JAMBO KWANZA LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL REVIEW NO.8214 OF 2024 (Originating from Civil Case No. 3420 of 2024) JAMBO KWANZA LIMITED PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF TANZANIA FREIGHT FORWARDERS ASSOCIATION 1^ DEFENDANT THE ELECTION COMMITTEE OF THE TANZANIA FREIGHT FORWADERS ASSOCIATION 2"''' DEFENDANT THE CHAIRMAN OF THE TANZANIA FREIGHT FORWARDERS ASSOCIATION ELECTION COMMITTEE 3^^ DEFENDANT EDWARD JOHN URIO 4^" DEFENDANT RULING Date oflast Order: 19.06.2024 Date of Ruling: 30.08.2024 NGUNYALE,J. On 22"^ March, 2024 the court did strike out the plaint with costs in Civil Case No. 3420 of 2024 for being Incompetent. Following such decision the applicant filed the present application for review per Section 78 (1)(a) and Order XLII Rule (1)(1)(a) of the Civil Procedure Code Cap 33 R. E 2019 on the following grounds: - 1. That, the learned judge erred apparently on face of record by striking out the suit with costs on account of failure to plead the board resolution of the applicant company in the plaint, while the same was pleaded under paragraph 14 ofthe plaint 2. That, the learned judge erred apparently on face of records by striking out the suit with costs, in ignorance of the standing legal authorities of the Court of Appeal which form the doctrine ofstare decisis. In terms of the decision of the Court of Appeal, the requirement of the board resolution or company resolution is no longer a good law in the contemporary times in a suit preferred by a company. The authorities in which were referred and argued in the reply written submission filed in court. The matter went for hearing where the appiicant appeared represented by Ferdinand Makore assisted by Ereneus Swai both iearned Counsels whilst the respondents were represented by Anindumi Semu and Albert Lema also iearned advocates. The applicant Counsel submitted that they are before the court seeking the court to revise its own decision in a ruling dated 22""^ March, 2024 striking out the suit sustaining a preliminary objection that the suit was bad in law for lack of authorization from its institution from a member organization in form of a board resolution. When the court is called upon to review its earlier decision, it means the applicant is duty bound to establish the errors manifest on the face of records. He referred the court to the case of East African Development Bank vs Blueline Enterprises Limited, Civil Application No. 47 of 2010 where the Court of Appeal made an informative remark which is binding in this Court, in the following words; 'We would say in the Hng ofthe authorities at hand, that an error which wiii ground a review, whether it be one offact or iaw, wiii be an error over which there should be no dispute and which results in ajudgment which ought to be corrected as a matter ofjustice.... An Error on the fact of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a iong-drawn process of reasoning on points on which there may conceivable be two opinions..." He went on to submit that in the present application for review the first ground squarely represent a pure point of law and fact which fits within the parameters of application for review. The court did strike out the suit on the ground that the board resolution sanctioned the institution of the suit was not pleaded in the plaint. This Is an error manifest on the face of the records. The court ought to look at paragraph 14 of the plaint which reads; "That following the seriousness and nature of this suit, the Board of Directors of the plaintiff has resolved sanctioning the Institution of this suit and its resultant resolutions will be filed In this court In the due course ofthis proceedings" He went on to submit that since the fact in relation to the board resolution was clearly pleaded in the plaint showing that the board of directors of the plaintiff's company has resolved sanctioning the institution of a suit, and as such, the actual resolution will be filed in due course of the proceedings, it was their view that this court erred on the face of records by striking out the suit with costs on the ground that the same was never pleaded nor attached in the plaint. The court acted on assumption because the same was pleaded. The law was allowing them to file additional documents and any later stage which were not annexed or filed when their suit was filed in court. He stated further that Order VII Rule 14 (2) and Order XIII Rule 1 (1) of the Civil Procedure Code Cap 33 R.E 2019 are relevant provisions on additional documents. It was their view that suppose the court had considered paragraph 14 of the plaint and further considered the provisions of the law as cited in this submission, it would not have arrived at a decision it arrived. Since the resolution was pleaded, it was expected that, the plaintiff would have filed It In due course. The court was not legally justified to sustain the preliminary objection raised by the respondents. In support of the second ground of the application for review they submitted that the requirement of board resolution when corporate bodies institute their lawsuits is not longer a good law unless the suit emanates from the internal conflict of the company, then this court was not legaily vindicated to struck out the suit on that account alone. He said that he referred two Court of Appeal cases through their reply in arguing the objections, in both cases of Mohan's Oysterbay Drinks Limited versus British America Tobbacco Kenya Limited, Civil Application No. 70/2022 and Simba Papers Converters Limited versus Packaging and Stationary Manufacturers Limited and Another, Civil Appeal No. 280 of 2017 the law on board resolutions is settled. The necessity of the board resolution is when the dispute subject to a suit is within the organization or is internal. But when the dispute is not within the company then the board resolution becomes implausibie. This court as subordinate to the Court of Appeal was bound to follow those decision under the doctrine of stare decisls. He referred the court to the celebrated case of Jumuiya ya Wafanyakazi Tanzania versus Kiwanda Cha Uchapishaji Cha Taifa [1998] TLR 146 where the Court of Appeal lamented as follows; "all courts and tribunals below the Court of Appeal are bound by decisions ofthe Court regardless oftheir correctness" In the premises, they were convinced in their minds that, since the decisions of the Court of Appeal were binding to this court, this court committed an error on face of records by disregarding the doctrine of stare decisis. They invited the court to review its decision. In reply the respondents jointly contested the position submitted by the appiicants stating that the applicant appiication does not meet the test of conditions necessary for invoking review as iaid in Section 78 and Order XLII Rule (1)(a) of the Civil Procedure Code [Cap 33 R. E 2019]. They referred to the case of Peiagia Kokuhirwa Herman vs Japheti Mtani Wang'uba Civil Review No. 4 of 2021 which referred to the celebrated case of Transport Equipments Ltd versus Devram P Vaiambia, Civil Application NO. 18 of 1993 in which the Court of Appeal held that: - "The court has inherentjurisdiction to review decision and it wHi do so in any of the foiiowing circumstances to wit, where there is a manifest error on the face of the record which resuited in miscarriage ofjustice or where the decision was tainted by fraud or where a party was wrongly deprived ofthe opportunity to be heard' h In the Pelagia case the learned judge referred to another case of Chadrakarant Joshubhai Patel vs Republic [2004] TLR 218 where the Court of Appeal held that: "That a decision in erroneous in iaw is no ground for ordering review. Thus, the ingredient of an operative error that first, there ought to be an error, second the error has to be manifested on the face of record and third the error must resuited in miscarriage ofjustice" They cited another case of Caster Mrema vs Tanzania Port Authority Misc Application No. 545 of 2020 where the High Court In addressing the issue of discovery of the new position of the Court of Appeal on the ground for review she referred to the case of Serengeti Breweries versus Josephine Boniface Civil Appeal No. 150 of 2015 where it was held that such discovery cannot be termed as new and important evidence hence it does not constitute a valid ground of review. In the case at hand the circumstance in the first ground does not suggest a ground from review known in law. The said document was not attached in the pleadings. Even on the second ground he is attempting to misdirect the court by saying that he learned judge was ignorance of the standing position of the law as to the doctrine of stare decisis. The applicant tends to seek justice by misdirecting the court. I am grateful for the industrial work and research done by the parties. They have been helpful for my determination. From the submission of the parties, there is not dispute that this court has jurisdiction to review its own decision in circumstance recognized by law and practice. The only problem is whether the principles relevant for exercising such powers of review have been met by the applicant or not. The decision in Transport Equipment Limited (supra) is very relevant to revisit the circumstances which attract review. Those circumstances are one, where there is a manifest error on the face of he record which resulted In miscarriage of justice and two where the decision has been attained by fraud or a party has been denied a right to be heard. In respect of the first circumstance, there should be an error on the face of record i. e the error which is so obvious. The applicant in the first ground complains that the court did strike out the plaint on account of failure to plead the board resolution of the applicant company. I think this is not an error on the face of record because even the relevant paragraph in the plaint did not give a certain position about the alleged board resolution. He explained that he was expecting to file it at a later stage the act which the court found it wanting. Therefore, this was not an error apparent on the ! / face of record relevant to attract the court to exercise Its powers or review. The applicant ought to opt for appeal or refile the plaint with a proper board resolution. The court finds that nothing was overlooked as an error to be corrected by way of review as alleged In the first ground. The error which the applicant attempts to establish does not meet the test that it should not be established by long drawn process but should be obvious error as stated in the case of East Africa Development Bank (supra) cited by the applicant Counsel. The second ground for review the applicant complain that this court acted in ignorance of the standing legal position on the requirement of the board resolution or company resolution. It was his view that company resolution is no longer a good law. In reverting to the principles relevant for review, the second ground of review as raised by the applicant is far away from the circumstances extracted from case law including the case of Transport Equipment Ltd (supra). I therefore agree with the respondent that a decision reached in erroneous in law cannot be corrected by way of review. The case of Chadrakarant Joshubhai Patel (supra) which was cited by the respondent is relevant In this scenario. The applicant seems to be dissatisfied with the ruling dated 22nd March 2024 but he opted for review instead of appeal the route which cannot held. In the case of Ngasa s/o Nhabi versus Republic, Criminal Application No. 2 of 2014 the Court of Appeal clarified that; - "an application for review is by no means an appeal in disguise whereby an erroneous decision can be reheard and corrected. Consequently, the application stands dismissed with costs. It is so ordered. Dated at Dar es Salaam this 30**^ day of August, 2024. O ORT 0^ o y o N > D. P. N^nyale JUDGE Ruling delivered this 30'*" day of August, 2024 in presence of Ms. Leticia Msechu holding brief for Ferdinandi Makore for the applicant and Anindumi Semu for the respondents. 50^ o o y CD X N D. P. nyale Ui JUDGE 10