CIVIL APPEAL NO 317 OF 2021 JOVET TANZANIA LIMITED VS BAVARIA N V

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A. KIHWELO. J.A And MASOUD, 3.A.) CIVIL APPEAL NO. 317 OF 2021 JOVET TANZANIA LIM ITED........................................................ APPELLANT VERSUS BAVARIA N .V ...... ......................... ..................................... RESPONDENT (Appeal from Ruling and Order of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Nanqela, J.) dated the 30th day of June, 2021 in Miscellaneous Commercial Application No. 10 of 2020 JUDGMENT OF THE COURT 5th & 15th August, 2024 SEHEL, J.A.: Initially, the appellant, Jovet Tanzania Limited, instituted a suit, Commercial Case No. 94 of 2018 before the High Court of Tanzania, Commercial Division against the respondent, Bavaria N.V., claiming, among others, for a declaratory order that the respondent's notice of termination of the Exclusive Distribution Agreement (the Agreement) was null and void. It is noted from the record of appeal that the suit was stayed pending reference to arbitration. The decision to stay the proceedings amused the appellant. It therefore lodged an appeal before this Court vide Civil Appeal No. 207 of 2018. On the other hand, the respondent proceeded with its intention to pursue the arbitration proceedings. Pursuant to clause 22 of the Agreement, it commenced the proceedings in the Netherlands at the Netherlands Arbitration Institute (the NAI) by filing a request for arbitration. The appellant made a short answer to the request. Accordingly, the administrator of NAI appointed one arbitrator, W.H.F.M. Cortenraad to hear and determine the dispute. The arbitral tribunal made a proposal to the parties for the order of the arbitral proceedings wherein both parties informed it that they had no comments. In that respect, arbitral proceedings commenced by each party filing its pleadings. Thereafter, hearing was conducted in accordance with the NAI Arbitration Rules. At the end, the final arbitral award was issued in favour of the respondent. The arbitral award was forwarded to the High Court for registration and admitted as Miscellaneous Commercial Cause No. 11 of 2020. After being served with the notice of the request for registration of the final arbitral award, the appellant filed a petition seeking to set aside the final arbitral award vide Miscellaneous Commercial Cause No. 31 of 2020. The two applications were consolidated. In addition, both the appellant and the respondent filed preliminary objections challenging the competency of the application for registration and the petition for setting aside the final arbitral award respectively. Having heard the points of law raised by the appellant, the High Court found merit on the second limb of the point of law which was couched thus: "The High Court Jacked jurisdiction to entertain the appiication/petition whiie the Order o f the High Court to refer the m atter to arbitration is the subject m atter o f the Appeai in C ivii Appeai No. 207 o f 2018, which is s till pending for determ ination in the Court o f Appeai o f Tanzania a t Dar es Salaam ." Consequently, it dismissed the Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020. Believing that there was a manifest error on the face of record, the respondent moved the High Court to review its dismissal order on ground that there was such error on the record. Having heard the parties, the High Court found merit in the application. Accordingly, it proceeded to grant the application for review by substituting for it an order of temporary stay of proceedings in Consolidated Miscellaneous 3 Commercial Cause Nos. 11 & 31 of 2020 pending determination of the Civil Appeal No. 207 of 2018 which was before the Court. Aggrieved with the outcome, the appellant lodged the present appeal assailing the High Court's decision on the following grounds: 1) That, the learned tria l judge erred in Jaw and fact by holding that, there was indeed a need to have decision issued in the Consolidated M iscellaneous Commercial Cause Nos. 11 & 31 o f2020 reviewed by the High Court with a view to correct the apparent m istake in its fin al order and yet the High Court was functus officio. 2) That, the learned tria ljudge erred in law and fact by finding that the High Court was seized with jurisdiction to stay the proceedings o f the Consolidated Commercial Cause Nos. 11 & 31 o f2020 pending hearing and determ ination o f the C ivil Appeal No. 207 o f 2018 pending in the Court which is challenging the order o f the High Court to refer the m atter to Arbitration. 3) That, the learned tria l judge erred in law and fact by holding that the common meaning o f the word "halt" means "to stop something or bring som ething to stop '' and proceeded to conclude that, this is !’ tantam ount to staying the m atter tem porarily pending som ething to happen. 4) That, the learned tria l judge erred in law and fact by setting aside the dism issal order and substituted with an order that the proceedings in Consolidated Miscellaneous Com m ercial Cause Nos. 11 & 31 o f 2020 be stayed pending the determ ination o f the C ivil Appeal No. 207 o f 2018 by the Court. 4 5) That, the learned tria l judge erred in lavs and fact by finding that the order o f the High Court which dism issed the Consolidated M iscellaneous Commercial Cause Nos. 11 & 31 o f 2020 was tainted with errors o f law on the face o f record which occasioned injustice to the respondent 6) That, the learned tria l judge erred in law and fact by failure to address the key issue raised by the appellant's counsel in the High Court that the review sh all not preferred on erroneous decision which a party has a right o f appeal. Pursuant to Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules both parties filed written submissions for and against the appeal which were adopted during hearing of the appeal. It is prudent to point out here that the appellant combined grounds 1, 2, 4 and 5 in its written submissions which, in essence, they all raise an issue whether the dismissal order of the Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020 contained an error on face of record warranting the High Court to review its own decision. The remaining two grounds of appeal, that is, grounds 3 and 6 were separately argued. When the appeal was placed before us for hearing, the appellant was represented by Mr. Brayson Shayo, learned advocate, whereas, the respondent had the legal services of Mr. Gerald Shita Nangi, also learned advocate. Arguing the appeal, Mr. Shayo first adopted the written submissions and stressed that the scope of review is very limited as it can only be entertained if there is an error apparent on the face of the record which resulted in miscarriage of justice. That, it cannot be exercised for re-agitating arguments already considered by the court or for rehearing the arguments. He argued that, having heard parties' submissions for and against the preliminary objection on whether it had jurisdiction to entertain the application for registering an award, the High Court was fully satisfied that it had no jurisdiction to entertain the Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020. He added that, by reviewing its own decision and substituting it with an order for stay of proceedings, the High Court was sitting on its own appeal which was not the purpose of review. He elaborated that there was no apparent error on the face of the record for the High Court to review and correct its own decision; it could not substitute the final order of dismissal with an order of stay of proceedings without first over hauling its first set of reasoning and substitute with another set of reasoning. He, therefore, argued that the review process was in disguise of an appeal. 6 Mr. Shayo further faulted the decision of the High Court in the application of the word 'halt' It was his submission that the ordinary meaning of the word 'halt' required the High Court to dismiss the application for registration of the final award as it had no jurisdiction to entertain the same. To reinforce his submission that the High Court was not seized with the jurisdiction after the notice of appeal was filed, he cited to us the decision of the' Court in the case of Mohamed Enterprises Tanzania Limited The Chief Harbour Master & Another (Civil Appeal No. 24 of 2.015) [2018] TZCA 280 (26 October 2018; TANZLII) which cited the case of Matsushita Electric Co. Ltd v. Charles George t/a C.G. Travers, Civil Application No. 71 of 2001 (unreported) wherein it was held that: "Once a notice o f appeal is file d under Rule 76 (now Rule 83 (1) o f the Rules) then the Court is seized o f the m atter in exclusion o f the High Court except from applications specifically provided foe such as, leave to appeal on provision o f a certificate o f law ." At the end, Mr. Shayo invited us to find merit in the grounds of S' .• 'im'1 appeal and allow the appeal with costs. Mr. Nangi replied to the submission made by his learned friend by first adopting the written submissions in reply and acknowledging the position of law regarding review jurisdiction that the error must be so clear that it can be easily seen by one who runs and reads. He argued that the High Court decision cannot be faulted as it correctly exercised its review jurisdiction having noted that there was apparent error on the face of record. He went on to explain that, after the High Court had observed that there was a pending appeal before the Court, though it had jurisdiction, it could not proceed to determine the Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020. It had to stay the proceedings to pave way or wait for the Court to determine the pending appeal. In fortifying his submission, he cited to us the cases of Serenity on the Lake Ltd v. Dorcus Martin Nyanda (Civil Revision No. 1 of 2019) [2019] TZCA 65 (12 April 2019; TANZLII) and Sylvester Lwegira Bandio & Another v. The National Bank of Commerce Limited (Consolidated Civil Appeals Nos. 95 and 29 of 2010) [2016] TZCA 212 (29 January 2016; TANZLII) that cited the case of Arcado Ntagazwa v. Buyagera Bunyambo [1997] T.L.R. 242. According to Mr. Nangi, review was appropriate remedy because there was an apparent error on the face of record which needed to be corrected in terms of Order XLVII rule 1 of the Civil Procedure Code (the 8 CPC). With those submissions, Mr. Nangi prayed for the appeal to be dismissed with costs. In his rejoinder submission, Mr. Shayo reiterated that the respondent used the process of review as a back door to an appeal since the alleged error was not apparent on the face of the record. Accordingly, he reiterated his earlier prayer that the appeal be found meritorious and be allowed with costs. Having dispassionately followed the contending submissions made by the counsel for the parties, the issue for our determination concerning all six grounds of appeal is whether there was apparent error for the High Court to exercise its review jurisdiction in Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020. Our starting point will be to consider the relevant provisions of the law governing review before the High Court. Section 78 (1) of the CPC provides: "Subject to any conditions and lim itations prescribed under section 77, any person considering him self aggrieved- 9 (a) by decree or order from which an appeal is allow ed by this Code but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allow ed by this Code, may apply for a review o fjudgm ent to the court which passed the decree or made Athe < order, and the court . . -■ t may make such order thereon as it thinks fit " The grounds available for filing a review application are set out in Order XLVII rule 1 (1) of the CPC that: "Any person considering him self'aggrieved- (a) by a decree or order from . which an appeal is allowed, but from which no appeal has been preferred; v (b) by a decree or order from which no appeal is allowed, and who, from the discovery o f new and im portant m atter or evidence which, after the exercise o f due diligence, was not within his knowledge or could not be produced by him a t the time when the decree was passed or order made, or on account o f some mistake or error apparent on the face o f the record, or for any other sufficient reason, 10 : desires to obtain a review o f the decree passed or order made against him, may apply for a review o f judgm ent to the court which passed the decree or made the order." The above provision of the law makes it clear that the same court which passed the order may review its judgment (i) on discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason. We have indicated earlier on that the respondent applied for review on ground that there was manifest error apparent on the face of the record in dismissing the Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020 following an objection raised by the appellant that there was a pending appeal before the Court. Having heard the application, the High Court reviewed its dismissal order and substituted it with a stay of proceedings order pending determination of the appeal which was pending before this Court vide Civil Appeal No. 207 of 2018. ii M ulla on the Code o f C ivil Procedure, Sixteen Edition, Volume 4, by Solil Paul and Anupam Srivastava at pages 4117 and 4118 described the circumstances under which the High Court can review its own decision on an error apparent on the face of record as provided under Order XLVII rule 1 of the Indian CiviS Procedure Code which is in pari m ateria to our Order XLVII rule 1 of the CPC that: ■ )c " The scope o f the pow er o f review as envisaged under Order 47 rule 1 C ivil Procedure Code is very lim ited and the review m ust be cohfined strictly only to the errors apparent on the face o f the record. A re­ appraisal o f the evidence on the record for finding out the error would amount to an exercise o f appellate jurisdictionr which is not perm issible by the statute. The review proceeding are not by way o f an appeal and have to be strictly confined to the scope and am bit o f Order 47 rule 1, C ivil Procedure Code..." It follows therefore that, by its very nature, the term ' error apparent on the face o f record' signifies an error which is self-evident from the record and does not require detailed examination, scrutiny or elucidation of the facts. If an error requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order XLVII rule 1 of the CPC. 12 The ensuing question is whether the complained error of the dismissal order made by the High Court instead of staying of proceedings was an error apparent on the face of record. It must be noted that once a format notice of intention to appeal has been lodged, then the Court is seized with that matter with exclusion of applications whose jurisdiction have been statutorily vested to the High Court, such as, an application for certificate on a point of law - see the case of Matsushita Electric Co. Ltd v. Charles George t/a C.G. Travers (supra). Additionally, when the High Court is faced with a matter whose appeal is before the Court, it is required to stay the proceedings at once to allow the process of appeal to take effect or until the notice is withdrawn or deemed to be withdrawn - see the case of Arcado Ntagazwa v. Buyagera Bunyambo (supra). Having noted that its jurisdiction had been ousted by the pendency of the appeal, the High Court was required to halt or stay the proceedings in the Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020 in order to pave way for the appeal process. Therefore, we are not persuaded with the argument of Mr. Shayo that the word 'halt' meant the High Court was required to dismiss the Consolidated Miscellaneous Commercial Cause Nos. 11 & 31 of 2020. Given the 13 peculiar circumstances of the present appeal, we are satisfied that the dismissal order was an error apparent on the face of the record which the High Court rightly exercised its review jurisdiction to correct it. In the end, we do not find merit to the appeal. Accordingly, we proceed to dismiss it with costs. DATED at DAR ES SALAAM this 13th day of August, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL ' ' i ■" ' f The Judgment delivered this 15th day of August, 2024 in the presence of Mr. Bivery B. Lyabonga, learned counsel for the appellant and Mr. Gerald Nangi, learned counsel for the respondent; is hereby certified as a true copy of the original.