MIANZI

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISC LAND APPLICATION NO 80 OF 2023 (Arising from the Decision in Mise Land Case No.5 of 2019 in the High Court of Tanzania (Dodoma District Registry) at Dodoma, Original from Singida District Land and Housing Tribunal in the Land Application No. 44 of 2010) MIANZI MKILYA............................................... APPLICANT VERSUS RAHELI MPINGA............................................ RESPONDENT RULING Date of Last Order. 21st May 2024 Date of the Ruling: 15th July 2024 LONGOPA, J.: The applicant on 17th October 2023 filed an application for review under Order XLII Rule 1 (a) and (b) and Section 95 of the Civil Procedure Code, Cap 33 R.E. 2019. The Chamber Summons reveals that the applicant prays for the following orders, namely: (a) That, this honourable Court be pleased to call the proceedings of this Court in the Mise Land Application No. 1 | Page 5 of 2019 and satisfy itself as to its legality, correctness and propriety of the proceedings. (b) Costs be provided for fa) Any other order this honourable court may deem fit andJust to grant. The applicant and respondent in this application were also the applicant and respondent in Mise. Application No. 5 of 2019 seeking for an extension of time to file an application for setting aside a dismissal order dated 19th day of October 2015 in respect of Miscellaneous Land Application No. 167 of 2015. The Ruling was delivered on 12th December 2019, and the Court dismissed the said Application for extension of time to file application for setting aside the Court's dismissal order in Miscellaneous Land Application No. 167 of 2015. It is stated that following that dismissal order dated 12/12/2019 the Applicant filed for application for extension of time to file for review in Mise Land Application No. 06 of 2023 which was granted and thus the applicant filed for Application for Review through Mise. Land Application No. 80 of 2023. On 21st May 2024, the parties prayed to dispose the application for review through way of written submission and this Court granted that prayer. The parties complied with the scheduling order of submission as agreed. The applicant filed her submission on 3rd June 2024, the Reply 2 | Page submission on 16th June 2024 and rejoinder submission was filed on 28th June 2024. The applicant submitted that this application was made under Section 14(1) and Third Schedule Part 3 of the Law of Limitation Act Cap 89, R.E 2019 and section 95 and Order XLIII Rule 2 of the Civil Procedure Code Cap 33 R.E 2019. It is for extension of time to file application for review before this court to review the ruling of this court in Mise. Land application No. 5 of 2019 which dismissed the application for extension of time to file an application for setting aside dismissal order dated 12th day of December, 2019. The applicant adopted contents of the affidavit in support of application to form part of the submission. Further, the applicant argued that applicant seeks for extension of time to file an application for review against the ruling of this court in Mise. Land application No. 5 of 2019. The reasons are that the delay to file review was not caused by the applicant's default, but it was caused by her advocate's failure to communicate with the applicant on the progress of the case, inspite of the applicant efforts to enquire on progress without success. As a result, the applicant was not aware the decision on land case No. 76 of 2013. Moreover, it was averred by the applicant that it was until 09/11/2022 when the applicant decided to make follow up by writing a letter to the High Court and come to realize that her advocate did not file the 3 | Page Memorandum of Appeal and that Mise. Land application No. 5 of 2019 was already decided in favour of respondent. According to the applicant, she instructed another advocate for legal advice and necessary step to be taken, then the advocate advise her to file an application for review but unfortunately the time to file application for review against the decision in Mise. Land application No. 5 of 2019 has already lapsed. The delay of the applicant to file review was caused by the negligence of the instructed advocate who had no proper communications with the applicant and led the case to be dismissed for non-appearance of the applicant and her advocate when the same was scheduled for hearing. The applicant cited the case of Luthbert Katuna versus Equity Bank Tanzania Limited, Civil Application No. 251105 of 2023 HC. Pg 7 & 8 Court stated found that when delay is not inordinate and caused by the advocate the applicant having demonstrated efforts to pursue his rights then the Court should consider the efforts as sufficient ground for extension of time as the applicant acted promptly. On the other hand, the respondent resisted the application and adopted the contents of counter affidavit to form part of her submission. The respondent reiterated that extension of time is only appropriate where the court finds it to have been supported by a reasonable or sufficient cause. 4 | Page The respondent reiterated that though it is the discretion of the Court to grant extension of time, that discretion is judicial and should be exercised justly and not according to personal views. The same was emphasized in the case of Lyamuya Construction Company Ltd Versus Board of Registered Trustee of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) (TANZLII), at pages 6-7, the Court of Appeal when faced with the same issue of discretion, observed that: "As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily." The respondent reiterated that criteria required for the extension of time is to consider the sufficient cause. In Lyamuya Construction Company Ltd Versus Board of Registered Trustee of Young Women's Christian Association of Tanzania(supra), at page 6 and 7, the Court observed that: "On the authorities however, the following guidelines may be formulated: -(a)The applicant must account for all the period of delay, (b)The delay should not be inordinate, (c)The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take, and (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance: such as the illegality of the decision sought to be challenged." 5 | Page It was the respondents argument that in the case at hand the applicant tries to substantiate her delay to have been caused by former Advocate who never filed the Memorandum of Appeal to challenge the decision in Land Case No. 76 of 2013. The applicants try to blame her Advocate for failure to file Review on time. According to the respondent, it is already settled law that the negligence of an Advocate is not a reasonable or sufficient cause and justifiable to allow the court to extend time for review. In the case Lim Han Yung and Another v. Lucy Treseas Kristensen (Civil Appeal No. 219 of 2019 [2019] TZCA 400: [28th June 2022) (TANZLII), the Court observed that: "We think that a party to a case who engages the services of an advocate, has a duty to closely follow up the progress and status of his case. A party who dumps his case to an advocate and does not make any follow ups of his case cannot be heard complaining that he did not know and was not informed by his advocate the progress and status of his case.” Furthermore, the respondent reiterated in case applicant thought that her advocate has committed any professional misconduct she should have channeled the same to the proper forum and not to seek sympathy to this court for extension of time. The negligence of the applicant should not be countenanced. In conclusion, the respondent submitted that for the reasons stated hereinabove, the present Application for Extension of Time for Review ought to be Struck Out with costs for failing to meet the tests required by the law. 6 | Page The applicants rejoinder submission reiterated that it is discretion of the court to grant extension of time and that discretion must be exercised judiciously. But the said discretion is exercised depend on the circumstance of each case. It was applicant's prayer to this honorable court pleased to extend time so as she can file an application for review against the ruling of this court in Mise. Land Application No. 5 of 2019 which dismiss the application for setting aside dismissal order. Having perused the rival submissions by the parties, the available record and legal provisions attendant to the matter at hand, I have dispassionately considered the merit of the application before this court. The application before this court is about the review of the decision of this Court in Mise Land Application No. 5 of 2019 in which the applicant herein sought to set aside the dismissal order. Indeed, the applicant prayed that this Court be pleased to call the proceedings of this Court in the Mise Land Application No. 5 of 2019 and satisfy itself as to its legality, correctness and propriety of the proceedings. Simply, the applicant seems to challenge the decision of this Court that it did not adhere to the established principles of law thus the same is not legal, correct and appropriate decision. 7 | Page The legal position on the review of court's decision is covered under Order XLII Rule 1 (a) and (b) of the Civil Procedure Code, Cap 33 R.E. 2019 which reads as follows: - (1) Any person considering himselfaggrieved- fa) 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 ai/owed, and who, from the discovery of 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 mistake or error apparent on the face of the 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 judgment to the court which passed the decree or made the order. Under this provision of the law, the reasons are categorically enumerated. First, there should be discovery of new facts that was not within the knowledge of the party or court at the time a decision was made. Second, existence of apparent error on face of the record. Third, existence of sufficient reasons for the court to exercise such powers. Also, the provision of Section 95 of the Civil Procedure Code is on the inherent powers of the court. It stated as follows: - 8 I Page Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends ofJustice or to present abuse of the process of the court. The applicability of Section 95 of the Civil Procedure Code relates to exercise of the powers of the court to ensure that administration of justice is upheld. Such powers can only be invoked in circumstances that are intended to ensure that justice is done. It cannot be invoked in circumstances where a party invites the court to revisit its decision without sufficient reason. In the case of Tanzania Electric Supply Company (TANESCO) vs Independent Power Tanzania Ltd (IPTL) & Two Others (Consolidated Civil Application 19 of 1999) [1999] TZCA 32 (8 July 1999) (TANZLII), at page 15, The Court of Appeal stated the following about Section 95 of CPC that: ...this section does not confer any Jurisdiction on the High Court or courts subordinate thereto. What it was intended to do, and does, is to save inherent powers of those courts. The section is undoubtedly a very useful provision, but it is not a panacea for all ills in the administration of justice in civil cases. The power Is intended to supplement the other provisions of the Code and not to evade or 9 | Page ignore them or to invent a new procedure according to individual sentiment. Essentially, the section relates to addressing a matter that is not covered under the Code. It is not intended to be an avoidance of the settled procedural aspects. Simply, such provision of the law should be applied restrictively to serve the interest of justice not otherwise. The application was properly made but submissions by the parties were wrongly made, as instead of submitting on review, parties submitted on an application for extension of time, and the court cannot invent a new procedure to assume what parties intended to do. On 15th April 2024, vide a Ruling on Miscellaneous Land Application No. 80 of 2023 I had lucidly addressed the question of time limitation that it was not subject matter before the court as already the dust was settled in Miscellaneous Land Application No. 6 of 2023 where this Court (Hon. Mambi, J) had granted extension of time to file an application for review. Thus, the parties focus on submitting on grounds for extension of time as if that was the case before me is a misnomer. Essentially, the application for review involves the court visiting its own decision. It is an exception to the general rule that once the court has determined a matter to the finality that court cannot re-open that matter as the court becomes functus officio. 10 | P a g e The reasons for review of the court's decision to be entertained as exceptional cases are lucid. There is public policy that litigations must come to an end and that a court should not sit on a disguised appeal of its own decision. The guidance can be found in the case of Eliya Anderson vs Republic (Criminal Application 2 of 2013) [2013] TZCA 296 (13 June 2013) (TANZLII), at pages 3-4, where the Court of Appeal stated that: This Court being the highest court of the land, the applicant had no right to a further appeal. Tn the rarest of cases, he could only move the Court for a review of the decision, which appears to be his ultimate intention in this application. I must point out from the outset that / have deliberately used the words "in the rarest of cases." This is because a party to any proceedings in this Court who finds himself or herse/f aggrieved by the Court's decision or order has neither a constitutional nor a statutory right of review of the Court's decision: See, Blueline Enterprises Ltd v. East African Development Bank, Civil Application No. 21 of 2012 (unreported). It is settled /aw, in common law Jurisdictions, that "a judgment of the final court is final and a review of such judgment is an exception", per the Supreme Court of India in Devender Pal Singh v. State, N.C.T. of Delhi and Another, Review Petitions No. 497, 626 and 629 of 11 | P a g e 2002 which was followed by the Court In Blueline v. E.A.D.B (supra). This has also been the firm stance of this Court since it held in Felix Bwogl v Registrar of Buildings, Civil Application No. 26 of 1998 (unreported) that it has inherent Jurisdiction to decide its own decisions. This is done only in "fitting situations when circumstances of a substantial compelling character demand us to do so in order to correct a manifest wrong and pass an order to do full and effective justice in the case": See Blueline v E.A.D.B. (supra). The courts cherish the above stance not an account of their Infallibility but for two principal reasons. These are: One, public policy demands finality of litigation and certainty of the law as declared by the highest court of the land (Tanzania Transcontinental Co. Ltd v. Design Partnership Ltd, Civil Application No. 62 of 1996 (unreported). Two, the Court, and Indeed any court of law, will never "sit as a court of appeal from Its own decisions, nor will It entertain applications for review on the ground only that one of the parties In the case conceives himself aggrieved by the decision, " and In the process let "disguised appeals pass off for applications for review." One of the circumstances where the court can review its own decisions is where there is apparent error on record. In D.N. Bahram Logistics Ltd & Another vs National Bank of Commerce Ltd & Another (Civil Application No.102 of 2021) [2023] TZCA 17377 (6 July 2023) (TANZLII), at pages 4-5, the Court noted that: Therefore, for the Court to review its own decision, the error complained about must be apparent such that a person running and reading couid see it In addition, it is trite law that the referenced error must not require a long- drawn process of reasoning. In the famous case of Chandrakant Joshubhai Pate! v. R [2004] T. L. R. 210, the Court illustrated when a review couid be entertained by stating that: - "An error apparent on the face 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 long drawn process of reasoning on points on which there may be conceivably two opinions... A mere error of iaw is not a ground for review under this rule. That a decision is erroneous in law is no ground for ordering review...It can be said of an error that is apparent on the face of the record when it is obvious and self-evident and does not require an elaborate argument to be established." In the Ruth Makaranga vs Salum Ayub (Civil Application 363 of 2021) [2022] TZCA 562 (15 September 2022) (TANZLII), at pages 9-12, the Court of Appeal reiterated the circumstances under which the review may be preferred. The Court stated that: In terms of Order XLII Rule 1 of the Civil Procedure Code, the Court has power to review its decision on three grounds; one, discovery of new evidence which cou/d not have been produced or come to the party's knowledge after exercise of due diligence; two, some mistake or error apparent on the face of the record or; three, tor any sufficient reason. It is a settled law on review that the power of review should not be confused with appellate powers which enables an appellate court to correct all errors committed by the subordinate court. Apparent error on face of record is a self-evident error on the face of the record not involving an examination or arguments to establish it. an error which has to be established by a long- drawn process or arguments and reasoning to establish it on points capable of two opinions cannot qualify to be an error apparent on the face of the record. With this plethora of authorities on the circumstances for grant of an application for review of the decision of the court, it is certain that review 14 | P a g e can only be invoked where criteria is met by the applicant. The application in each case of the application for review must demonstrate that either of the three main grounds of the review exists in the circumstances of that case. Absence of such proof before a court of law results into a single fate of dismissal of the application for lack of merits. My perusal of both the affidavit in support of the application, counter affidavit and the submissions made by the parties reveal that there is nothing to support the grant of the application. It was the applicant's assertion that she engaged a lawyer to handle the application for review, the affidavit in support of the Chamber summons and submission did not address at all the grounds for review despite having prepared the Chamber Summons with prayers for review as well as the written submissions. The applicant neglected to critically address criteria for review. It is my settled view that reasons advanced by the applicant are not sufficiently addressing the issue before this Court. This arise out of the fact that both affidavit in support of this application for review and written submission have focused emphasis on the following: First, that there was failure of the applicant's advocate to communicate with the applicant on progress of the case thus the applicant was not aware of the decision in 15 | P a g e Land Case No 76 of 2013. Second, that upon follow ups, the applicant found out that her advocate did not file the Memorandum of Appeal and that Miscellaneous Land Application No 5 of 2019 had been determined in favour of the respondent. Third, the applicant instructed her new advocate to file the application for review, but she was beyond the time required to do so. In totality of events, the applicant seems to rely on these aspects as sufficient grounds for review. I am certainly sure that nothing seems to fall within the ambits of the grounds for review. There is nothing as new evidence that was not there at the time decision in Miscellaneous Land Application No. 5 of 2019 was determined to warrant it to be considered as a discovery that was known would have made the court to decide otherwise. Also, there is nothing alleged nor established indicating that the impugned decision of this court contained an error on face of the record. It is further view of this Court that no sufficient reason has been advanced to warrant this court to revisit its decision in Miscellaneous Land Application No. 5 of 2019. It is settled view of this court that the applicant in this application was duty bound to support the prayers in Chamber Summons with cogent evidence in affidavit and written submissions that the criteria for review of the Miscellaneous Land Application No. 5 of 2019. However, the submissions do not support the prayers in the Chamber summons. They are at variance. In the case of Jasson Samson Rweikiza vs Novatus 16 | P a g e Rwechungura Nkwama (Civil Appeal 305 of 2020) [2021] TZCA 699 (29 November 2021) (TANZLII), at 12-13, the Court of Appeal stated that: It is a cherished principie of law that, generally, in civil proceedings, the burden of proof Ues on the party who alleges anything in his favour We are fortified in our view by the provisions of sections 110 and 111 of the Evidence Act. It is also common knowledge that in civil proceedings, including matrimonial causes and matters, the party with legal burden also bears the evidential burden and the standard in each case is on the balance of probabilities. See, for example Godfrey Sayi v. Anna Siame as Legal Persona! Representative of the iate Marry Mndolwa, Civil Appeal No. 114 of 2012 (unreported). This is also provided for under section 3 (2) (b) of the Evidence Act. This means that the court will sustain such evidence which is more credible than the other on a particular fact to be proved. As there is variance between the prayers in the Chamber summons and contents of the affidavit regarding the reasons/ grounds for the review and the same being unsupported by submission makes the affidavit and its corresponding submission to fundamentally depart from the matter before the Court. The effect of such departure makes the affidavit and its corresponding submission valueless in terms of proving the application 17 | P a g e before this Court. I am guided by the principle in the case of Charles Richard Kombe t/a Building vs Evarani Mtungi and 2 Others (Civil Appeal No. 38 of 2012) [2017] TZCA 153 (24 March 2017) (TANZLII), at pages 9-10, where the Court of Appeal reiterated that: It is a cardinal principle of pleadings that the parties to the suit should always adhere to what is contained in their pleadings unless an amendment is permitted by the Court. The rationale behind this proposition is to bring the parties to an issue and not to take the other party by surprise. Since no amendment ofpleadings was sought and granted that defence ought not to have been accorded any weight. Simply, the applicant has failed to adduce any cogent reasons that the application for review deserves to be granted. The prayers contained in Chamber Summons are not supported thus the same deserves nothing other than being discarded for want of merits. Where a person who alleges fails to adduce evidence to establish the claim against another person such claim shall be regarded to have not been proved. 18 I P a g e In totality of the events as demonstrated in the foregoing analysis, it is a settled position of this Court that this application lacks merits whatsoever thus it must be dismissed. I hereby proceed to dismiss the application for review against decision in Miscellaneous Land Application No 5 of 2019 with costs. It is so ordered. DATED at DODOMA this 15th July 2024 E.E. LONGOPA JUDGE 15/07/2024 19 | P a g e