MASHAKA MUSA FANUEL CIVIL REVIEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CIVIL REVIEW NO. 1 OF 2023 MASHAKA MUSA FANUEL ......................................... APPLICANT VERSUS MARIAM BERNARD …………………..………..…..…… RESPONDENT [Application from the decision of the High Court of Tanzania at Shinyanga.] (Hon. S.M. KULITA, J.) dated the 30th day of June, 2023 in Civil Appeal No. 20 of 2022 ----------- RULING 28th February & 28th March, 2024. S.M. KULITA, J. This application for Review arises from the Civil Appeal No. 20 of 2022 which was struck out on 30th day of June, 2023 for the reason of being time bared. The application has been filed under the provision of section 78(1) of the Civil Procedure Code [Cap 33 RE 2019]. It is accompanied with the affidavit sworn by Mashaka Musa Fanuel, the Applicant herein on the 14th day of August, 2023. It was argued by way of oral submission whereby only the 1 Appellant appeared to court, hence entertained ex-parte against the Respondent. In this application the applicant alleges that the delay to file appeal at High Court that led to the struck out of his appeal case was caused by the matters which were out of his personal control, that the Advocate whom he had hired to lodge the appeal case before this court didn’t do so in time, as a result the same was struck out for being time bared. In his submission in support of his application, the applicant sought for the contents of his submission to be adopted as part of the submissions for his case. He added that, the reason behind this application is that, there is an error on the face of the record that this court failed to note that the delay to lodge the appeal was the fault of his Advocate who had failed to file it in time while he was engaged and given instructions to represent him within the prescribed time period for him to lodge the appeal. The Applicant said that he had trusted the said Advocate but he made such fault of which he (Applicant) had never noticed earlier. As narrated herein before that there was no reply by the Respondent, hence my analysis will base on the Applicant’s submissions only. 2 Before I venture into the submissions, I went through Order XLII, Rule 1 of the Civil Procedure Code which provides for the circumstances under which Review can be entertained. The provision states; "(1) any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or (b) by a decree or order from which no appeal is allowed, and who, from a discovery of a new and important matter or evidence which, after the exercise of 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 on account of some mistaken or error apparent on the face of record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of the judgment to the court which passed the decree or made the order." The above cited provision has been clarified in a case of ALFRED ANASA SHARA V. TANZANIA TELECOMMUNICATIONS COMPANY LIMITED, 3 Misc. Civil Cause No. 151 of 2007, High Court at DSM District Registry (unreported) in which the case of KARIM KYARA V. R, Criminal Appeal No. 4 of 2007, CAT at Dodoma (unreported) was cited. The court said; "The principle underlying review is that the court would have not 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 a manifest error on the face of the record which resulted in a miscarriage of justice. The applicant would therefore be required to prove very clearly that there is a manifest error apparent on face of the record. He will have to prove further, that such an error resulted in injustice (see Dr. Aman Walid Kabourou Vs. The Attorney General and Another, Civil Application No. 70 of 1999 - unreported). Second, the decision was obtained by fraud. Third, the application was wrongly deprived the opportunity to be heard. Fourth, the court acted without jurisdiction (see C.J. Patel V.R. Criminal Application No 80 of 2002)" [emphasis is mine]. 4 See also ZAMBIA CARGO & LOGISTICS COMPANY LIMITED V. TANZANIA TEA BLENDERS (2002) LIMITED AND YUSUF NAWAB MULLA, Civil Review No. 27 of 2018, High Court DSM District Registry. As narrated herein before, the said Order XLII, Rule 1 of the Civil Procedure Code expresses the circumstances under which the Review can be entertained, and the cited case of ALFRED ANASA SHARA V. TANZANIA TELECOMMUNICATIONS COMPANY LIMITED (Supra) and that of KARIM KYARA V. REPUBLIC (Supra) made a thorough interpretation on the said provision. Having carefully gone through the said provision and the cited cases, I have noticed that the sought review solicits this court to rectify manifest error on the face of the record which resulted into a miscarriage of justice for this court not considering and determining the issue of the Appellant’s (Applicant’s) Advocate faults in handling the Civil Appeal No. 20 of 2022, that he is a source of the delay in lodging the said appeal at High Court. This can be seen on the fact that, once he lodged the said appeal in this court’s registry on 19th September, 2022, about 120 days (4 months) period from the date of delivery of the District Court’s judgement on 14th December, 5 2021, the said Advocate, namely Issa Magori, never turned up to court for further actions. It real happened, as it can be seen in the record, that, this court had not analyzed the said issue in its decision for the said Civil Appeal No. 20 of 2022 which led to the wrong dismissal of the Applicant’s appeal for being time bared. Upon going through the proceedings for the Civil Appeal Case No. 20 of 2022, I have noticed that, among the grounds that the appellant (Respondent herein) had raised in her reply to the submission of the Preliminary Objection, of which this court had not taken into consideration was that, it was the fault of his advocate that led to the delay in filing the appeal at High Court. As for the Applicant himself, it is his submission that, he had taken prompt action to appeal against the decision of the District Court, immediately after the delivery of its judgment and that he engaged the said Advocate, Magori, to represent him. The legal consequence of Advocate’s personal faults in litigations, the ground which has never been disputed by the respondent herein regarding her act of not showing up to court, has ever been discussed and decided upon in 6 several cases, including TANZANIA RENT A CAR LIMITED V. PETER KIMUHU, Civil Reference No. 28 of 2019, CAT at DSM, at Page 11, that the client should not be blamed so long as he had personally acted accordingly in dealing with his case which was later on distorted by the Advocate. It is unlike the situation where the Advocate just failed to act within the dictates of the law during trial while the matter is properly in court. See also MICAH ELIFURAHA MRINDOKO t/a NEW BP KILWA ROAD SERVICE STATION V. BANK OF AFRICA TANZANIA LIMITED, Misc. Commercial Application No. 18 of 2020, HC Commercial Division at DSM at Page 9. That being the case, I find this application for Review meritorious, hence allowed. I thus restore the Civil Appeal No. 20 of 2022 to be heard on merit. No order as to costs. S.M. KULITA JUDGE 28/03/2024 7 8