20091015 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, l.A., MBAROUK, l.A., And OTHMAN, l.A.} CIVIL APPLICATION NO. 152 OF 2008 MRS. RHOBI KERARYO } {Administratrix of the Estate ....................................... APPLICANT of the late Alpius Keraryo} VERSUS THE ATTORNEY GENERAL ............................................... RESPONDENT (Application for Review of the Judgment of the Court of Appeal of Tanzania at Dar es Salaam} (Msoffe, Mbarouk and Othman, lllA} dated the 19th day of September, 2008 in Civil Appeal No. 46 of 2008 RULING OF THE COURT 25 September, 2009 & 15th October,2009 OTHMAN, l.A.: Review is being sought by the applicant, Mrs. Rhobi Keraryo, Administratrix of the estate of the late Alpius Keraryo, of the decision of the Court in Civil Appeal No. 46 of 2008 delivered on 25.09.2008. The respondent, the Honourable Attorney General resists the application. I>' The essential grounds for review as contained in the notice of motion and supported by the applicant's affidavit deponed on 16.10.2008 are that: 1. There is an error of law manifest and apparent on the face of the record when, without any investigation and finding of a board of inquiry as required by Regulation 13.43 (Investigation of illegal absence) of the Defence Forces Regulations, this Court held that:- (a) The deceased was absent without leave and therefore was not in the service of the 1st defendant from 6.06.1988 up to the time of his death on 9.11.1996. (b) Since the deceased was absent as shown above, his estate was not entitled to employment benefits and emoluments for the period from 6.06.1988 to 9.11.1996 when he died. 2 2. In the alternative, this Court acted with error of law apparent on the face of the record when it failed to hold that there was a need to conduct inquiry into the absence of the deceased after such absence had exceeded 14 days. 3. That there was an error of law manifest and apparent on the face of the record when the Court usurped the powers of the board of inquiry or purported to act in the place -of the board of inquiry or ignored the evidence given for the plaintiff and came to the conclusion that it was not established that the deceased had met an accident when he was on leave and had been hospitalized at Musoma civilian hospital. Lt. Colonel, Samson Nnko, learned advocate for the applicant basically submitted that the Court had committed an apparent and manifest error of law on the face of the record in holding that the deceased had absconded from service, a pronouncement that can only be made by a board of inquiry under Regulation 13.43 of the 3 National Defence Forces Regulation, Cap 129 R.E. 2002. ·The Court had thus usurped the powers of the Board. By stepping into its shoes it had upset the board's authority and defeated the spirit of that regulation. The decision of the Court would be used as a precedent in all cases of abscondment. Furthermore, by not ordering that an inquiry into the deceased's absence be conducted by the board another error of law on the face of the record had been committed. In reply, Ms Barke Sehel, learned Senior State Attorney for the respondent referring to Dr. Aman Walid Kabourou v The Attorney General and Azim Suleiman Premji, Civil Application No. 70 of 1999 (CA) and Chandrakant Joshubhai Patel v R, Criminal Application No. 8 of 2002 (CA) (both unreported) submitted that no basis for a review had been furnished. Regulation 13.43 was examined by the Court. It came to a finding. The holding of a different opinion by the applicant does not render the Court's determination a manifest error of law apparent on the face of the record. 4 Relying next on Mohamed Hassan v Mayasa Mzee and Another, Civil Application No. 4 of 1995 (CA) (unreported) she correctly submitted that in a review the Court neither revisits the merits of its earlier decision nor does it sit on an appeal over it. No new ground of review has been revealed by the applicant for the list of non-exhaustive grounds of review enumerated in Dr. Aman Walid Kabourou's case, which include that of the Court, (a) acting without jurisdiction, or (b) its judgment having been obtained by fraud,_ or_( c) condemning "Unheard one of the parties, for the court to enlarge it. Ms Sehel went on to submit that the decision of the Court was not a dangerous precedent. It neither erases nor prejudices the functioning of boards of inquiry, whose procedures are administrative under Regulation 13.45. For consistency and convenience, we shall combine together the grounds of appeal as they all focus on an alleged manifest error apparent on the face of the record, which occasioned a miscarriage of justice. 5 In Chandrakant loshubhai Patel's case, the Court had this to state: "We would say in the light of the authorities at hand that an error of which will ground a review, whether it be one of fact or of law, will be an error which there should be no dispute and which results in a judgment which ought to be corrected as a matter of justice". In the treatise, Ganguly's Civil Court a_nd Practice, 13th . Ed, the learned author states: "It is only when without elaborate arguments, one could find the error and say that there is substantial point of law which stares on the face of it and then could not be reasonably two opinions to be entertained on it, the error is one error apparent on the face of the record". Having closely reconsidered the record and bearing in mind the rival submissions, we would agree with Ms Sehel that the application 6 does not fit into any of the existing grounds upon which we can justifiably exercise our review jurisdiction. First, it is a salutary and necessary rule that a party is bound by its pleadings - Pushpa d/o Raojibhai M. Patel v The Fleet Transport Co. Ltd. (1960) EA 1025. They define the case that is to be met by the opposite party and the issues for decision. The basic rule is that the Court gets jurisdiction on the basis of the averments made in the plaint - Ganguly's Civil Practice and Procedure, p. 335. It is undisputed that the issue whether or not the deceased was still in service on 9.11.1996 when he met his death or whether he was absent without leave upon the expiry of his lawful leave on 5.06.1988 arose out of the pleadings, were issues on which the parties gave evidence and on which the trial court and this Court came to certain findings. In Lt. Colonel Nnko's own words that issue was a "contestable contest". Regulation 13.45 was also noticed, examined and applied by the Court. Expressly invited by the pleadings, clearly within the adversarial issues that arose and on the 7 evidence led by the parties we fail to see how the Court having been called on to make a determination committed a manifest error apparent on the face of the record occasioning an injustice. The applicant's alternative contention is that the Court should have ordered the convening of a board of inquiry to investigate the absence of the deceased. On a bare perusal of the plaint and the applicant's pleaded case, in the main, what was sought as relief was a declaration that the deceased was still in the service of the Chief of the Defence Forces, Ministry of Defence and National Service (1 st Defendant). Not an order by the Court to marshal a board of inquiry that is convened by one of the authorities spelled out in Regulation 13.07(2) of Regulation No. 13 of the National Defence Forces Regulations. The relief now desired on review was not raised in the plaint nor did it stand out as an issue during the trial. No reason has been afforded by the applicant why we should depart from the well established principle that relief not founded on the pleadings should not be granted, unless appropriately warranted by the circumstances of the case (see, Mulla on the Code of Civil Procedure, Vol. II, 8 15th Ed, pp. 1423-1424; J.P. Aggarwala's Pleadings and Precedents in India, Vol. 1, 1999 p. 529. And this in the exercise of our review powers and not appellate jurisdiction. The final ground on which review is being sought is an alleged usurpation by the Court of the powers of the boards of inquiry under Regulation 13.43. Section 9 (1) of the National Defence Act, Cap 192 R.E. 2002 and Regulation 13 (Summary Investigations and Boards of Inquiry) of the Defence Forces Regulations govern the establishment, terms of reference and powers of boards of inquiry. With respect, we read nothing in the Court's decision as appropriating the powers of boards of inquiry to render their establishment and functioning, meaningless. On an overall reconsideration of the matter, in our settled opinion, the decision of the Court, which could not but be on the parties pleaded averments, proved facts, and case specific does not affect boards of inquiry or render them in any way redundant. We would agree with Ms Sehel that the decision does not erase boards of 9 inquiry. They function according to the law and procedures in place. With respect, the anxiety raised is unfounded. In concluding, it strikes us having reexamined the record that what the application really discloses is a disguised attempt to use the review jurisdiction of the Court to seek after a lapse of twelve years, a fresh remedy and a rehearing of the claim under the Defence .,,.ll Forces Regulations, the applicant having elected to agitate and stake a civil action under the Civil Procedure Code. In our respectful view this is not a legitimate ground for the Court to recall a review. For all these reasons, we are fully satisfied that the review is without merit. We accordingly dismiss the application. With the applicant assisted in forma pauperis there shall be no order as to costs. DATED at DAR ES SALAAM this 9th of October, 2009. J. H. MSOFFE JUSTICE OF APPEAL M.S. MBAROUK JUSTICE OF APPEAL M.C.OTHMAN JUSTICE OF APPEAL I certify that this is a true copy of the original. ,,.------- ~;;; ·H (J.S~GA) DEPUTY REGISTRAR 11