MISC

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 16321 OF 2024 (Arising from Mise. Land Application No. 12450 and Land Case No. 6 of2023) HASSAN ABDALLAH KITIGI........................................................ 1stAPPLICANT UWESU ABDALLAH MOHAMED................................................... 2ndAPPLICAN SELEMAN JUMA SALAMBA.................... 3rd APPLICANT VERSUS TEMEKE MUNICIPAL COUNCIL........................... 1st RESPONDENT ATTORNEY GENERAL.......................... 2nd RESPONDENT RULING 13h August 2024 & ICC September 2024 L. HEMED, J, Previously, the applicants herein had instituted Land Case No.06 of 2023 against the respondents herein claiming ownership of the business cages, shops and frames situated at Keko Magurumbasi Market, Temeke Municipality Dar es Salaam. While the said suit was in the process of hearing the plaintiffs' case, on 24th November 2024, the court dismissed it for want of prosecution following the plaintiffs' refusal to prosecute it even after having ordered by the court. After having granted leave to file application for Review out of time, vide Mise. Land Application No.12450 of i 2024, the applicants presented the instant application for review under section 78(l)(a) and Order XLII Rule l(l)(a) of the Civil Procedure Code, [Cap.33 R.E 2019] on the following ground:- "That the Hon. Court erred in law and fact when it ordered the applicants to proceed with their case in the absence of their legal representation and the court did not accede to receive court summons and cause list in which the applicant's advocate Juma Nassoro was appearing in criminal sessions no 218 of 2022 R. vs Said Bakari Mawazo before Hon. Judge Ngunyaie and criminal session no. 211 of 2022 R vs. Haruna Mussa Lugeye and Two Others; before Hon. Judge Mrisha." Having gone through the ground for review, I found it sounding as a ground of appeal in disguise making this court functus officio to determine it. Parties were directed to address the said point by way of written submissions. I have thoroughly read the submissions so filed and the question is whether the court has jurisdiction to determine the ground presented for review. In arguing the application, Mr. Juma Nassoro, learned advocate represented the applicants while the respondents enjoyed the service of Mr. Thomas Maushi, learned state attorney. 2 Mr. Nassoro argued that the court is not functus officio to determine the matter at hand. He averred that the applicants filed this application for review on account of mistake apparent on the face of record. In his view, the record of Land Case No.6 of 2023 shows that the applicants had the legal service of an advocate. He faults that, the court erroneously ordered them to proceed with the case and not accede to receive the court summons and the cause list showing that the advocate of the applicants was in criminal sessions. The learned counsel was of the view that such error is apparent on the face of record capable of being reviewed under Order XLII Rule 3 of the Civil Procedure Code (supra). The leaned counsel proceeded further to argue that review under section 78(l)(a) and Order XLII Rule 1 of the CPC is an alternative to an appeal. He concluded by stating that the court is not functus officio to determine the matter at hand, citing the decision in Tanzania Fertilizer Company Limited vs. National Insurance Corporation of Tanzania Limited and Another (2016) TLS LR 55 and in Kumundu vs. R (1973) EA 540. In reply, the learned state attorney was of the view that this application is misplaced. In his view, the complaints that the court erred to dismiss the suit while there was summons and cause list submitted showing that the advocate was attending criminal sessions cannot be subjected for review. He insisted that by determining the said ground, the court will be doing so as an appellate court in its own decision because the applicants are seeking the court to revisit legal, evidential and factual matters. I am at one with the learned counsel for the parties that under section 78(l)(a) and Order XLII Rule l(l)(a) of the Civil Procedure Code {supra), the Court has power to review its own decision. I am on the same page with the counsel for the applicants that in light with the cited provisions, review is a right of a party who- i. Is aggrieved by the decree or order; ii. Has the right to appeal against the decree or order under the Civil Procedure Code but did not prefer an appeal; and iii. Has no right of appeal against the decree or order under the Civil Procedure Code. 4 In light of the above, it appears that review can be an alternative of an appeal however, subject to the doctrine of functus officio. The doctrine of functus officio envisages that once the court makes a decision on certain matter its hands become tied up. The doctrine was well explained in Bibi Kisoko Medard vs Minister for Lands Housing and Urban Development and Another[1993] TLR 250, where the court had this to say:- "Z/7 a matter ofjudicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio." The court, which makes a decision, cannot reconstitutes itself as an appellate court to correct its decision. It can only correct errors apparent on the face of the decision by way of review. In Grand Alliance limited vs Mr. Wilfred Lucas Tarimo and 4 others, Civil Application No. 229 of 2020, the court of Appeal of Tanzania observed thus: - "7776 court may review its judgment or order, but no application for review shall be entertained except on the following grounds: 5 (3) The decision was based on a manifest error on the face of the record resulting in the miscarriage of justice; (b) A party was wrongly deprived of an opportunity to be heard; (c) The court's decision is a nullity; or (d) The court had no jurisdiction to entertain the case; (e) The judgment was procured illegally or by fraud or perjury.zz I have examined the ground of review and found that it does not fit the above criteria. In the instant application, the applicants are faulting the ruling of this court in Land Case No.6 of 2023 when it ordered them to proceed with their case in the absence of their legal representation. They also allege that the court did not accede to receive court summons and cause list in which the applicants' advocate was appearing. Such kind of a ground, calls the court to re-assess evidence, which in my respectful opinion, is an appeal through the backdoor. The Court was confronted with similar circumstance in Ishfaque Shabir Yusufali(As Administrator of 6 the Estates of the Late SHABIR YUSUFALI) vs. Salim Lakhani and 2 others, Civil Application No. 521/01 of 2022. The court had this to say:- ”7776 review process should never be allowed to be used as an appeal in disguise. There must be an end to litigation, be it in civil or criminal proceedings. A call to re-assess the evidence, in our respectful opinion, is an appeal through the backdoor. The applicant and those of his like who want to test the court's legal ingenuity to the limit should understand that we have no jurisdiction to sit on appeal over our own judgments. "[Emphasis added] Application for review can be preferred in the circumstance where the court intends to make correction of errors a parent on the face of its decision in order to reflect its manifest intended decision of the court. This was substantiated in Shadrack Balinago vs. Fikiri Mohamed @ Hamza And 2 Others, Civil Application No.25/8 of 2019, thus:- "Z/7 a review, the court has inherent jurisdiction to call its judgment in order to give effect to its manifest intention on what clearly would have been the intention of the court had some matter not been inadvertently omitted. 7 I have examined the impugned ruling and found that what the applicants are seeking to review is the exact decision intended by the court. Such kind of decision cannot be re-assessed or varied by the same court that made it. It can only be challenged by way of an appeal. From the foregoing, I find this court functus officio to determine the application for review, which is an appeal in disguise. I thus proceed to dismiss in its entirety with no orders as to costs. Order accordingly. ...... A •/'J-? •. ' X J. '■ . DATED at DAR ES SALAAM this ZO*,'September, 2024 JUDGE 8