kiemo ruling

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA JUDICIAL REVIEW NO. 000030301 OF 2024 1. SELEMAN ISSA KIEMO 2.HUSSEIN MZEE CHICHA 3.MWAMVITA YUSUFU MARUZUKU (ADMINISTRATRIX OF THE ESTATE OF THE LATE AHMAD JUMA MARUZUKU) 4.MWAMVITA YUSUFU MARUZUKU (ADMINISTRATRIX OF THE ESTATE OF THE LATE FATUMA DUNIA MARUZUKU 5.FATUMA ZACHARIA 6.SADIKI JUMA MCHAKULA 7.LELA ATHUMANI SHARANI 8.STUMAI OMARY NGARIBA 9.MIKIDADI SAIDI ALLY 10.ZUWENA ABDALLAH HAMIS 11.MUSTAFA ABU MARIJANI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS 1.KIGOMA/UJIJI MUNICIPAL COUNCIL 2. THE ATTORNEY GENERAL .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 18/03 & 11/04/2025 This Court dismissed, for being time barred, Land Case No. 6906 of 2024 instituted by the applicants for claiming for compensation of T.shs 152,399,725 from the 1st respondent among other reliefs sought therein. The claim for compensation was a result of the 1st respondent acquiring the applicants’ shambas for construction of Kitongoni primary and secondary schools. By way of judicial review, the applicants are now persuading this Court to review the dismissal order while setting aside the same and reschedule the case for hearing. Their application is brought under section 78(1) (a) and Order XLII Rule 1(1)(a), 3, 4(2)(a) and 8 of the Civil Procedure Code, Cap. 33 [R.E. 2022]. For easy of reference, I reproduce the reliefs that are sought in this review application in the following manner: Page. 1 1. That, the dismissal order of Land Case No. 000006906 of 2024 be reviewed and set aside accordingly. 2. That, Land Case No. 000006906 of 2024 between the parties be restored and set for hearing on merits. 3. Costs of this application be granted. 4. Any other reliefs deemed just and fit be granted. In fact, the review application is predicated on three grounds which are: 1. That, while the Plaintiffs/applicants in Land Case No. 000009606 of 2024 instituted on 28th March, 2024 were eleven (11) against two (2) defendants/respondents herein, the ruling and drawn order delivered by the Hon. Court on 8th November, 2024 bears the names of the 1st plaintiff/applicant and the 1st Defendant/respondent only eliminating other parties, who without reviewing the ruling, it would mean that the same were condemned unheard and cannot take any further legal action. 2. That, since according to Order VII Rule 6 of the Civil Procedure Code Cap. 33 R.E. 2022, where a plaint is instituted after expiry of the period prescribed by law, it must show the grounds upon which exemption from such law is sought, then that according to the contents of paragraph 8 and 11 of the plaint, the applicants had accounted for the delay and deserving exemption from limitations, a legal point of sufficient importance that was not addressed to the Hon. Court nor did it consider the same before dismissing the suit. 3. That, according to paragraphs 5 and 8 of the plaint, read together with Annexure on the plaint, being a letter by the 1st Respondent dated 04/09/2020, the Hon. Court was misled in the computation of time particularly on when time started running against the applicants as being 2021 instead 30th June, 2023 rendering the suit well within limitation. the Court was misled in computation of time whereby the Court was made to believe the time started running in 2021 instead of 30th June, 2023. When the application was called on for hearing, which proceeded by way of oral addresses, the applicants were represented by Mr. Ignatus Kagashe, learned advocate. For the respondents was Mr. Celestine Ngailo, learned State Attorney. For the reason to be ostensible later, I will focus on the parties’ submissions only on the first ground of the review. Citing Jovet Tanzania Limited v. Bavaria N.V., Civil Appeal No. 317/2021 (unreported) Mr. Kagashe pressed home the point that for an application for review to be successful there should be sufficient cause, an error apparent on the face of the record and or discovery of important matter or evidence. Page. 2 On his side, Mr. Ngailo strongly opposed the review application for the reason that it has failed to satisfy the tests by the enabling provisions on the application for review. Mr. Ngailo expounded that, the ruling delivered by this Court is appealable and if the applicants opted for review application, they ought to have stated the reason(s) for choosing not to appeal against the decision as held in Samwel Odama v. Prisca Oure, Civil Review No. 2 of 2023, (HC) (unreported). To boot, Mr. Ngailo maintained that, the submission by Mr. Kagashe, the counsel for the applicants is no difference to an appeal. Before I undertake to consider this review, it is decorous for me to start with citing the provisions of the law and the case laws that will guide me in deciding this review application. Order XLII Rule 1 (a) provides that: “1- (I) Any person considering himself aggrieved- 1. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was no within his knowledge or could not be produced by him the time the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order." Case laws, have illustrate with clarity what can be entertained in a review application. I am minded to quote a few of them including Lusajo Watson Mwakasege v. Tanzania Postal Corporation & Another, Civil Application No. 265/07 of 2022, CAT dated 6/10/2022.In Mohamed Enterprises (T) Limited v. Masoud Mohamed Naseer, Civil Application No. 33 of 2012, CAT (unreported) it was underscored that: “Once judgement and decree are issued by a given court, judges (magistrates) of that court becomes “functus officio” in so far as that matter is concerned. Should a new fact arise, which should have been brought to the attention of the court during trial, then Cap. 33 provides for procedures for review (order XLII) where appropriate, revision before a higher Court, i.e. this Court (section 4 of the Cap. 141).” Page. 3 “A consent decree can be set aside on any ground which would invalidate an agreement such as misrepresentation, fraud or mistake. This can be done only by a suit and consent decree cannot be set aside by an appeal, review or by a rule obtained on motion. But the court in its inherent jurisdiction, may set aside an interlocutory consent order which is not a final order or judgment.” Into the same bargain, in Ursula Massawe & Others v. Makiidi Village, Civil Review No. 11/1998,(HC) at Moshi (Unreported) E.N. Munuo, J, as she then was, ruled that: “The application for review is dismissed with costs for there has been no: … discovery of a new important matter or evidence which … was not within the knowledge or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record … to justify granting the review, under Order XLIII Rule 3 of the Civil Procedure Code. For those reasons the application for review is dismissed with costs.” Courts have been reluctant to extend the scenarios in which a review application may be granted. For that stance of the law, I place reliance on Tanzania Transcontinental Co. Ltd v. Design Partnership Ltd, Civil Application No. 62 of 1996, CAT where it was incontrovertibly ruled that: “The Court will not readily extend the list of circumstances for review, the idea being that the Court’s power of review ought to be exercised sparingly and in most deserving cases, bearing in mind the demand of public police for finality and for certainty of the law as declared by the highest Court of the Land.” One of the grounds for review of a decision delivered by the very court of law or tribunal is an error apparent on the face of the record. In our jurisdiction, the phrase an error apparent on the face of the record has been adequately considered and it is now mundane law. For instance, in Yazid Kassim t/a Yazid Auto Electric Repairs v. Attorney General, Civil Application No. 354 of 2019, CAT, (unreported) the Court described the same that: “What amounts to an error apparent on the face of the record has long been established as being an error which is easy to spot at a glance without a long process of argument being involved.” In Tuico (On Behalf of Its Members) v. The Chairman Industrial Court of Tanzania and Another , Civil Application No. 114 of 2011, CAT, (unreported), endorsed the position in Abasi Balinda v. Fredrick Kangwamu, [1963] EA 557 where it was held that: Page. 4 “A point may be a good ground of appeal may not be a good ground for an application for review. Thus, an erroneous view of evidence or of law is not a ground for review though it may be a good ground for an appeal.” In connection to the above in Chandrakant Joshubai Patel v. The Republic, Criminal Application No. 8 of 2002 dated 29/04/2003 reported in [2004] T.L.R. 218, CAT, the Court quoted from a book by Mulla on the Code of Civil Procedure (14 ed) pages 2335 – 2336 where the learned authors wrote: “An 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 be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions ... It can be said of an error that is apparent on the face of record when it is obvious and self-evident and does not require an elaborate argument to be established.” After revisiting the written law and case laws, back to the present review application, what I gleaned from the submissions of Mr. Kagashe is that, by proceeding with a suit with one plaintiff and one defendant as is seen in the eCMS and found in the extracted ruling, drawn order and proceedings from the eCMS, while there were 11 plaintiffs and two defendants as seen in the plaint, then that is an error apparent on the face of the record. Mr. Ngailo, is unmoved, I am unable to buy his arguments. In lieu, I agree with Mr. Kagashe that there is an error apparent on the face of the record because eCMS is the official record of a case that is registered in this Court. For instance, where there is conflict between a ruling or judgment that is in the eCMS and that is uploaded to TanzLII without being extracted from eCMS, then the ruling or judgment that is downloaded from or found in eCMS will take precedent. That is what is to be done in this matter. Mr. Ngailo is pushing that on TanzLII there is a ruling which mentions the names of all 11 plaintiffs and 2 defendants. That is true. But, the eCMS is clear. There is only one name of the plaintiff inserted by the counsel for the plaintiffs one SELEMAN ISSA KIEMO, the rest of the plaintiffs’ names were not inserted, they only appear in the signed plaint which was lodged in the eCMS. Likewise, there inserted therein only one name of the defendants, that is KIGOMA/UJIJI MUNCIPAL COUNCIL. The name of the 2nd defendant (THE ATTORNEY GENERAL) is not inserted therein. The proceedings, ruling/judgment and drawn order or decree, downloaded from the eCMS will pick only the names of the parties inserted. At the end of the day, execution or appeal may encounter a snag as stated in CRDB Bank PLC (Formerly CRDB 1996) Ltd v. George Mathew Kilindu, Civil Appeal No. 110 of 2017 (CAT) where it was decided that: “We thus find the notice of appeal bearing the name of a stranger invalid and has rendering the entire appeal incompetent liable to be struck out.” Page. 5 As the land case which gave birth to this application was incompetent on account of the reason I have illustrated above, the land case could not be dismissed for being time barred because doing so, was under presumption that every party was inserted in the plaint which is used to lodge the suit in the eCMS, while at this point, the presumption has been rebutted by Mr. Kagashe. The remedy that is to be availed to parties where a matter is ruled to be incompetent was authoritatively stated in Petrofuel (T) Limited v. Bahdela Company Limited, Civil Appeal No. 318 of 2020, CAT, dated 21/02/2025, where it was held that: “It is glaring from the reasoned ruling of the learned trial Judge that having sustained the preliminary objection raised by the respondent, this meant that he had acknowledged that the appellant’s winding up petition was incompetent. Therefore, the said petition was thus, not capable of being dismissed as it was not determined on merits. We are fortified in that regard, because it is settled law that, where a suit, an appeal or application is found to be incompetent, the remedy is to strike it out instead of dismissing it.” So, that important new matter discovered (an error apparent on the face of the record) in this application regarding the land case that was dismissed by this Court cannot be rectified in the eCMS by way of rectification under section 96 of the Civil Procedure Code as suggested by the counsel for the Respondents. The section provides: “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either of its own motion or on the application for any of the parties.” For avoidance of doubt, the error is apparent on the face of the record as I have explained above. For the reasons underscored above, the review application is ruled merited, thus it is partly granted to the extent I have explained in this ruling. In the premises, the order that the suit is dismissed for being time barred was erroneous, it is set aside. Instead, I order that Land Case No. 6906 of 2024 is struck out off the Court’s register for being incompetent on the ground I have explained above is substituted for. Each party shall bear their own costs as the inconformity in the land case which has led to this decision was discovered neither by the counsel for both parties nor the Court itself. I so rule. Dated at KIGOMA this 11th of April 2025 . Page. 6 J. NKWABI JUDGE OF THE HIGH COURT Page. 7