martin maturu another vs mwajuma mohamed another 2019 tzhclandd 52 6 september 2019

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES ALAAM MISC LAND APPLICATION NO. 28 OF 2018 (Original from Misc. No. 124 of 2018 at the High Court, Land Division before Madame J. A. DE- MELLO, Judge) MARTIN MATURU................................................... 1st APPLICANT AMBAKISYE MWAKAJANGWA.............................. 2nd APPLICANT VERSUS MWAJUMA MOHAMED................. ....... .......... 1st RESPONDENT ANIFA YAHAYA RAJABU..................................... 2nd RESPONDENT JUDGMENT IN REVIEW Date of Last Order: 26/08/2019 Date of Ruling: 06/09/2019 MALLA BA, J The two applicants, Martin Maturu and Ambakisye Mwakajangwa, are applying for review of the Order of this court (Hon. J. A. De-Mello, J) dismissing their application for extension of time, for being misconceived. Page 1 of 8 The impugned Order is dated 10/12/2018. The applicants have raised 3 grounds of review as follows:- 1. That, there is an error apparent on the face o f records, that the court did not determine the application for extension o f time to file an appeal against the dismissal order o f the District Land and Housing Tribunal for coast region; 2. That there is an error apparent on the fact o f the record that the Order Intended to be appealed against not an interlocutory order but limitation o f time which is capable o f finally disposing o f the suit; and 3. Thatthere is an error apparent on the fact o f the records, that the Court issued a dismissed order in a matter that has not been filed in the Court and argued. Before dealing with this matter, this court wishes to note that, a review is normally heard by the Judge who passed the decision sought to be reviewed. In the present matter, the decision sought to be reviewed was given by Hon. J. A. De-Mello, J who has since been transferred from this division. As such, she is unable to continue dealing with the matter. It is in those circumstances that the same has been assigned to me. I will therefore step into the shoes of Hon. J. A. De -Mello). Page 2 of 8 According to the Civil Procedure Code (Cap 33 R.E. 2002), review of a decision is obtainable where a person considers himseif aggrieved by such decision, from which an appeal is allowed but where none has been preferred or where an appeal is not allowed. According to Order XLII Rule 1 of the Civil Procedure Code, a person may apply for review of a decision in the following circumstances: a. On discovery o f new and important matter or evidence which, after the exercise o f due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made; or b. On account o f some mistake or error apparent on the face o f the record; or c . For any other sufficient reason." In the case of Karim Kiara V.R, Criminal Application No.4 of 2007 (CAT - Dodoma) (unreported), the Court of Appeal clarified further on the grounds upon which review may be obtained. It stated: Page 3 of 8 "The principle underlying review is that the court would not have acted as it had if all the circumstances had been known. Therefore, review would be carried out when and where it is apparent that- First there is manifest error on the face o f the record which resulted in a miscarriage o f justice. The applicant would therefore be required to prove very clearly that there is a manifest error apparent on the face of the record. He will have to prove further that, such an error resulted in injustice (see Dr. Aman Walid Kabourou V. the Attorney General and Another - Civil Application No.70 o f 1999 — unreported). Second, the decision was obtained by fraud. Third, the applicant was wrongly deprived the opportunity to be heard. Fourth, the court acted without jurisdiction (see C.J. Pate! Vs R Criminal Application No. 80 o f 2002)." The Court of Appeal in Karim Kiara VR (supra) also added that: Page 4 of 8 "The law on applications for review is now weii settled. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. . . In a properly functioning legal system, litigation must have finality, thus the la tin maximum "debet esse finis Htium". This is a matter o f public policy. Jt is not insignificant to point out here that if this were not so, then as was stated by this court in Marckv Mhanao and 684 others V. Tanzania Shoe Company Ltd and Another - Civil Application No.90 o f 1999 (unreported), the court's order would have the effect o f which is to re-open a matter otherwise lawfully determined. There should be certainty o f judgments . . . . a system o f law which cannot guarantee the certainty of its judgments and their enforceability is a system fundamentally flawed1 There can be no certainty where decisions can be varied at any time at the pressure o f the losing party and the machinery o f justice as an institution would be brought into question. . . " Page 5 of 8 In the present matter, neither the applicants' affidavit in support of the application nor the applicants' submissions in court, did address any defect in the impugned court's decision. The applicants did not even allege existence of any aspect where he thought this court should not have acted as it did. They did not show any of the circumstances stated in Order XLII Rule 1 of the Civil Procedure Code as above pointed. Neither did the applicants show any manifest error apparent on the face of the record; they did not even allege that the decision was obtained by fraud; they did not even allege that the applicants were deprived of an opportunity to be heard, in the course of this court reaching to the decision sought to be reviewed; and neither did the applicants show that the court acted without jurisdiction. Thus, the applicants did not show or even allege, existence of any ground justifying a court to review its own decision. In fact, all what the applicants stated is that, there were errors in the decision of the court. As it was stated in the Court of Appeal case of Karim Kiara V R (supra), a review ought not be used as an appeal in disguise. A review cannot be used to correct a normal error in a decision. It was also stated by the Court of Appeal in the case of Chandrakant Jushubhai Patel V the Page 6 of 8 Republic; Criminal Application No.8 of 2002 (CAT - Dsm) (unreported) that, a mere error of law or fact is not a ground for review. For an error to be basis of a review, it must be an error apparent on the face of the record. The Court of Appeal in that case added: "The fine o f demarcation between an error simpiiciter, and an error on the face o f the record may sometimes be thin. It can be said o f an error that it is apparent on the face o f the record when it is obvious and seff— evident and does not require an elaborate argument to be established. . . " (emphasis mine). In the present matter, on the basis of the authority as above, this court is of a considered view that, no error apparent on the face of record has been shown. On the basis of the findings of this court as above, this court is of a considered view that, no reasons or grounds whatsoever, has been shown to warrant the review of the judgment of this court in Miscellaneous Land Case Application No. 124 of 2018 given on 10/12/2018. Accordingly, this court declines to review the same. The application is dismissed with costs. Page 7 of 8 It is ordered accordingly. Page 8 of 8