CIV

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 735/16 OF 2023 (CORAM: LILA. 3.A.. MAIGE, 3.A. And MURUKE, 3.A.) SANLAM GENERAL INSURANCE (T) LIMITED............................. APPLICANT VERSUS AMC TRADE FINANCE LIMITED..............................................RESPONDENT (Application for review from the decision of the Court of Appeal at Dar es Salaam) (Mkuve, Mwandambo And Maiae, 33A.1 dated the 12th day of September, 2023 in Civil Appeal No. 393 of 202Q RULING OF THE COURT 26th March & 11th April, 2025 LILA, 3.A.: This application is brought under Rule 66 (1) (a) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicant is seeking a review of the Court's judgment in Civil Appeal No.393 of 2020 dated 12th September, 2023 which overturned the High Court's decision in Commercial Case No. 9 of 2019. The formidable issue between the parties before the High Court was whether the marine insurance risk cover by the name Marine Cargo Policy Open Stock Throughput Cover, Ref. No. P/01/2017/T2001/000001 (the policy or exhibit PI or Dl) for transport of raw cashew nuts from warehouses in Mtwara and Lindi Regions was restricted to inland transit from Mtwara and Lindi to which the High Court held positively. The issue arose following the respondent's claim for indemnity of USD 840,434.99 for the cargo weighing 574,620 Kilogrammes found to have been damaged at Ho Chi Minh City, the port of destination, which claim was repudiated by the appellant on the basis that the cause of damage was inherent vice and the nature of the subject matter. On appeal to the Court and after a serious examination of the coverage of the policy, in overturning the High Court's finding, it was held that: - "Mindful o f the above, an examination o f the policy (be it exhibit PI o f D l) reveals that it was meant to attach for all sailings and/or sendings on or after 15th December 2017 to l4 h December, 2018 both dates inclusive involving the cargo; raw cashew nuts. It is significant that, the word sailing is used here to connote the action o f using boats or ships. The word sailing is too dear and unambiguous to attract any other meaning than its literal meaning used in the policy. Consequently, contrary to the findings o f the trial court, the policy was not limited to inland transit only. Besides, reading the policy as a whole, the finding by the trial court on the insertion o f TZS2,271,997,060.00 below the section showing inland transit cannot be correct. This is because, the evidence on record providing payment o f premium in the sum o f TZS 5,201,055.00 inclusive o f VAT is consistent with the section in the policy titled Gross premium rates showing 0.195% for marine which was payable per the options provided beiow it, that is to say; A. Marine 4,407,674.3 VAT 18% 793,381.4 Total Deposit Premium: 5,201,055.7 The amount reflects the premium which appears to have been calculated from the estimated annual carry o f TZS 2,271,997,060.00. the respondent received the premium as consideration for the marine cargo insurance in question and no more. From the foregoing, it seems to us to be inconceivable that the respondent could have received for marine cargo which was the only consideration for the contract o f insurance and renege from it contending as it did that the policy was meant to cover inland transit only. Put it in its proper place, this was a fitting occasion for the application the principle o f estoppel. A reading o f the insurance contract; exhibit PI as a whole without reference to the transportation agreement and a quotation from an insurance broker which was nonetheiess not admitted as part o f the evidence, couid not have resulted into the finding the trial court arrived at On the contrary, the appropriate finding should have been that the policy was not meant for inland transport only but covered marine risks and thus the damage to part o f the cargo was covered. As we have alluded to shortly, much as we do not agree with the appellant's advocate on the application o f estoppel on the raising o f the defence, there is merit in the argument that the same was an afterthought This is so because, had the respondent been firm that the cover was meant for inland transport only, it should not have bothered itself so much in engaging Top/is and Harding to conduct a loss survey o f the cargo in Vietnam if the policy was limited to inland transit only. Logic dictated raising the defence at the time the appellant lodged its claim" The grounds for review fronted by the applicant are as can be gleaned from the notice of motion and supporting affidavit in paragraphs 9, 10 and 11. In the notice of motion, the applicant stated that: - "1. That, the decision o f the Court was based on a manifest error on the face o f the record resulting in the miscarriage o fjustice. 2. That, the Court's decision is a nullity resulting in the miscarriage o f justice as it contravenes the provisions o f section 55 (1) and (2) (a), (b) and (c) of the Marine Insurance act o f1906." In paragraphs 9, 10 and 11 of the affidavit affirmed by Khamisi Abdallah Suleiman, a Principal Officer of the applicant, holding the position of Chief Executive Officer, supporting the application which, in essence, elaborate the grounds of review, it is averred as follows: - "9. The decision o f the Court was based on an error apparent on the face of the record in that: - a. The loss which was being claimed by the Respondent resulted from insurance policy issued by the Applicant. b. Policy o f insurance which appeared at page 341- 346 o f the record o f appeal shows on its face that it is a marine insurance throughput policy for transport o f cashew nuts from warehouses in Lindi, Mtwara, Tunduru and Tanga Region. A copy o f the policy is attached as "Annexure SANLAM 4" to form part of this affidavit c.It is not disputed that the Court record that damage to cashew nuts was caused by spouting at the destination. I state that sprouting is an 5 inherent vice in nature o f cashew nuts it occurs naturally after passage o f time. It cannot be insured by any insurer. d.I state firmly that the decision o f the Court was based on an error that the policy o f insurance covered this peril and loss. I state further that the policy forming part o f court record attached to this application shows on its face that it does not. 10. I have been advised by the Applicant's Legal Counsel, which advise I verify believe to be true that: - a. the decision o f the Court was issued against the law regulating marine insurance which lists the cause o f claimed loss to fall within the legally established exceptions on which no claim for loss can He. b. It is a requirement of the law that all loss arising out o f policy insurance be proven before it is granted. In this instance the Court ordered payment o f USD 840,434.99 being the value of the damaged cashew nuts covered by the policy without proof o f loss by the respondent. c. That, exhibit P4 relied by this Court is not proof o f loss o f USD 840,434.99 A copy o f exhibit P4 is attached as "Annexure SANLAM 5" to form part o f this affidavit 11. That the decision o f the Court ordering the Applicant to pay a huge sum o f money at the very least USD 840,434.99 has caused miscarriage o f justice to the applicant and will result in financial ruin." Appearing for the applicant before us were Mr. Oscar Msechu, Joseph Ndazi and Mr. Godwin Nyaisa, learned advocates. For the respondent, Mr. Gaspar Nyika, learned advocate, appeared. The applicant had lodged written submission in support of the application but not the respondent. Together with the written submissions, the applicant also lodged a list of authorities and additional list of authorities to fortify their arguments in terms of rule 34(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). On the other side, in resisting the application, the respondent lodged an affidavit in reply and a list of authorities. Mr. Ndazi argued the application on behalf of other learned advocates for the applicant. He first adopted the averments in the supporting affidavit, written submission and the list of authorities as part of their arguments and made some elaborations. In its submission in respect 7 of the first ground that the Court's decision was based on manifest error on the face of the record, the applicant asserted that the Court was wrong to hold that the damage occasioned to the respondent's consignment of cashew nut was a risk covered under the policy making the applicant responsible for indemnification of the same. While the applicant did not dispute the decision by the Court on appeal that the policy covered transport by sea and that damage to the consignment was caused by sprouting, it was argued that the Court erred to hold that the damage at the port of destination was covered by the policy and that damage by sprouting of cashew nuts, exclusive of any other covered external perils, is a loss that is covered by marine insurance which errors, the applicant claims, to have been the basis of the Court's finding. According to the applicant, the report by Vina Control was to the effect that, the damage occurred at the port of destination instead of during the sea voyage and as the respondent did not lead evidence during trial that the damage occurred during sea voyage through breakage, fire, soaking or contamination by water, then the damage was due to sprouting which is a natural process which occur on their own (inherent vice), not covered by the policy. To convince us to appreciate the error, the applicant referred us to the policy (exhibit Dl) at page 401 of the record of appeal which was referred by the Court in its judgment but made an apparent and manifest error as to the extent of its coverage and as to what perils were covered. Due to such errors, the applicant implored us to review the decision so as to make a proper decision on the policy of insurance. In respect of the Court's decision being a nullity, the applicant's argument is that the Court's decision was made in contravention of the provisions of section 55(1) and (2)(a), (b) and (c) of the Marine Insurance Act of 1906 (the Act) which applies to Tanzania through the reception clause in section 2(3) of the Judicature and Application of Laws Act chapter 358 R. E. 2019, because Tanzania has no own Marine Law. After quoting in full the said provision, it was the applicant's argument that the provision relieves the insurer from the liability on inherent vice and any loss which is not proximately caused by peril insured against. As opposed to this legal position, the applicant argued, the Court held that the applicant is liable to pay for the damage and loss of the amount of USD 840,434.99 which erroneous decision may have a very serious consequence resulting in the miscarriage of justice as it can cause the applicant to suffer financially. In fortifying his arguments, Mr. Ndazi referred the Court to the case of G. S. Contractors Limited vs Commissioner General (TRA), Civil Application No. 155 of 2016 at page 5 to 10 and the case of National Microfinance Bank vs Leila Mringo and Others (Civil application No. 316 of 2020) [2021] TZCA 233 (7June 2021: TANZUI) at page 5 to 8. When referred to the provisions of rule 66(1) an (2) (a) to (e) of the Rules by the Court, Mr. Ndazi admitted that in review applications before this Court, the Court has to consider if there are errors apparent on its own judgment only and that the applicant in this application is not inviting the Court to re-evaluate the evidence afresh and come up with its own decision. But, he added, the annexures to the supporting affidavit are intended to let the Court appreciate the contents of the policy and its scope hence acknowledge the errors made by the Court in its decision. As for the allegedly contravened provisions of the Act, Mr. Ndazi conceded that the same was not brought to the attention of the Court nor was it discussed and a decision on it made hence not reflected in the judgment sought to be reviewed. Responding to the Court's inquiry whether an erroneous decision is a ground of review, Mr. Ndazi was gripped that the Court ought to have known the existence of such law. Mr. Nyika, on his part, argued the grounds of review orally having not lodged written submission in reply. He prefaced his argument by responding to the written and oral arguments by the applicant and Mr. Ndazi respectively. His general view was that paragraphs 9 and 10 of the affidavit in support of the application clearly invites the Court to rehear the appeal by re-evaluating the evidence together with other documents enclosed to the affidavit and arrive at a different decision which, he argued, it is beyond the scope of. jurisdiction of review of this Court. He argued that the scope is very limited and is an exception to the general rule that the case had already been conclusively determined by the Court on appeal. In his further attack to the application, Mr. Nyika argued that the Court is moved under rule 66(1) and (c) of the Rules which required the applicant to show apparent errors on the face of the record which meant errors on the decision and how the Court's decision is a nullity. Looking at the facts reflected in the affidavit, he argued, no apparent error has been shown nor can be seen which in terms of the Court's decision in Livinus Uzo Chime Ajana vs Republic, (Criminal Application No. 72/01 of 2020) [2023] TZCA17446 (21 July 2013) at pages 11 to 12 where the definition as to what is an error manifest on the record is provided to mean that it should be an error which could be seen when running and reading. li Addressing the Court on significance of the other documents annexed to the supporting affidavit, he submitted that in the light of rule 66(1) of the Rules and page 14 of the same decision of Livinus Uzo Chime Ajana vs Republic (supra), the record of review means the notice of motion and the judgment/decision or order subject of review only. Attachment of other documents, Mr. IMyika argued, reveals the intention of the applicant to invite the Court to look at other documents outside the decision subjectof review. That, he argued, amount to appealing against the Court's own decision which is not permitted in review applications. He argued that the grounds of review advanced amounts to appeal grounds not grounds of review. In all, he submitted, what can be seen in the grounds of review is the applicant's dissatisfaction with the Court's decision. Whether the Court's findings were proper or not, is based on a misconception of the law and whether the Court arrived at a wrong finding, do not form a ground of review, he argued concluding that the Court can make errors in its decision but that does not justify a review of the decision unless such error is so apparent and has occasioned an injustice. In that accord, he argued that a review is on matters reflected in the Court's decision not otherwise and hence the ground on contravention of Section 25 (1) (2) (a) (c) of the Marine Act, was a misconception as it was not canvassed before the Court, 12 not discussed or a finding made in the Court's decision sought to be reviewed. He emphasized that it is trite law that, the Court's jurisdiction of review, is an exception and should be invoked on rare circumstances so as to uphold the public policy behind it that litigation must come to an end. The cases cited by Mr. Ndazi did not pass unchallenged by Mr. Nyika. Starting with the case of G. S. Contractors Limited vs Commissioner General (TRA) (supra), where review was granted for a. reason that the Court had wrongly held that appeals from the Tribunal are third appeals which required certificate on a point or points of law as a condition precedent but second appeals which did not need any certificate on points of law, Mr. Nyika argued that the error was apparent which is not the case herein. Regarding the case of National Microfinance Bank vs Leila Mringo and Others (Civil application No. 316 of 2020) [2021] TZCA 233 (7June 2021: TANZLII) at page 5 to 8, Mr. Nyika said it involved discussion on right to be heard as the appellant was denied the right to be heard on the issue raised suo motu by the High Court hence a deprivation of the parties right to be heard which is a prescribed ground under rule 66(l)(q) of the Rules which is not the case herein. In his brief rejoinder Mr. Ndazi refuted Mr. Nyika's contentions. He argued that this is not an appeal in disguise and the applicant is not inviting the Court to make a decision relying on documents beyond the decision of the Court. He insisted that the Court is entitled to review its decision made in contravention of the law as it did in the case of G.S Contractors Limited vs Commissioner General (TRA) (supra). From the applicant's notice of motion, supporting affidavit, written submission and arguments before us, it is plain that the applicant has submitted herself to the review jurisdiction of the Court on two main grounds. The scope of such mandate lies in Rule 66 (l)(a) to (e) upon which the application must be premised. It provides: - "66-(l) The Court may review its judgment or order, but no application for review shail be entertained except on the following grounds- (a) the decision was based on a manifest error on the face o f the record resulting in the miscarriage o fjustice; or (b) a party was wrongly deprived of an opportunity to be heard; or / (c) the court's decision is a nullity; or (d) the court had no jurisdiction to entertain the case; or (e) the judgment was procured illegally, or by fraud or perjury." Summarizing these benchmarks for review jurisdiction of the Court under these provisions, in James @ Shadrack Mkungilwa and Another vs Republic, Criminal Appeal No. 1 of 2012 (unreported), the Court pronounced these guiding principles: - "It is settled law that a review o f the judgment o f the highest Court o f the land should be an exception. The review jurisdiction should be exercised in the rarest o f cases and in the most deserving cases which meet the specific benchmarks stipulated in Rule 66 (1). A review application, therefore, should not be lightly entertained when it is obvious that what is being sought therein is a disguised re-hearing o f the already determined appeal..." The Court went further to state that: - "It will not be a good ground for review that another judge would have had different view. Nor can it be a sound ground for review that the court proceeded on an incorrect exposition o f the law or misconstrued a statute. There must be finality to litigations..." In the light of the above we find ourselves constrained to fully agree with the learned counsel for the respondent on the exposition of law on review jurisdiction of the Court as well as the cited cases. The first applicant's ground of review is that the decision of the Court was based on a manifest error on the face of the record resulting in the miscarriage of justice. The Court has consistently held as proper exposition of the law an excerpt from Mulla, Indian Civil Procedure Code, 14th Edition Pages 2335 - 36, expounding that, for an error to be an error apparent on the face of the record, it must pass the test that: - "An error apparent on the face o f record must be such as can be seen by one who writes and reads, that is, an obvious and patent mistake and not something which can be established by a long- drawn process o f reasoning on points on which there may conceivably be two opinions." The major contention in this application is that the Court made, in its decision, two errors, one; by holding that the Policy of marine insurance covered not only transport of cashew nuts by sea, but it also covered or extended to stay of cashew nut at the port of destination and two; that damage by sprouting of cashew nuts, exclusive of any other covered external perils, is a loss covered by a policy of marine insurance, hence arriving at a judgment the applicant claims to be injurious to its financial status hence a miscarriage of justice. In the first place, we think the applicant misconceived the Court's decision in these respects. As the quoted excerpt from the Court's decision vividly shows, the point of contention before the High Court was whether the policy covered transport by sea to which the High Court held it did not and that it only covered inland transportation of raw cashew nuts from Mtwara and Lindi to Dar es Salaam port only which decision was challenged before the Court and the Court overturned it and held that it also covered sea transport to port of destination to which finding, it appears, now it is not disputed by the applicant. The issue of extended stay of cashew nuts at the port of destination and its damage due to such over stay was not a subject of discussion. Such is a new contention being raised in this review application which cannot be entertained. Even assuming that it was, yet the complaint in this ground appears to be dissatisfaction of the applicant on the Court's finding. That is so as the applicant, in both the written submission and Mr. Ndazi's arguments before us, made reference to the policy and evidence on the matter which he thought were not properly interpreted or were misconceived and in other instances that no evidence was led to that effect by the respondent. The contention, therefore, invites the Court to re-examine and re-evaluate the evidence and exhibits tendered before the High Court and come up with a different finding to that made by the Court. That is not the mandate of the Court for one; it means, so as to discover the error, the Court has to involve itself into a long drawn process to discover it and, two, to do so it amounts to re-hearing of the appeal which was fully determined by the Court which is not permitted in review application before the Court. More to the above, discussion in the Court's decision also centered on the damage of cashew nut found at the port of destination not the cause of damage whether it was due to inherent vice or nature of the subject matter as the applicant suggests in this application and the Court held: - "A reading o f the insurance contract; exhibit PI as a whole without reference to the transportation agreement and a quotation from an insurance broker which was nonetheless not admitted as part o f the evidence, couid not have resuited into the finding the trial court arrived at On the contrary, the appropriate finding should have been that the policy was not meant for inland transport only but covered marine risks and thus the damage to part o f the cargo was covered." We also note that prior to the Court's above finding, it had realized that: - 18 "It was common ground that, upon arrival at the port of destination, part of the cargo weighing 574,620 kilogrammes was found to have been damaged... "(Emphasis added) In the circumstances, this complaint/ground does not constitute a manifest error on the face of the record resulting in failure of justice. We, in effect, hold that re-hearing of the appeal, is outside the ambit of the Court's jurisdiction of review or it is not a function of the Court in review proceedings. In ground two of review, the applicant is moving the Court to review its decision on the ground that it was issued against the law which provides for exceptions on which claims for loss can lie. Reference here was to the provisions of 55(1) and (2) (a), (b) and (c) of the Act which was allegedly contravened making the decision a nullity. The cited section provides: - "55(1) Subject to the provisions o f this act, and uniess the policy otherwise provides, the insurer is liable for any loss proximately caused by a peril insured against, but subject as aforesaid, he is not liable for any loss which is not proximately caused by a peril insured against (2) in particular: - (a) the insurer is not liabie for any loss attributable to the willful misconduct o f the assured, but, unless the policy otherwise provides, he is liable for any loss proximately caused by a peril insured against, even though the loss would not have happened but for the misconduct or negligence o f the master or crew. (b) Unless the policy otherwise provides, the insurer on a ship or goods is not liable for any loss proximately caused by delay, although the delay be caused by a peril insured against. (c) Unless the policy otherwise provides, the insurer is not liabie for ordinary wear and tear, ordinary leakage and breakage, inherent vice or nature o f the subject matter insured, or o f for any loss proximately caused by rats or vermin, or for any injury to machinery not proximately caused by maritime perils." (Emphasis added) In essence, the applicant's position is that the Court's decision was contrary to the law that exempts the insurer from liability for damages arising out of inherent vice such as sprouting. Luckily, and in our view correctly, before us, counsel of both parties were agreeable that no such discussion about that provision featured before the Court and no such finding of the Court appears in the Court's decision subject of this review application. Nothing much can be said other than reminding the parties that, as the law now stands, the Court can review its decision or order only meaning that the thresholds for review provided under rule 66 (1) of the Rules must be found in the Court's decision. In Minani Evarist v. Republic, Criminal Application 7 No. 5 of 2012 (unreported), the Court considered the applicability of that rule and stated that: - "We are settled in our minds that the language of Rule 66 (1) is very dear and needs no interpolations. The Court has unfettered discretion to review its judgment or order, but when it deddes to exerdse this jurisdiction, it should not by any means open invitation to revisit the evidence and re-hear the appeal" [Emphasis added]. The above position is in line with the decision in the case of Chandrakant Joshubhai Patel V. Republic [2004] T.L.R 218 wherein the Court had this to say: - "an error apparent on the face o f 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 o f reasoning on points on which there may conceivably be two opinions ...A mere error of law 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 o f an error that is apparent on the face o f the record it is obvious and self-evident and does not require an elaborate argument to be established." (emphasis added) Appreciating the above stated position, the Court in the case of Godfrey Sayi vs Anna Siame, as legal Representative of the late Mary Mndolwa, Civil Application No. 190 of 2017 (unreported), faced with nine grounds of review presented by a learned counsel for the applicant which were not placed before the Court in the first place, the Court declined to consider them holding that: - "We are of the view that what he termed as 9 errors on the face of record is neither here nor there as it was not considered by the Court in the first place, thus cannot qualify when tested within the benchmarks of Rule 66(1). The pointed-out errors even if they exist, are fit as grounds of appeal rather than grounds for review. In the case o f Karim Ramadhani vs Republic Criminal Application No. ■ 25 o f 2012 (unreported), the Court was categorical that an error complained of in review must be on the face of the decision. "(Emphasis added) Apart from the above, it plainly appears that the applicant's contention is that the Court did not take into cognizance or made the decision quite unaware of the stated provision. That is obviously an error of law not an error on the face of record which does not justify a review. In the case of Godfrey Sayi vs Anna Siame, as legal Representative of the late Mary Mndolwa (supra), the Court went further to distinguish between the two stating that: - ”We further wish to make it dear that there is a difference between an error on the face o f the record and an erroneous decision. Where established the former warrants review but the latter is a subject of an appeal." Besides, even on our own reading of the cited provision, we find nowhere it is categoricaliy stated that any contravention of it renders a decision a nullity. Obviously, it is a misconception of the law on the part of the applicant to think so. The above said, it is apparent in this case that the applicant has failed to meet the benchmarks for review under our law. We accordingly dismiss this application with costs. DATED at DODOMA this 11th day of April, 2025. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 11th day of April, 2025 in the presence of Mr. Godwin Nyaisa, learned counsel for the applicant and Ms. Faiza Salah, learned counsel for the respondent, both through video conference; is herebv certified as a true copy of the original.