receiver manager sky developers ltd vs lilian stephen ihema 2022 tzhclandd 12316 14 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 305 OF 2022 (Originating from Misc Land Appiicatlon No. 382 of 2021 and Land Case No. 94 of 2021) RECEIVER & MANAGER SKY DEVELOPERS LIMITED APPLICANT I & M BANK(T) LIMITED 2"° APPLICANT VERSUS STEPHEN IHEMA (the Executrix of the Estate of the Late STEPHEN ERNEST IHEMA) RESPONDENT Date of Last Order; 22.08.2022 Date of Ruling: 14.09.2022 RULING V.L. MAKANI. J This Is an appiicatlon for review by the applicants against the Order of this court In Misc. Land Application No. 382 of 2021 dated 121 October, 2021. The application has been made under Order XLII Rules 1(a) and (b) and 3 of the Civil Procedure Code CAP 33 RE 2022. In the said order, the application was dismissed with costs after the applicants herein conceded to the preliminary objection raised by the respondent on limitation of time. The applicants have filed this application seeking the court to review its order on the following grounds: 1. That there is a discovery of new and important matter, which was not discovered by the appiicants before, which ied to the dismissai of the above appiication on 21^^ October, 2021 on assumption that the above appiication was time barred. There are apparent errors on the face of the record which hav e been discovered by the appiicants which ied to dismissai of the above appiication which did not come into the attention ofthe appiicants at the time the dismissai order was made and which occasions injustice to the appiicant who timeiy died the above appiication for ieave to appear and defend Land Case No. 94 of2021. 2. Thatsince the appiicants were served with summonsand a piaintfor Land Case No. 945 of2021 on 9^^ Juiy2021, the above appiication forieave to appear and defend the suit was died within the required twenty one (21) days because the exchequer receipt for diing this appiication was issued by this Honourabie court on 29^^ Juiy 2021 upon payment ofthe diing fees of Tshs. 50,000.00, the Registrar signed and seaied the Chamber summons on 2ff^ Juiy 2021 and the afddavit in support of the appiication wassigned aspresentedfor diing on 2^^ Juiy 2021. 3. That the chambersummons was erroneousiy marked by the court cierk as presented for diing on Iff^ August, 2021 instead of 29^^ August 2021 when the diing fees were paid and this is the basis upon which the preiiminary objection which ied to the dismissai of the appiication with costs on 21^^ October, 2021 was based. 4. That the anaiysis of the summons and piaint served on the appiicants in respect of Land Case No. 94 of2021 wiii show that the same were served on Juiy 2021 and the exchequer receiptin the court die wiii aiso show that the above appiication was died on 2^^ Juiy 2021 and not 10^ August 2021 as previoUsy assumed hence dismissal of this application which was properly filed within time which is unfair to the applicants. The applicants prayed for the following orders: a) That the court review its dismissal order in respect to the above application made on 21 October 2021 and grant this application. b)For the court to proceed with the hearing ofthe above application for leave to appear and defend Land Case No. 94 of2021 which is a summary suit filed by the respondentin this court against the applicants. c) Any other or further reliefs that the honourable court may deem fit to grant. The application was argued by way of written submissions. Mr. John Laswai, Advocate drew and filed submissions on behalf of the applicants. He consolidated the grounds of review and argued them together. He said there is a discovery of a new and important matter which was not discovered by the applicants before which led to the dismissal of the application on 21=^ October, 2021. He further said they have discovered errors apparent on the face of the record and review is the only option so that the court can correct the error for the records to remain correct. He said the error which attributed to the dismissal of Misc. Land Applicatoin No. 382 of 2021 (which was timely filed) would tarnish the records of the court because the appiication was fiied within time. Mr. Laswai pointed out that the said appiication was for ieave to defend which the limitation period is 21 days according to section 3 of the Law of Limitation Act CAP 89 RE 2019 read together with Item 1 of Part III of the Scheduie to the said Act. He said it is on record that the appiicants were served with the plaint in Land Case No. 94 of 2021 on 09/07/2021 and so 21 days were supposed to expire on 30/07/2021. He said the fees were paid on 29/07/2021. He said a document is said to have been fiied when fees are paid in terms of the case of Msasani Peninsular Hotels Limited & 6 Others vs. Barclays Bank Tanzania Limited & 2 Others, Civil Application No. 192 of 2006(CAT)(unreported) and Suzan Roase Senga vs. Mussa Seleman Mbwana, Civil Appeal No. 296 of 2020(HC- DSM)(unreported). He observed in these cases it was stated that a document is deemed to be filed in court when payment of court fees is done, and the proof of payment is exhibited by the exchequer receipt. He said in view of the discovery of the error in the court records, it is the right opportunity for the court to review the order which it inadvertentiy entered whiie the application was fiied within time. He cited the case of Flora Venance Mwingira vs. George P. Kachenje, Misc. Land Application No. 350 of 2020(HC-Land Division)(unreported) where it was stated that review is mainiy for the purpose of correcting an error on the face of the record. He also cited the case of Abdiel Reginald Mengi & Another vs. Jacqauieline Ntuyabaliwe Mengi &6 Others, Civil Application No. 618/01 of 2021. Mr. Lasway concluded by saying that if the court was aware that the application for leave and defend was filed on 29/07/2021 as shown in the exchequer receipt and not 10/08/2021 it would not have made the decision of dismissing the application for leave to appear and defend. He prayed for the application for review to be granted with no order as to costs. In reply, Ms. Judith Dickson Uiomi, Advocate on behalf of the respondent drew and filed submissions on behalf of the respondent. She said the application for review originates from a point of preliminary objection raised by the respondent in the application for leave to defend. She said the court ordered the objection to be argued by way of written submissions, but they are no submissions filed to date to rebut the arguments filed by the respondent. She said when the matter came on 21/10/2021, Counsel for the applicants one Ms. Hamisa Nkya conceded to the preliminary objection and the matter was dismissed. Ms. Lliomi went on saying that the applicants are seeking for review on the order from which they conceded after deliberating the submissions advanced by the respondent on the preliminary objection. Ms. Uiomi said the receipt of payment is not the evidence which has been discovered or which was not within their disposal or knowledge. She said the arguments by the applicants are an afterthought as the applicants were given time to construe the objection and argue the same and they have not advanced reasons why they failed to present the receipt during hearing. She said there is no affidavit to prove the aiieged confusion of the receipt and date of filing by the Registry Clerk. She said the principle in the case of Msasani Peninsular Hotels Limited (supra) should not be used as a shield to cover negligence because the applicant had time to deliberate and consider the arguments by the respondent and they decided not to file submissions in reply but conceded to the objections. As for the point on error apparent on the face of record, Ms. Ulomi said it is debatabie because what fits to be as such was stated in the case of Chandrakant Joshubai Patel vs. Republic [2004] TLR 218 and discussed in the case of Melklzedeck Fanuei Kileo vs. Janeth Joseph Kileo, Misc. Land Application No. 735 of 2020 (HC-Land Division) (unreported) where an error apparent on the fact of record was said to be an obvious and patent mistake which does not require a iong drawn process of reasoning on points which may conceivabiy be two opinions. Ms. Uiomi said the arguments by the appiicants cannot fit the principie in the cited case. She said the records wiii show that the Chamber Appiication was received in court on the 10/08/2021 which is 10 days after the iapse of the iimitation to fiie the appiication for ieave to defend. She pointed out that the deiay was deiiberateiy caused because on severai occasions when parties entered appearance for the main suit the court reminded the applicants the need to file the said appiication. Ms. Uiomi called upon the court to be guided by the case of Tanzania Tanscontinetal Co. Limited vs. Design Partenship Limited, Civil Application No. 762 of 1996(unreported) where the court was cautioned to exercise the power of review sparingly and in most deserving cases. She said the appiicants are inviting this court to reopen the determination of the application while the court Is already functus officio. She prayed for the application to be dismissed with costs. In rejoinder Mr. Laswai reiterated the main submissions and emphasized that the error is apparent on the face of record that the application was filed within time, and it does not require a criticai analysis to grasp the point from the record. He said the case of Melkizedeck Fanuel Kileo (supra) supports the applicants' argument that the applicant did not exercise the right of appeai because the error is so apparent on the face of the record and such circumstances are cured by an application for review and not appeai as portrayed by Counsei for the respondent. He said the circumstances in the application are fit situation for this court to exercise its powers under Order XLII Rules l(a)(b) and Rule 3 of the CPC. He prayed for the court to vacate its order of 21/10/2021 and make a finding that the appiication was fiied within time and make necessary orders for hearing and determination of the appiication for ieave to appear and defend Land Case No. 94 of 2021. I have gone through the grounds for review and the subsequent submissions by Counsel. The main issue for consideration is whether this application has merit. Applications for review are governed by Order XLII of the CPC. And Rule 1(1)(a) and (b) of the said Order states: 1(1)Any person considering himseifaggrieved: (a)bya decree or orderfrom which an appeaiis aiiowed, butfrom which no appeai has been preferred; or (b)bya decree or orderfrom which no appeaiis aiiowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diiigence, was not within his knowiedge or couid not be produced by him at the time when the decree was passed or order made, or on account ofsome mistake or error apparent on the face ofthe record, orfor any other sufficientreason, desires to obtain a review ofthe decree passed or order made against him, may appiy for a review ofjudgmentto the court which passed the decree or made the order. The record in Misc. Land Application No. 382 of 2021 shows that the respondents had raised a preliminary objection and an order to file written submissions was given by the court. The respondents filed their submissions, but the applicants did not do so according to the court's schedule and they never sought for an extension of time to file their submissions in reply. Instead, the applicant's Advocate, Ms. Hamisa Nkya, on 21/10/2021 conceded to the preliminary objections that were raised. The matter was dismissed as a result of the said prayer. It should be noted that the dismissal was not on account of the respondent or the court but the it was the applicant's prayer that moved the court to dismiss the application. Mr. Lasway is telling this court that there is an error as the application was filed in time according to the exchequer receipt dated 29/07/2021.The main error which is pointed out by Mr. Laswai is the date appearing on exchequer receipt which according to him was a discovery of new evidence because it was issued on 29/07/2021 well within the time for filing application for leave to defend. The argument by Mr. Lasway is misconceived. The arguments put forward by learned Counsel are a response to the preliminary objection which the applicants did not find it necessary to respond. They were given a schedule to file written submissions, but they failed or found it unnecessary to file their submissions in reply. The conduct by applicants' advocate of conceding to the preliminary objection meant that a thorough research was conducted resulting to such course of action. Since there was a preliminary objection which was on the issue of time and the applicants conceded to it, now they cannot turn 10 around and say they had discovered new evidence. In fact, the prayers by Mr. Lasway are questionabie. Whiie in the submissions he is asking the court to make a finding that the appiication was fiied within time and make necessary orders for hearing and determination of the application for leave to appear and defend Land Case No. 94 of 2021. In the Memorandum for appeal, he is asking the court to review its dismissal order made on 21/10/2021 and grant the appiication and proceed to hear and defend Land Case No 94 of 2021. Firstiv. this suggests that this present appiication is also a hearing of the preliminary objection, but with due respect the issue of preliminary objection was concluded when Ms. Nkya Advocate for the same applicants conceded to the said objection. Subsequently this appiication cannot be used as a camouflage to re-open the hearing of the preliminary objection. In essence Mr. Laswai is arguing the preliminary objection through the backdoor. As correctly said by Ms. Ulomi this court is functus offlcio as a decision on the preliminary objection has already been given by this very court and was moved by the prayers of the applicants. Secondiv. though the prayers in the Memorandum of Review reflects the reviewing of the dismissal order but the subsequent prayer to proceed to hearing of the appiication 11 for leave to appear and defend leaves a lot of questions as to what would be the status of the preliminary objection. In my considered view there is no error apparent on the record, and what Mr. Lasway is suggesting does not qualify as such, the circumstances in this present case requires a long drawn process which includes evidence both orally and documentary. I subscribe to the cases of Chandarakant Joshubai Patel and Melkizeddeck Fanuel Kileo (supra). If at all there is an error the applicants were supposed to have noted the same during the preparation in reply of the preliminary objection as the objection raised was on the same issue of time limitation. The fact that the applicant's advocate willingly conceded to the preliminary objection meant that, and I repeat, a thorough research was conducted, and the question of discovery is, in my considered view, an afterthought. For the reasons above, this application has no merit, and it is hereby dismissed with costs. It is so ordered. COVlif o o v.L. makan; H JUDGI * 14/09/2022 rf. 12