shembazi another vs commissioner of prisons another 2002 tzhc 6 8 may 2002

IN THE HIGH COURT OF 'l'!\r>iZilNIJi 1\ T Di,R ES S~lLJ\AM JABIR BM(ARI SHEMBi\ZI ) ..... "',) . ELIZABETH JUSTINE ) Versus ) .0 ••• 0 •••••• ) _KDviAOO --=---~J::.. . ... On 17/9/2001, this court dismissed the suit which was filed by Jabir Bl)kari Shembazi and Rizabeth Justine ngainst the Commissioner of Prisons and the Attorney General on the ground that the suit was time barred. ~ne plnintiffs are now before tbis court with a memorandum of review in which they nre seeking for e. review of the whole ruling on four grounds:- (i) That the trial jUdge erred in law ~nd fact for holding that the suit is founded on law of tort - trespass. (ii) The trial judge erred in law and fnct in holding that the sui t Vias time barred. (iii) That the trial judge failed to t~k0 into consideration the fact that p~ragraphs 4, 5, 6, 7, 8, 9 ~nd 10 of the plaint disclose the fact that the suit is founded on land ownership ~1d trespass or encroachment thoreto. (tv) The trial judge erred in law and fact in holding that P~rt 1, First schedule item 6 of the Law of Limitation J1ct, 1971 wns applicable. The memorundum of review has been drawn by Mr. John Wallace Daffa, an advocate for the Legal and Human Rights Centre. Unfortunately, the provision under which it h~s been drawn has not been disclosed. When the suit was filed, the plaintiffs were granted legal ~d by the Legal Aid Committee of the F~culty of Law of the University of Dar es Salaam. Mrs Zain5bu Muruke, learned Advocate represented them. I pause here t~ eek myself whether what is l»W before this court ip a memorundum of review or a memorundum of appeal. The en~bling provisions for filing a review are contained in Section 78 of the Civil Procedure Codo as well as Order XLII of the Civil Procedure Code. m. terms of Order XLII rule I a review can be sought where there is a discovery- of neW and important matter or evidence which, after exercise of due diligence was not within kn~wl,dgeor could not be prOduced at the time the decree ~s a mistake or error which ip apparent ~ 'I' passed or where there ~3 the face of the record for any other sufficient reason. The case of !1-..'.t~,?]lB.2..R:mkJ?f .p~mm~F..Y.e..L.f.Q.SJ!l .. ~l1ub2,ji li98g TLR 127 refers. The question whiChhDs to be asked and answered is whether there is a discovery of new and important evidence, or an error or mist~ke apparent on the face of the record or any otijer sufficient reason. The re1'iew was argtled by written submissions. '1he applic~nts though they appeared in person were assisted by Hr. John Wallace Daffa, the 1€'arned Advocate from the Legal and Human Rights Centre ""nd the respondent were represented by Chidowo, Learned State Attorney although in the written submission the Learned State Attorney who draw the some has not di.sclosed his / her name. It is impor-. taut for the author of any document which is filed in court to disclose his/ her name rathcr tha~ giving just a signature. I hope this remark will be taken care of in future for easy of court's reference. In their submission the applic3nts referred to paras 4, 5, 6, 7, 8, 9 and 10 of the pl,!lintand said that the suit b founded on ownership of the plot and not ,on tortious trespass and 80 the compensation which i~ pr~yed for is just a-;':S~ltunt ·of the e~croachment. '·Th~'RQint~mphesized through out the submission. 'il1eycontended that given what was everred in the pl~int, which establishes that the suit is founded on ownership of the l~nd, the limitation period is 12 years and so the .suit was filed within time. They prDyed the'ltthe review be allowed. The case of Ram2..-dheXl~~ Nk2.!,JE.0kY_~~!.~ li98y TLR 56 ~_~~t~ was cited to support the assertion th~t the right to sue for an encroachment does not arise however long land stays uncultivated until it i8 encroached upon. In reply, the Le~ned State Attorney focused his attention on the provisions of the 1sU dealing with a review. That is Section 78 and Order XLII. The Learned State Attorney prayed that the review be dismissed becauce none of the grounds which permit granting a review have been proved. In reply, the applicants submitted that the reply by the State Attorney was filed out of time without leave of the court and so the s~me should be dismissed. They also reiterated their earlier submission that the suit is founded on the ownership of the l·~d and not on the tort of trespass. On the grounds for granting an application for review, the applicants emphasized the ground on &ppe~ent error and other sufficient cause. Let me pause here and ask whether on the submissions made by the porties to this review the grounds for grant~ng the review have been eGtabli~hod. After h2ving gone through the mernorundum for review and the submissions I am satified that the grounds for ~ting a review h~ve not been established. Starting with the ground on a mistake or error which is apparent on the face of the record, I do not see any. If there is any problem~ it might be associated with failure to grasp the fncts pleaded and come out with wh~t the applicant say should hove been the decision of the court. In this respect, it is a question which is associated with competency but cannot be, associated with a mistake or error which is apparent on the face of the record. A mistake or error must be so reflected on the face of the record. !Is regards discovery of new and important evidence 1Jlhich~laS not within the applicants knowledge, none hes been shown in these review proceedings. Is there any sufficient renson? I do not see any. It may also be of interest to point out that what the applicants h8ve drawn nnd labelled a memorundum of review is not, strictly speaking, a memorund~~ of review. It ~~ a memorundum of appeal which has been erroniously lnbelled a memorundum of review. The grounds given are purely grounds for an appeal and not grounds for review. The applicants hC've persued an appeal in a wronG forum. This court has no jurisdiction to entertain an nppe9l again8t its own decision. Changing the title of the document which was filed in court by labelling it a memorundum of Review while it is, strictly speaking, a memorundum of appeal, does not help the applicants. The application for review has no merit. It is dismissed. No order for costs. JULGE 8/05/2002