CIVIL APPLICATION NO 432 01 OF 2022 NCBA BANK TANZANIA LIMITED VS HIRJI ABDALLAH KUPIKULILA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE. 3.A.. MWAMPASHI., J.A And MGEYEKWA., J.A.) CIVIL APPLICATION NO. 432/01 OF 2022 NCBA BANK TANZANIA LIMITED.................................................. APPLICANT VERSUS HIRJI ABDALLAH KAPIKULILA..................................................RESPONDENT (Application for Review of the decision of the Court of Appeal of Tanzania at Dares Salaam) f Ndika. Kente And Makunqu, JJ.A.) Dated the 18th day of May, 2022 in Civil Application No. 489/16 of 2021 RULING OF THE COURT 15th& 3ffh July, 2024 MWAMPASHL J.A.: In this application brought by a notice of motion under section 4 (4) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] (the AJA), rule 66 (1) (a), (b) and (c), (2), (3), (4) and (6) as well as rule 48 (1) both of the Tanzania Court of Appeal Rules, 2009 (the Rules), the Court is moved to review its decision (Ndika, Kente And Makungu, JJ.A), dated 18.05.2022, in Civil Application No. 489/16 of 2021. Whereas, in support of the application, there is an affidavit sworn by Mr. Makarious J. Tairo, learned advocate for the applicant, in resistance, there is an affidavit in reply affirmed by the respondent, Hirji Abdallah Kapikulila. In the decision of the Court sought to be reviewed, the Court, at the instance of the respondent herein, struck out the notice of appeal which had earlier been lodged on 11.06.2020 by the applicant herein against the Ruling of the High Court of Tanzania (Commercial Division) at Dar es Salaam, in Commercial Case No. 116 of 2016. In striking out the notice of appeal, the Court was satisfied that, the applicant herein, had failed to take necessary steps to lodge its intended appeal in time. The Court found that, after lodging the notice of appeal and having obtained leave to appeal on 27.04.2021, the applicant who had the duty to process and prosecute its appeal within the prescribed timeline, adopted the snail-like pace in the pursuit of the appeal hence, the institution of Civil Application No. 489/16 of 2021 on 13.10.2021 by the respondent for the notice of appeal to be struck out. The striking out of the notice of appeal by the Court, as above stated, aggrieved the applicant who filed the instant application seeking for the review of the said order/decision. According to the notice of motion, the application is predicated upon the following three grounds: - 1. The decision was based on a manifest error on the face o f the record resulting in the miscarriage o fjustice. 2. A party was wrongly deprived o f an opportunity to be heard. 3. The decision o f the Court subject o f review is a nullity. When the application was called on for hearing, Messrs. John Ignace Laswai and Octavianus Mushukuma, both learned advocates, appeared for the applicant and respondent, respectively. In support of the application, Mr. Laswai adopted the notice of motion, the contents of the supporting affidavit and the written submission. Without any further clarifications, he prayed that, on the basis of the applicant's written submission, which he said is exhaustive, the application be granted as sought in the notice of motion. With regard to the first ground which is to the effect that the decision sought to be reviewed was based on a manifest error on the face of the record resulting in the miscarriage of justice, it was argued in the applicant's written submission that the Court misinterpreted the chronological order of events and purposes of judicial proceedings arising from and connected to Commercial Case No. 116 of 2016 and Civil Application No. 489/16 of 2021. The matrix on the said chronological order of events, was included in the written submissions. It was also contended that there were material facts in the proceedings before the High Court which are not reflected in the impugned decision of the Court. Still on the first ground, it was submitted that after lodging the notice of appeal, the applicant did not apply for leave to appeal out of time and no 3 such leave was granted by the High Court as it was stated by the Court in the impugned decision, which is an apparent error on the face of the record. As on the second ground that the applicant was wrongly deprived of an opportunity to be heard, it was submitted that the applicant was not given an opportunity to address the Court on key facts contained in his affidavit in reply and the supplementary affidavit in reply. It was also complained that the applicant was not afforded an opportunity to be heard on the point raised by the Court suo mottu regarding the validity of the decision of the High Court in granting the applicant leave to submit a letter requesting for a copy of the proceedings out of time. Finally, on the third and last ground of the application that, the decision was a nullity, it was submitted for the applicant that, there was no essential step which was required to be taken by the applicant under rule 89 (2) of the Rules, and which was not taken by the applicant. It was also contended that the Court overlooked the established legal principle that the right of appeal is statutory. Furthermore, it was argued for the applicant that, the Court misinterpreted the legal nexus between the notice of appeal lodged by the applicant and that which was lodged by the respondent and further that having ruled that it was irregular and not open for the High Court to have granted leave to submit the letter requesting for the copy of the proceedings out of time, the Court did not invoke its powers to appropriately address the identified illegality, the omission that left the High Court decision in that respect, intact. At the outset, Mr. Mushukuma for the respondent, expressed the stance that the respondent was strongly resisting the application. He began by adopting the affidavit in reply, the respondent's written submissions and the list of authorities. In principle, the submissions by the respondent against the application are premised on the argument that for an application for review to succeed, at least one of the five grounds stipulated by rule 66 (1) of the Rules, must be established. Responding to the applicant's submissions on the first ground regarding an apparent error on the face of the record, it was argued for the respondent that the complaint that the applicant never applied for leave to appeal out of time has no any bearing to the instant application for review and cannot be an apparent error on the face of the record. It was contended that the argument intends to invite the Court to inquire into facts which are not on the face of the decision sought to be reviewed. Placing reliance on the decisions of the Court in Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218 and DAMATICO General Supply v. Maweni Limestone Limited (Civil Application No. 129/12 of 2020) [2022] TZCA 268 (13 May 2022; TanzLII), it was insisted that an error apparent on the face of the record must be an obvious and patent mistake not something which 5 can be established by a long-drawn process of reasoning on points which there may conceivably be two opinions. As on the argument regarding the chronological order of events, it was submitted for the respondent that, the same is irrelevant to the application at hand and that it has no significant whatsoever to warrant grant of the application. Turning to the second ground, it was the respondent's submission that the applicant cannot be heard complaining that he was not afforded an opportunity to clarify on material facts contained in the affidavit in reply and the supplementary affidavit in reply. It was explained that the said affidavits were admitted and they formed part of the record and the applicant's advocate was accorded adequate opportunity to make comprehensive oral submissions. The applicant's complaint that the applicant was not accorded an opportunity to be heard on the point raised suo mottu by the Court, was as well challenged by the respondent for being baseless. It was insisted that, in the course of the hearing, the parties were accorded an opportunity to address the Court on the said point. Regarding the third ground that the decision sought to be reviewed is a nullity, it was argued for the respondent that the ground is baseless and further that the same has not been substantiated by the applicant. Finally, Mr. Mushukuma argued that the application is not only baseless but it is misconceived and an abuse of court process. He contended that the application is not backed by any fit ground to warrant a review and that the same should be dismissed with costs. In his brief rejoinder, Mr. Laswai contended that, the application is not misconceived or an abuse of court process. He reiterated that the application is based on rule 66 (1) (a) (b) and (c) of the Rules, and that the three grounds raised in support of the application have been substantiated by the applicant. He thus, prayed for the application to be granted. Having dispassionately considered the submissions made for and against the application and after examining the record before us, particularly the impugned decision of the Court dated 18.05.2022, we find that the issue calling for our determination is simply whether there are sufficient grounds to warrant a review of the impugned decision. We find it apt to preface the determination of the issue posed above by restating that, the scope of the powers of the Court in review is confined to rule 66 (1) of the Rules, under which it is provided that: "The Court may review its judgment or order, but no application for review shaii be entertained except on the foflowing grounds: (a) the decision was based on a manifest error on the face o f the record resuiting in the miscarriage o fjustice; (b) a party was wrongly deprived o f an opportunity to be heard; (c) the court's decision is a nuiiity; or (d) the court had no jurisdiction to entertain the case; (e) thejudgment was procured iiiegaiiy or by fraud or perjury. " It should also be borne in mind that the scope of the powers of this Court in review is not only limited within the grounds listed under rule 66 (1) of the Rules, but also within the decision sought to be reviewed. Further, in exercising its powers in review, the Court is guided by a number of principles including but not limited to the following; One, the review jurisdiction is not by way of appeal and its purpose is not to provide a back door method to unsuccessful litigants to re-argue their case or seek a re- appraisal of the entire evidence on record; Two, the power of review is limited in scope and is normally used for correction of a mistake but not to substitute a view in law; Three, a judgment of a final court is final and review of such judgment is an exception; Four, in review, a mere disagreement with the view of the judgment cannot be a ground for review and where a point has already been dealt with and answered parties cannot challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction; 8 Five, an erroneous view justifies an appeal and the power of review can therefore not be exercised on the ground that the decision was erroneous on merit; Six, it will not be a sufficient ground for review that another judge would have taken a different view, nor can it be a ground for review that the court proceeded on incorrect exposition of the law and Seven, a manifest error on the face of the record should be an error that is obvious and patent and not something which can be established by a long drawn process of reasoning on points which may conceivably be two opinions. See- Elia Kasalile and 17 Others v. Institute of Social Works (Civil Application No. 187/18 of 2016) [2018] TZCA 364 (4 April 2018; TanzLII), Golden Globe International Services and Another v. Millicom (Tanzania) N.V and Another (Civil Application No. 195/01 of 2017) [2017] TZCA 171 (20 October 2017; TanzLII), Dismas Bunyerere v. The Republic (Criminal Application No. 92/08 of 2018) [2019] TZCA 467 (11 December 2019; TanzLII) and The Grand Alliance Limited v. Mr. Wilfred Lucas Tarimo & 4 Others (Civil Application No. 229 of 2020) [2022] TZCA 541 (7 September 2022; TanzLII). Guided by the above principles and in the light of the record before us, we are now in position to determine whether the application before us is meritorious or not. 9 Beginning with the first ground which is to the effect that the decision was based on a manifest error on the face of the record resulting in the miscarriage of justice, our observation is that, in principle, the ground is based on two complaints; that the Court misinterpreted the chronological order of events and purposes of judicial proceedings arising from and connected to Commercial Case No. 116 of 2016 and Civil Application No. 489/16 of 2021 and that, the applicant did not apply for leave to appeal out of time as the Court stated in the impugned decision. To our considered view the first complaint about the chronological order of events cannot be regarded as an error on the face of the record because it is not patent and is something which needs a long-drawn process of reasoning to establish it. It is so because even in his attempt to establish it, the applicant has included in his written submissions the so-called matrix of chronological order of the judicial proceedings, containing several record or proceedings most of which are even not part of the record. It is a settled position of the law that in determining whether the decision can be reviewed on a ground that it is based on a manifest error on the face of the record, the Court is enjoined to confine itself within the decision sought to be reviewed and not to any other record. See- Edger Kahwili v. Amer Mbarak and Azania Bancorp Ltd (Civil Application No. 21/13 of 2017) [2020] TZCA 20 (23 February 2020; TanzLII) and SGS Societe Generale 10 De Serveillance SA and Another v. VIP Engineering and Marketing Limited and Another [2016] T.L.R. 568. As on the second complaint that the applicant did not apply for leave to appeal out of time, as the Court stated in its decision, we agree with the applicant that at pages 7 and 9 of the decision of the Court, there is an erroneously statement to the effect that the applicant sought and obtained leave to lodge an appeal out of time. Admittedly, there is such a clerical error. What the applicant had applied and granted by the High Court was extension of time within which to lodge the notice of appeal and apply for leave to appeal, out of time. The applicant did not apply for leave to lodge an appeal out of time. There was thus, a slight manifest error on the face of record, so to speak. However, for a decision to be reviewed on the ground that it was based on a manifest error on the face of the record, the error must result in the miscarriage of justice. This takes us to the issue whether the error in question, as pointed out above, resulted in the miscarriage of justice. It is our firm considered view that, under the circumstance of the instant case, the error we have alluded to above, did not result in any miscarriage of justice. In striking out the notice of appeal because the applicant had failed to take essential steps in furtherance of his intended appeal, the Court was not influenced in any way by the erroneous remark ii that the applicant had applied and was granted by the High Court, leave to lodge appeal out of time. The decision made by the Court was based on the finding that after obtaining leave to appeal on 27.04.2021, the applicant remained inactive and took no essential step in preferring his intended appeal hence, prompting the respondent to apply for the notice of appeal to be struck out in terms of rule 89 (2) of the Rules. The above said, we find and hold that the applicant has completely failed to show that our decision sought to be reviewed was based on a manifest error on the face of the record that resulted in the miscarriage of justice. With regard to the second ground of the application that, the applicant was wrongly deprived of an opportunity to be heard, we agree with Mr. Mushukuma that the ground is baseless. Firstly, the applicant's complaint that he was not given an opportunity to address the Court on key facts contained in his affidavit in reply and the supplementary affidavit in reply, entails the process of revisiting the said affidavits which are not part of the record before us. In review, the Court need not take such troubles. Secondly, as rightly argued by Mr. Mushukuma, the applicant cannot be heard complaining that he was not heard on the issue raised by the Court suo motto on the validity leave to submit a letter requesting for the copy of the proceedings for appeal purpose out of time that was purportedly granted by 12 the High Court. The applicant's advocate, one Mr. Tairo, was accorded an opportunity to be heard on the said issue. Record speaks clearly and voluminously at page 8 of the relevant Ruling of the Court thus: "When we probed Mr. Tairo as to whether the High Court Judge was clothed with the requisite jurisdiction to enlarge the time within which the respondent (applicant herein) could request to be availed with the said copies, his answer was that the High Court Judge did so pursuant to the powers conferred on her by section 95 o f the Civil Procedure Code (Cap 33 R.E 2019) (hereinafter "the CPC") which provides for inherentpowers o f the High Court and subordinate courts in civil matters" The second ground of the application is thus, also dismissed for being baseless. Finally, is the third ground of the application predicated upon rule 66 (1) (c) of the Rules, that our decision was a nullity. This ground should not detain us at all. First of all, the complaints raised in support of the ground are more suitable on an appeal rather than in review. The Court might have proceeded on incorrect exposition of the law or it might have even wrongly or erroneously decided the issue but that cannot be the basis for a review. Errors would only justify a review if it is shown that they are obvious and patent. See- Peter Ng'homango v. Gerson A.K. Mwanga and Another 13 (Civil Application No. 33 of 2002) [2007] TZCA 162 (27 July 2007; TanzLII) and Maulid Fakihi Mohamed @ Mashauri v. Republic (Criminal Application No. 120/07 of 2018) [2019] TZCA 376 (4 November 2019; TanzLII). In the latter case the Court stated that: "A review is by no means an appeai in disguise whereby an erroneous decision is reheard and corrected but ties oniy for patent errors." The ground that the decision is a nullity, is also misconceived and is of no merit because what is being complained of in support of the ground cannot render the decision a nullity. The Court in M/S Serengeti Road Services v. CRDB Limited, Civil Application No. 12 W A" of 2011 (unreported), stated factors that can render a decision a nullity, that: 7/? its ordinary sense a decision is said to be a nuiiity if it is shown that the impugned order was delivered by a court not competent to deliver it or was obtained by fraud or collusion." Furthermore, the Court in the above cited decision, observed that; "A decision may be wrong; it may be based on a misapprehension o f the law, or a wrong application o f the court's discretion, but it does not make that decision a nullity" As earlier alluded to, the applicant in the instant application, is not complaining that the Court had no jurisdiction or that the decision was 14 obtained by fraud or collusion. The impugned decision can thus, not be a nullity. The third ground of the application is baseless and it is hereby accordingly dismissed. In view of the aforesaid, we find that the application for review is devoid of merit and we accordingly dismiss it with costs. DATED at DAR ES SALAAM this 29th day of July, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered on this 30th day of July, 2024 in the presence of Ms. Prisca Nchimbi, learned counsel for the Applicant and in absence of the Respondent is hereby certified as a true copy of the original. 15