20100406 TZCA Dar es Salaam 1

I I lN THE COURT OF APPEAL OF T~NZANIA I AT DAR ES SALAAM i I I . (CORAM: RAMADHANI, C. J., NSEKELA, J. A. And KILEO, J.A. I CIVIL APPLICATION NO 51 OF 2009 I BETWEEN I I NAPKIN MANUFACURERS LTD .................IAPPLICANT AND I CHARLES GADI & JOYCE K. GADI ................. lRESPONDENTS I (An application for Review of the Judgment of the Court of Appeal of Tanzania at Dar es salaam). 1 (Ramadhani, C. l. & Nsekela, l. A.) Dated 30th March, 2009 In Civil Revision No 2 of 2008 4 th February 2010 & KILEO, J. A RULING {In terms of Rule 39 (3) of the Court of Appeal Rule~ 2009) I The applicant has come to this Court seeking a review of the majority I rd decision of the Court, which was delivered on 3 April 2009. The Notice of I Motion was brought under Article 13 (6) (a) of the Constitution of the ' ' United Republic of Tanzania and Rule 3 (2) (a) of the Court of Appeal ' 1 Rules, 1979. By the Notice of Motion the applicant, through its learned counsel, Mr. Lutema, sought to move a Full Bench of the Court of Appeal to review and set aside the majority decision of the Court (Hon Ramadhani, C. J. and Hon. Nsekela, J. A.) delivered on 3rd April 2009 in Civil Revision No. 2 of 2008 to the extent that the said decision orders possession of the suit premises, that is, the godown or warehouse situated on plot No. 98, Nyerere Road, comprised in certificate of title no 31961, to the Respondents. The prayers are sought on the following grounds: (a) The majority decision did not put into consideration the fact that what was before the Court of Appeal of Tanzania at Dar es salaam was a revision to satisfy itself as to the correctness, legality and/or propriety of decisions as well as the regularity of the proceedings in Land Case Number (sic!) before the Land Division of the High Court of Tanzania at Dar es salaam but not a revision to satisfy itself on the correctness, legality and/or propriety of decisions as well as regularity of proceedings in the District Court of Temeke; (b) The majority decision, to the extent that it ordered repossession of the suit premises to the Respondents, did not put into consideration the relevant fact that the final decision of the District Court of Temeke District dated the 4th November, 2004 ordered repossession of the suit premises to the Applicants. 2 ( c) The majority decision, to the extent it ordered repossession of the suit premises to the Respondents, tended to preempt the outcome of civil revision number 121 of 2004 pending in the !' High Court Tanzania which was instituted by the Respondents to challenge the decision dated 4th Novemb,er, 2004 of the District Court of Temeke; The Notice of Motion was accompanied by an affidavit sworn by Al- Munir Abdulali Karim, the Managing Director of the Aplicant. For better understanding of the matter before the Court I deem it fit to reproduce paragraphs 6 to 11 of Mr. Karim's affidavit. The said paragraphs state: "6. That the basis of the majority decision to order that the respondents I should be given repossession of the suit premises was that the Respondents had been given possession of the suit prem/ses by a decision of the District Court of Temeke District at Temeke I 7. That looking at the records of revision one finds no basis upon which to I hinge the majority decision's holding to the effect that th~re was a decision of the District Court of Temeke at Temeke that ordered that the Respondents should repossess the suit premises. 8. That it may be noted that the final decision that was issued by the I District Court of Temeke District at Temeke is dated .fh November, 2004 and is found at pages 134 to 138 as well as page 507 ofAnnexture NML- 1 and the said decision quashed all earlier decision of the District Court of 3 'f Temeke District and ordered the applicant to repossess the suit premises on, inter alia, the ground that the suits premises were wrongly sold in execution of a decree in which the applicant was neither a party nor a judgment-debtor. 9. That it may be seen at pages 509 to 527 of Annexture NML-1 that the said decision dated .fh November, 2009 is a subject of civil revision number 121 of the year 2004 still pending in the High Court of Tanzania at Dar es Salaam. 10. That the totality of the above narrated state of affairs is that_ at the time civil revision number 2 of 2008 was suo motto initiated, heard and determined by the Court of Appeal of Tanzania the final decision from the District Court of Temeke District at Temeke was that the Applicant was the " rightful owner and possessor of the suit premises. 11. That to the extent that the majority decision of the Court of Appeal of Tanzania in civil revision number 2 of 2008 orders the Respondents to be given repossession of the suit premises the said decision' is per incuriam · in that: (a) The majority decision did not put into consideration the fact that what was before the Court of Appeal of Tanzania· at Dar es Salaam in civil revision number 2 of 2008 was a revision to satisfy itself as I to the correctness, legality and/or propriety of decisions as well as the regularity if the proceedings in Land Case Number before the Land Division of the High Court of Tanzania at Dar es Salaam but 4 not a revision to satisfy itself on the correctness/ legality and/or propriety of decisions as well as the regularity of t/Je proceedings in I the District Court of Temeke District at Temeke; (b) The issue of repossession of the suit premises was not before the Court of Appeal of Tanzania at Dar es Salaam I in civil revision i number 2 of 2008; (c) The majority decision, to the extent that it ordere0 repossession of ' the suit premises to the Respondents, did not put into i consideration the relevant fact that the final decision of the District i Court of Temeke District dated ,fh Novembel 2004 ordered repossession of the suit premises by the applicant; and 1 I i ( d) That majority decision, to the extent that it orderecl repossession of the suit [remises to the Respondents, tended td preempt in the '' High Court of Tanzania at Dar es Salaam, which was instituted by ! the Respondents to challenge the decision dated ,fh November, 2004 of the District Court of Temeke District at Temeke. I i It is apparent , from the above statements as well as Mr. Lutema's argument I that the applicant is saying that the finding by the majority to the effect that the order of the District Court giving possession of the suit premises to the respondents was "intact" was made in oversight. Mr. Lutema prayed that this last part of the majority decision be removed to ensure that justice is rendered. 5 Mr. Luguwa and Mr. Matunda, learned advocates, represented the Respondents. Their main argument was that the Order of 4th November 2004 was an interlocutory order whose life time was only 6 months and which would not have been alive at the time of the majority decision. Mr. Matunda also argued that the remedy after the sale had been confirmed was to appeal and that the Land Case was barred by law. Looking at the record it appears to me that at the time of the majority decision, which was delivered on 3/4/2009, the order of the District Court of Temeke in Employment Cause No 52 of 1999 giving possession of the suit premises to the respondents was not intact as that order was set aside by the order of 4/11/2004 which restored the applicant into possession. The record shows further that the order was subject of revision in High Court Civil Revision No.121 of 2004 which was pending at the time of the majority decision. It appears that after the majority decision was delivered and after this review application had been filed, the revision matter in the High Court was withdrawn on 24th June 2009 upon application (by the present respondents who were the applicants in the case) filed on 22 nd June 2009. The question that arises now is whether there are sufficient grounds in the circumstances of this case to grant the order for review sought. This Court in Criminal Application no. 8 of 2002 ( unreported) between Chandrakant loshubhai Patel and The Republic dwelt extensively on the question of review. In so doing it made reference to Civil Application No. 18 of 1993 reported in (1998) TLR 89 between Transport 6 I Equipment Ltd and Devram P. Valambia where the Court's powers of i review were concretized. The Court in the Valambia case stated that the power of review is necessary for the proper and complete. administration of I justice and one which is resident in all courts of superior jurisdiction and I essential to their existence. The Court went further and laid down the I circumstances under which it may exercise its power of review. It held that ' powers of review could be exercised under the following c:ircumstances: I a) Where there is a manifest error on the face ofi the record which resulted in miscarriage of justice; b) Where the decision was obtained by fraud; c) Or where a party was wrongly deprived of the opportunity to be 1 heard. In Tanzania Transcontinental Co. Ltd v. Design Partnership Ltd, Civil Application No. 62 of 1996 (unreported) the Courtl made it clear that the above list is not exhaustive. Elaborating on an error which will ground a review the Court in the Chandrakant loshubhai Patel case stated that such error will be one over which there should be no dispute and which results in a judgment which ought to be corrected as amatter of justice. I The Court cited with approval Attilio v. Mbowe, (1970) HCD n. 3, where it stated: I "The principle underlying a review is that the court would not have I acted as it had if all the circumstances had been known. " i 7 On a discourse of what constitutes a "manifest error" or an "error apparent on the face of the record" the Court adopted the statement in MULLA 14th ed. pp. 2335-36 which is to the following effect: •~n 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 conceivably be two opinions........ " Having given the matter due consideration, and in view of the authorities mentioned above I am of the settled mind that this is a fit case for exercising our power of review. My observation in my earlier decision in Civil Revision No. 2 of 2008 was that once we had quashed all proceedings and set aside orders flowing from 20/7/2005 in Land Case No.216 of 2004 it necessarily implied that the rights of the partie$ were yet to be determined and it would not be prudent at the revision stage to order a re- possession of the suit property to the Gadis. I thought then that maintenance of the status quo would have been the rational thing to do. Moreover, I agree with Mr. Lutema that the quashing of the proceedings flowing from 20/07/2005 in the Land Case No. 216 of 2004 meant that all eviction orders were quashed and the only one that remained intact was the one of 4/11/2004 given by the District Court of Temeke in Employment. Cause No 52 of 1999. In my considered opinion, if the Court had been aware of this position at the time of the majority decision it would not have said that the order of the District Court putting the Gadis in possession was 8 intact. Mr. Matunda argued that the order of 4/11/2004 was an interlocutory order whose lifespan was only six months. I find this .argument not to be tenable first, because the matter before the District ' Court was not an application for an interim injunction and secondly, the order was a subject of r~vision in the High Court. Th~ matter was sub Judice when Civil Revision No. 2 of 2008 was determined. The other argument by Mr. Matunda that the Land Case is barred by law is not a subject that this Court can indulge in at this time. It is to be noted that the decision of the Court was that the matter be returned to the Land Division 1 of the High Court for a Final Pre-Trial & Scheduling Conference and Trial. As rightly pointed out by Mr. Lutema, what is before the Court now is a review, not the propriety or legality of the Land Division case. In short, I am settled in my mind that the order of the District [Court putting the respondents into possession of the suit premises was not intact when ttie majority decision was given. This being the case I wduld accede to Mr. Lutema's prayer that the last part of the decision of the n,ajority where it is iI stated that the Gadis were put in possession by an order of the District Court of Temeke in Civil Case No. 52 of 1999 which was intact be removed I . from the decision which was delivered on 3rd April 2009. I would in the event allow the application with costs. Dated at Dar es salaam this 06th Day of April 2010 E. A. KILEO . JUSTICE OF APPEAL I 9 ....., : I I ] '