decree and issue an executable decree. 2 The application is made under Section 78 (1) (b) and Order XLII Rules 1 (b) and 3 of the Civil Procedure Code. The application was argued by way of written submissions. Whereas Mr. John Gamaya learned advocate represented the applicant, Mr. Adronicus Byamungu learned advocate represented the respondent. Essentially, all along the applicant's submissions, the learned advocate for the applicant condemned the Executing Court for having arrived at an erroneous decision. In view of Mr. Gamaya learned advocate for the applicant, it was wrong on part of the Executing Court to hold that there was no judgment from which the consent decree could have been extracted, that, it was wrong to strike out the application for execution in the presence of sufficient proof of presence of compromise between the parties, that, it was wrong to entertain arguments relating to validity of decree in the absence of allegations of fraud or misrepresentation on part of the judgment debtor and that, having found errors on the decree which was being executed the Executing Court failed to amend the decree so as to issue an executable decree. The learned advocate pointed to no apparent error on the face of the record on the basis of which a motion for review could be properly made. 3 In his reply submissions, Mr. Byamungu learned advocate warned the court not to review its decision on merit as if it was sitting as an appellate court. The only issue for determination is whether the present application raises sufficient grounds for review. Whereas the learned advocate blamed the court for holding that there was no judgment from which consent decree could have been extracted, actually, all what the court observed was the fact that, there was no evidence to the effect that, after the signing of compromise between the parties, an order was made recording the compromise in compliance with Order XXIII Rule 3 of the Civil Procedure Code before passing the decree. The Executing Court further observed and held that, the decree was making reference to the deed of settlement without clearly specifying the reliefs granted or other determination of the suit which made it incapable of being executed. If that was an erroneous conclusion, that cannot be rectified by this court by way of review. As hinted earlier in this ruling, in all the grounds for review, the applicant is asking the court to review its decision for it being erroneous. In ISSAYA LINUS CHENGULA VS. FRANK NYIKA, CIVIL APPLICATION NO. 487/13 OF 2020, the Court of Appeal held that, a mere error of law is not a ground fdr ordering review. 4 For the foregoing reasons, the application is dismissed for want of merit. I make no order as to costs. Dated at DAR ES SALAAM this 25th day of JULY, 2022. Judge 25/07/2022 Court: Ruling is delivered in the presence of the parties' advocates. Judge 25/07/2022 5