20141024 TZHC Iringa

IN THE HIGH COURT OF TANZANIA

AT IRINGA MISCELLANbUS CIVIL APPLICATION NO. 9 OF 2013 (From the decision of the High Court o:t: Tanzania at Iringa in (PC) Civil Appeal No. 2 of 2008; Iringa District Court Civil Appeal No. 26 of 2002 and Original Civil Case No. 5 of 2002 of Iringa Urban Primary Court) 1. HASHIM MWALONGO } · ................ APPLICANTS 2. HAWA KIBWANA -

VERSUS 1. ABD. ALLAH MWALONGO } ....... RESPONDENTS 2. ZUBER! MWALONGO · 4/9/2014 & 24/10/2014

RULING MADAM SHANGALI, J. The applicants, Hashim Mwalongo and Hawa Kibwana filed • a Memorandum of Review; seeking review of the two decisions of the High Court of Tanzania both originating from the decision of the Iringa District Court in Civil Appeal No. 26 of 2002. The applicants have filed twelve grounds but essentially all circumventing to one complaint, namely· there is a glaring error on the face of records in that there are two contradictory and diametrically opposed High Court decisions all arising from one • and the same Iringa District Court, Civil Appeal No. 26 of 2002. !he facts of this application may be summarized as follows; there was a matter, Civil Case No. 5 of 2002, which was filed at the lringa Urban Primary Court as between Juma Mwalongo and Mwajuma Mwalongo (both deceased and the applicants are now representing them as administrator and administratrix respectively} agains~ the respondents in this · application. The matter concerned the sale of the inherited house at Miyomboni area which was mutually allocated to the parties. Through ex·parte hearing the Urban Primary·Court ordered the sale of the house and equal division of the proceeds to the parties. An application by the present respondents to the trial court for the said order to be set aside was dismissed and thus the ex-parte judgment was confirmed. The respondents through (PC) Civil Appeal No. 26

of 2002 appealed to Iringa District Court whereupon the District Court quashed the proceedings of the Primary Court and set aside its orders. The present applicants were not satisfied· with that decision. They preferred an appeal to this court namely (PC) Civil Appeal No. 62 o~ 2002 High Court at Mbeya. On.14/5/2005 this court (Hon. Othman, J. as he_then was) 2 . . ruled 1n favour of the applicants (appellants) and allowed the appeal with costs. On ·1/6/2006 the respond ents in this application filed an applicatio'n to the High Court at Mbeya as Misc. Civil Application No ..· 62 of 2006 seeking for the extension of time to file an application for leave to appeal·. to the Court of Appeal against the ·decisi~n ~f thi~ court dated 14/5/2005; it must be noted that although the applicati~n was filed as Misc. Civil Application No. • 62 of 2006 the same was act1:1-ally filed in the same (PC) Civil Appeal No. 62 of 2002. Through. counter affidavit filed on 24/11/2006 the applicants in this application came up with a notice of preliminary objection. When the application· came before Hon. Othman, J. (as_he then was) on 13/12/2006 the court take note of the preliminary objection and· fixed ~ mention date on 7/3/2007. When it came for mention on 7/3/2007 the· court fixed hearing date 25/04/2007. That order went on with adjournment until 19/12/2007 wpen Hon. Lukelelwa, J. ordered ,. that the app~ication be transferrea to Iringa High Court Registry under Rule 7 (4) of the High Cout Registries Rules following the · . estabHshment of Iringa High Court Registry. On its arrival to the new court registry, the (PC) Civil Appeal . No. 62 of 2002. was re-registered as (PC) Civil Appeal No. 2 of 3 .;;. _.

2008. The appeal/ application was assigned before Hon. Mchome, J. Unfortunately the application was not heard and determined before Hon. Mchome, J. following his tran~,fer to Moshi High Court Registry. The record of proceedings re'veals that fallowing that transfer the case was eventually re-assigned before Hon. Jundu, J. (as he then was). On 10/06/2008 the court (Hon. Jundu, J. as he then was) dismissed the appeal for want of prosecution. The applicants 1n this application then filed Misc. Civil Application No. 11 of 2008 to this Court seeking for orders that the or,der dated 10/6/2008 by Hon. Jundu, J. (as he then was) be vacated and set aside as it was issued per incuriam.. The said application was struck out on 18/2/2010 (Hon. Mkuye, J.) for being incompetent before the court. Through Misc. Civil Application No. 1 of 2010 the _applicants were allowed_ by this Court on 28/5/2013 (Hon. Mkuye, J.) to lodge the instant application. Before this Court · Mr. Malangalila, learned Counsel appeared for the applicants while Mwaka~un~ Law Cham.hers submits for the second respondent. By the order of _this court parties were ordered, and c·omplied· accordingly, to. argue· the application by way of written submissions. Mr. Malangalila, learned Counsel, contends that, there. are 4 .. two.High C~urt de~isions which are; the judgment and decree in .. . "• (PC) Civil Appeal No. 62 of . 2002

which was delivered on ·i4;os;2·oos at'Mbeya High Court Registry by Hon. Othman, J. ' '(as he then was) and the rul1ng . ~ated 10/6/2008 given in (PC) Civil App'eal N~. '2. ~f 2008 at Iri~ga High Court Registry by Hon. Jun.du J. (as he then ·was). That being the case since the two ' opposing decisions co.mes from one court with jurisdiction to try . . I the case . theri one has to be struck out for the benefit of justice ' and only one decision should stanc;l. The 2 nd respondent's reply is to the effect that the judgment ' • J and decree iri (PC) Civil Appeal No. 62 of 2002 given at Mbeya registry was based on determinatiJn whether the sale of disputed ·house with.out' coi;ise~t of .all heirs was lawfully done while the decision dated 10/6/2008 given in (PC) Civil Appeal No. 2 of 1 2·008 given at Iringa Registry iaddresses the issue of non I . appearance of applicants before the courts of law. Thus the decisions are not ,opposing again'.st each other rather they are ' i de~ing ~th two different issues. A need to :3trike out either of therri as. contended . by the applica;nts I is not there. Thus allowing . the instant' application will be unjust to the 2 nd respondent. .. In -his. rejoinder, Mr. Malangalila reiterated what he had . I submitted·in his main submission[ _The issue under determination is whether there is a glaring 5 or apparent error on the face of the records to

warrant the rectification by this Court. Order XLII Rule 1 of the Civil Procedure Code, Cap 33 R.E 2002 which provides for an application for review states:- "1 - (1) Any person considering himself aggrieved 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 knqwledge or could not be produced by him at the time 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 ofJu.dgment to the court which passed the decree or made the order". [Emphasis is mine]. From the above provision of law the applicants have termed their application as one which falls, "on account of some mistake or error apparent on. the face of the record' . . 6 ' '. In the case of African Marble Company Limited (AMC) Versus Tanzania Saruji Corporation (TS~), Civil Application No .. 132 of 2005~ CoU:rt of Appeal of Tanzania (Unreported), Hon. Munuo J'.A. stated that:- '' We . shall st'art by reiterating the criteria for review in ' . thrs ·court, in the case of Transport Equipment Ltd. Versus Devram P. Valambhia, Civil Application No. 18 of 1993, .Cpurt of Appeal of Tanzania (unreported) a ~ ~ . . " .full bench_ of, seven justices considered the Courts ' . powe~ to. r?vieip. its decisions and held that - . THE COURT HAS THE INHERENT JURISDICTION TO '.

REVIEW DECISIONS AND IT WILL DO SO IN ANY OF 4 THE FOLLOWING CIRCUMSTANCES TO WIT, WHERE

THERE IS A MANIFEST ERROR ON THE FACE OF THE

RECORD WHICH RESULTED IN MISCARRIAGE OF JUSTICE, OR WHERE THE DECISION WAS ATTAINED BY FRAUD; OR WHERE A PARTY WAS WRONGLY . DEPRIVED OF THE OPPORTUNITY TO BE HEARD. With regard to an error apparent on the face of the record, Mu:fla, Indian Civil Procedure Code, 14th Edition. Pages .2335 - 36, states that -

AN ERROR APPARENT ON THE FACE OF RECORD

MUST BE SUCH AS CAN BE SEEN BY ONE WHO 7 WRITES 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 THER~ MAY CONCENABLY BE TWO OPINIONS." Essentially, it is clear as pointed out herein above in a brief background to this application q.11d .as rightly contended by the applicants' Advocate that there are two conflicting decisions which deals with the same Civil Appeal No. 26 of 2002 (Iringa District Court) i.e. the (PC) Civil Appeal No. 62 of 2002 which was delivered on 14/05/2005 at Mbeya Registry by Hon. Othman, J. (as he then was) which upheld the Appeal (and thus dismisses the Iringa District Court's decision); and a decision by Hon. Jundu, J. (as he then was) in (PC) Civil Appeal No. 2 of 2008 dated 10/6/2008 which "dismisses the appeal'. According to the records of proceedings, when the matter was placed before t Hon. Jundu, J. (as he then was) he was supposed to determine the pending application for extension .of time to file an application for leave to appeal to the Court of Appeal filed by the respondents i.e. Misc. Civil Application No. 6~ of 2006 which was incorporated in the case file of (PC) Civil Appeal No. 62 of 2002. Instead, and following non-appearance of the applicants, the Court inadvertently dismissed the appeal instead of the pending ' application.. That appeal was in actual fact already been determined and upheld by Hon. Othman, J. (as he then was). 8 From the foregoing it is obvious

that the decision of Hon. Jundu, J. Cas he then was) dated 10/6/2008 was per incuriam ,and indeed an error apparent on the face of the record. There t was no such· appeal existing hefore the High Court Iring a Registry capable of being dismissed for want of prosecution. Therefore in the interest of justice the order of Hon. Jundu, J. (as.he then was) dated 10/6/2008 must be vacated to avoid miscarriage of justice on the part of the applicants. 4 In conclusion, this application is meritorious and for the above reasons the order of this court dated 10/06/2008 · dismissing the (PC) Civil Appeal No. 62 of 2002 is hereby vacated. f further order that the pending Misc. Civil Application No. 62 of 2006 be resumed for continuation with the heating of __the ,,. ·prelimihary obJection therein in _accordance with the law. . . Fot avoidance of doubt the. application lS granted. Each party to shoulder its costs. M. S. SHANGALI

JUDGE 24/10/2014 Ruling del1vered in the presence of Mr. Malangalila, learned 9