CIVIL APPLICATION NO 844 01 OF 2023 SYMBION POWER TANZANIA LIMITED VS CRDB BANK PLC

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A.. KENTE. J.A.. And MDEMU. J.A/> CIVIL APPLICATION NO. 844/01 OF 2023 SYMBION POWER TANZANIA LIMITED............ ..............................APPLICANT VERSUS CRDB BANK PLC.............. .............................................................. RESPONDENT (Application for Review of the Judgment of the Court of Appeal Of Tanzania at Dar es Salaam) (Mugasha, Kitusi and Mdemu, JJA.^t dated the 5th September 2023 in Civil Appeal No. 371 of 2022 RULING OF THE COURT 12th June & 31st July, 2024 KENTE J.A.: The applicant namely, SYMBION POWER TANZANIA LIMITED is asking the Court, in terms of section 4 (4) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (the AJA), read together with Rule 66 (1) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to review its own judgment and decree dated 5th September, 2023 in Civil Appeal No. 371 of 2022. The grounds upon which this application is predicated as contained in the Notice of Motion, are that: 1. The Court in holding that the Deed o f undertaking received in evidence as Exhibit P I was not perpetual, it ignored to a large extent the appellant's testim ony and docum entary evidence tendered nam ely Exhibits P3 and P7 which shows the perpetuality o f the Deed o f Undertaking; 2. The decision o f the Court was based on a m anifest error by ignoring the p a rtie s' undertaking in as fa r as the paym ent o f the loan including schedule o f paym ents and rem edies to be exercised in the event o f default; 3. Failure by the Court to property determ ine the grounds o f cross appeal in C ivil Appeal No. 371 o f2022 deprived the applicant's right to be heard. In support of the application is an affidavit affirmed by one Dr. Magesvaran Subramaniam, a Principal Officer of the applicant company. The said affidavit contains, by and large, a statement of the background facts giving rise to the present application. On the other hand, the application is strongly opposed by the respondent through an affidavit in reply sworn by Mr. Danford Kisinga, its Head of Legal Affairs. The facts giving rise to the suit before the trial court and subsequently to the earlier mentioned appeal to this Court are briefly to the following effect: Before the occurrence of the dispute, the applicant and the respondent enjoyed a cordial banker-customer relationship. The applicant is a sister company of SYMBION POWER LLC owned by M/S. SYMBION POWER HOLDING LLC of Delaware in the United States of America. On 2nd May, 2013, the respondent extended an overdraft facility to SYMBION POWER LLC (herein after referred to as the borrower) for a sum of USD 10,000,000 which was intended to finance working capital for the ongoing projects in Tanzania under the Millenium Challenge Account Tanzania (MCAT). Subsequently thereafter, more credit facilities were also applied for and on 30th December, 2016 the applicant applied for restructuring of all the facilities. Eventually, the applicant made an undertaking to pay the total outstanding loan amount which at the time, stood at USD 13,000,000. It was the applicant's promise in the Deed of Undertaking which was signed by the parties, that, it was to pay the whole sum of money owed to the respondent (USD 13,000,000). However, to the contrary, the applicant did not honour the undertaking despite several reminders. It is common ground that, on 11th August, 2021, the Tanzania Electricity Supply Company Limited (TANESCO) deposited into the applicant's account held with the respondent a total of USD 13,000,000. Subsequently and without prior notification to the applicant, on 24th August, 2021 the respondent transferred the whole amount deposited by 3 TANESCO. Consequently, after withdrawing the monies, the respondent wrote to the applicant informing it that, it had utilized the said sum of USD 13,000,000 deposited in its account to clear the outstanding balance which the applicant had undertaken to pay. As would be expected, that action aggrieved the applicant. Accordingly, it wrote several letters to the respondent demanding that the amount be remitted back as the applicant had only undertaken to pay the debt in monthly instalments of USD 100,000 for a period of 12 months only. When the demand went unheeded, the applicant decided to institute in the High Court (Commercial Division) a suit against the respondent (Commercial Case No. 153 of 2021) alleging that, in the absence of its permit, the respondent had no mandate to transfer the money from its (applicant's) bank account. The respondent refuted the claims and maintained that, it had transferred the said money because it was entitled to do so as per the Deed of Undertaking which had not been fulfilled. Having heard the parties and being satisfied that the case against the respondent had been made out and further noting that indeed, the respondent had no mandate to withdraw the said monies as the Deed was not perpetual, the trial court ordered for the applicant to be refunded the sum of USD 13,000,000 minus 40%, plus interest at the rate of 7% from the date of accrual of the claim till the date of final payment. Dissatisfied with the decision of the trial court, the respondent preferred an appeal to this Court, while, in terms of Rule 94 of the Rules, the applicant lodged a Notice of a cross appeal. After hearing the parties, this Court found some merit in the appeal and accordingly allowed it. The applicant's cross-appeal was dismissed. Still aggrieved, and apparently desirous, but being unable to challenge the Court's decision, the applicant preferred the instant application beseeching us to review our decision. Before us, Mr. Erick Kamugisha Rweyemamu represented the applicant, while the respondent appeared through Mr. Peter Museti, its Principal Officer and Mr. Juvenalis Ngowi, learned advocate assisted by advocate Ms. Faiza Salah. We must at the outset state that, pursuant to Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 both parties had filed their respective written submissions each in support of its position. Submitting in support of the application, Mr. Rweyemamu was very brief and straight to the point. Having adopted the material contents of the applicant's notice of motion, affidavit and written submissions, he prayed to abandon the 3rd ground for review and thus argued the remaining grounds in conjunction. The learned counsel contended that, there was a manifest error on the face of the record as the Court's decision was based on the fact that the Deed of undertaking was perpetual while the transfer of USD 13,000,000 from the applicant's bank account was not part of its undertakings. He submitted that, in the absence of a new deed of undertaking, the respondent had acted uitra vires. He further submitted that, the Court at page 24 of the record had made a finding that the deed was perpetual while ignoring some exhibits tendered and relied upon by the applicant before the trial court. In response, Mr. Ngowi begun by adopting the affidavit in reply and the respondent's written submissions. It was his submission that the instant application does not meet the necessary conditions for an application for review in terms of Rule 66 of the Rules. He challenged the applicant for not having demonstrated the presence of an actual error on the face of the record to warrant grant of the application. Regarding the question as to what constitutes an error on the face of the record, he referred us to our earlier decision in the case of Chandrakant Joshubhai Patel v. Republic [2004] T.LR. 218. Mr. Ngowi insisted that, in an application for review, the Court is not allowed to go back to re-evaluate evidence as the learned counsel for the applicant appeared to suggest because doing so would amount to hearing an appeal in disguise. The learned counsel submitted that, upon an appeal to this Court, the issue as to whether the Deed of Undertaking was perpetual or not was canvassed in the appeal and that the Court held that indeed the Deed was perpetual. The learned counsel submitted that, the applicant is trying to fault that decision and by so doing he is moving us through the back door to re-hear the appeal. He therefore prayed that the application be dismissed for want of merit. In his brief rejoinder, Mr. Rweyemamu reiterated his submission in chief and further contended that there is a manifest error on the Court's decision as it wrongly held that, the deed of undertaking was perpetual. The learned counsel refuted the contention by Mr. Ngowi that the application was a disguised appeal. We wish to set out on consideration of the instant application by stating that, whereas the power of the Court to review its own decisions is derived from section 4 (4) of the AJA, rule 66(1) of the Rules, provides for the scope of the powers and stipulates the grounds upon which an application for review can be predicated. It states that: "66(1) The Court m ay review its judgm ent or order, but no application for review sh all be entertained except on the follow ing grounds- (a) the decision was based on a m anifest error on the face o f the record resuiting in the m iscarriage o f ju stice; or (b) a party was wrongly deprived o f 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 jurisdiction was procured illegally, or by fraud or perjury." Coming back to the present application, and as we have already indicated earlier in this ruling, thequestion is whether or not theapplicant has demonstrated the existenceof a manifest error on the face of the record which resulted into a miscarriage of justice. The applicant contends in the 1st and 2nd grounds that, in its judgment, the Court wrongly decided that the Deed of Undertaking was perpetual and that it ignored the schedule of payments and the prescribed remedies upon default. For ease of reference, the holding by the Court on that aspect which runs from page 24 was that: "In our view, clause 5(d) o f that Deed constitutes an offer by the respondent to fu lly pay the debt and on the other hand, the appellant's consideration in a form o f desisting from im plem enting the contem plated recovery m easures which the respondent was unprepared to face...There is neither express nor im plied indication that the prom ise in Clause 5(d) would 8 expire on a particular date. To argue that since the O verdraft fa cility had an expiry date then the Deed o f Undertaking m ust also have been fo r a specific period, is an attem pt to give legitim acy to a party who tries to benefit from his own w rong....In our conclusion the only tim e the respondent would be discharged from lia b ility to pay, is upon fu ll paym ent o f the debt as prom ised by it " Obviously, what the applicant's counsel is saying is essentially intended to fault the Court for its alleged failure to uphold the applicant's complaint that the Deed of Undertaking was not perpetual. In this connection, we need to make it understood that, it is not sufficient for purposes of paragraph (a) of Rule 66 (1) of the Rules, for the applicant to merely allege that the decision of the Court contains a manifest error on the face of the record if, as it happened in the present case, elaboration of those errors disclose the grounds of appeal rather than the alleged manifest errors on the face of the decision sought to be reviewed. Moving forward, we wish to emphasize here, for the benefit of the aggrieved parties and the legal fraternity that, what constitutes a manifest error on the face of the record is such an error which is a result of an oversight, clerical mistake, or any other evident error in the judgment, ruling or order which is sought to be reviewed. It must further be 9 emphasized that, section 4(4) of the AJA read together with Rule 66(l)(a) of the Rules gives this Court only such powers with which to rectify apparent errors on the face of the judgment, ruling or order provided that such errors are obvious. In other words, this Court cannot review its own decision except to correct any clerical mistake or some error arising from any accidental slip or omission in a judgment or order. The enabling law does not clothe the Court with the jurisdiction to act as an appellate court and sit to reconsider the correctness or otherwise of its own decisions. In Tanganyika Land Agency Limited and 7 Others vs Manoar Lai Aggrwal, Civil Application no 17 of 2008 (unreported), the phrase "error on the face of the record" was defined as follows: ".....an obvious and patent m istake and not som ething which can be established by a iong drawn process o f reasoning on points which there m ay conceivably be two opinions." Essentially, the complaint by the applicant in the instant application is an expression of its dissatisfaction with the decision of the Court in finding that the Deed of Undertaking was never ending until full payment of the debt as promised by it. Clearly, that is not a patent error on the face of the record properly so called to warrant this Court's intervention by way of review. Having gone through the record and the impugned 10 judgment, we have not found any material to enable us Interfere with the Court's decision in Civil Appeal No. 371 of 2022. On that account, we see no merit in the application before us which we accordingly dismiss with costs. DATED at DAR ES SALAAM th is __ day of July, 2024. B. M. A. SEHEL JUSTICE OF JUSTICE P. M. KENTE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 31st day of July, 2024 in the presence of Mr. Erick Kamugisha Rweyemamu, learned Advocate for the Applicant and Mr. Gasper Nyika, learned Advocate for the Respondent who both appeared via video conference is hereby certified as a true copy of the