leonia wo hotay ami xwastal vs paskali qalway gwangaway another 2023 tzhc 22260 30 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI MISC. CIVIL APPLICATION NO. 18 OF 2023 (Arising from this Court's order in Mise. Land Application(s) No. 1 of2023 High Court Manyara at Babati) LEONIA W/O HOTAY AMI XWASTAL.................... APPLICANT VERSUS PASKALI QALWAY GWANGAWAY...........................1st RESPONDENT FRANCIS BARAZA HONDA...................................... 2nd RESPONDENT JUDGMENT icfh& 3Cfh October 2023 Kahyoza, J.: Before this Court is an application for review of this Court's decision delivered on the 24th April, 2023 in Mise. Land Application No. 1 /2023. Leonia w/o Hotay Ami Xwastal, the applicant, seeks this Court to review its decision because she was served with the counter affidavit containing false information, which she needed to counter before the filed the written submission. The issue is whether the applicant has adduced sufficient reason(s) for this Court to review its ruling and order. A brief background is that, Leonia w/o Hotay Ami Xwastal applied for extension of time to appeal against the decision of the District Land and i Housing Tribunal. This Court (Barthy, J.) ordered the application to be heard by way of written submissions and set down the schedule for filing the submission and the ruling date. The applicant, who enjoyed the services of Mr. Patrick Ami, learned advocate, defaulted to file the submission as ordered. The Court ruled that Leonia w/o Hotay Ami Xwastal's failure to file written submission was tantamount to failure to appear and prosecute the application. It struck out the application for want of prosecution with costs. The applicant was dissatisfied. She lodged an application for review raising two grounds, which I wish to reproduce them verbatim as follows- "1. The trial judge erred in setting the 2&h day of April this year as the date for ruling after the written submission have been submitted when we met on the 22nd February inspite of the fact that I informed the court that I was not served with the copy of the counter affidavit thus being unable to know the case the respondents had against us. 2. The trial judge erred in setting the date for ruling instead of the date of mention because when later I was served with the copy of the counter affidavit I discovered that paragraph 6 and the same was a total lie which I had to refute in a separate affidavit before making any written submissions lest the court infers that it is the habit of the applicant to bestow powers of attorney on people who are not worthy it." 2 The application for review was assigned to the judge who entertained the application. Mr. Patrick Ami, the applicant's advocate requested the judge to disqualify herself on the ground that he preferred a fresh mind judge to consider the application. He argued that- ”1 was thinking that this matter was prior determined by you, since this application has been assigned to you, I find that you will not be in the position to determine it without being affected with your previous decision. It is my prayer that this matter be entertained another judge." I wish to state that it was, with due respect to Mr. Ami, my learned friend, a misdirection to ask the judge to disqualify to entertain an application for review simply because she heard the application which was under review. The law is clear that the judge who heard the application and struck out was the competent judge to entertain the application for review. The application for review is instituted before the same court and heard by the same judge or magistrate. An application for review is not an appeal. 3 Has the applicant adduced sufficient grounds for review? The law, that is Order XLII r. 1 (1) (a) of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC) is very explicit that a court can only review its decree or order if the following grounds exist- (a) there must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or (b) there was a mistake or error apparent on the face of the record; or (c) there were other sufficient reasons; and (d) the application must have been made without undue delay. The pertinent issue for determination herein, therefore, is whether the applicant has established that there is discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the order was made as alleged to warrant an order of review. The applicant's advocate submitted that the judge ordered him to file the submission before the respondent served him with the counter affidavit. He notified the Court that he was not served with the counter affidavit. He added that he could not file the counter affidavit because the respondent had not served him with the counter affidavit. 4 He added that, after the respondent served him with a counter affidavit, he discovered that the counter affidavit contained false information, which he was obliged to counter before he could file the written submission. He had to wait for the date fixed for the ruling to address the Court, what impeded him from complying with the order. He contended that the judge erred to fix a ruling date when she was aware that the respondent had not served him with the counter affidavit. To support the application, he argued that an application for review may be filed upon discovery of new and important evidence. The false information in the respondent's counter affidavit was new evidence which upon its discovery, the applicant had reasons to apply for review. He added that if, the judge gave him an opportunity to appear before her, he would have addressed the court that there was false information in the counter affidavit which ought to be dealt with before filing of the written submission. He referred the Court to Art. 107(A) (1) (e) of the Constitution of the United Republic of Tanzania. He concluded that the application for review had merit and prayed the same to be granted. The respondent had nothing to reply as he had no advocate, who was absent and reported sick. 5 An application for review is different from an appeal as it can be lodged when there exists any of the conditions stipulated above; thus, review is not as wide as an appeal. One of the grounds for review is discovery of new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made. The applicant's advocate submitted that after he was served with the counter affidavit, he discovered that the counter affidavit contained false information. After the discovery, he was unable to file the written submission as he could file the written submission after he had opposed the alleged false information in the counter affidavit. I took time to ponder whether there was discovery of new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the order was made: I found none. There is no dispute that the Court ordered parties to this application to file written submissions before the respondent served the applicant with a counter affidavit. Later, the respondent served the applicant with the counter affidavit, which contained false information as the applicant alleged. I am of the view that the fact that the applicant discovered that the counter affidavit contained false information was not a bar for him to file the written submission. Having discovered that the counter affidavit contained false 6 information, the applicant would have filed an affidavit in reply to the counter affidavit and proceeded to file the written submission. In addition, the applicant's discovery that the respondent's counter affidavit contained falsehood, was not the discovery of new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the order was made. The applicant was aware that the respondent's counter affidavit contained false information before the Court struck out the application he is seeking to review. Thus, the applicant discovered nothing new and important matter, which was not within the knowledge, after the order was made to support her application for review. The applicant did not convince me to apply Article 107(A) of the Constitution, which stipulates that courts should not be tied up with legal technicality in administering justice. I am of the position that it is vital for parties to a suit to abide with the laid down procedures and established principles of law or else we shall cause anarchy. To allow, a person to disobey clear provisions of the law or court orders for the sake of administering justice would lead to chaos than justice. The court order must be complied with until it is reversed. The applicant was duty bound to file written submission as the Court ordered. She disobeyed the order at her own peril. 7 In the end, I am not persuaded that the applicant discovered new and important matter, which after the exercise of due diligence, was not within her knowledge at the time the order was made to entitle this Court to review its decision. I find no merit in the application for review and dismissed with costs. It is ordered accordingly. COURT: Judgment delivered in the presence of the respondent and in the absence of the applicant and his advocate duly informed. B/C Ms. Fatina present. J.R. KAHYOZA, JUDGE 30. 10. 2023 8