CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MUGASHA. J.A.. MAIGE, J.A. And KHAMIS. J.A.^ CIVIL APPLICATION NO. 31/08 OF 2023 THERESIA THOMAS MADAHA..................................................APPELLANT VERSUS JONAS SAMSON NDAWAVYA (As the Administrator of the estate of late PAULINA SAMSON NDAWAVYA)........ ..... RESPONDENT (Application for Review of the decision of the Court of Appeal of Tanzania at Mwanza) fMuqasha, Mwandambo, Levira. JJJ.A.^ dated the 11th day of December, 2019 in Civil Appeal No. 45 of 2017 RULING OF THE COURT 27th May, & 6th June, 2024 MAIGE, J.A.: This application has been preferred under sections 4(4) of the Appellate Jurisdiction Act, Cap. 141 RE 2019 (the AJA) and Rule 66 (1(b), (d) and (e) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit deposed on the applicant's behalf by Mr. Elisa Abel Msuya, learned advocate. The respondent deposed an affidavit in reply to contest the facts in the affidavit. i In the application, the Court is called upon to review its own decision which reversed the decision of the High Court dismissing the respondent's suit on ownership of a land at Plot No. 202 Block "U" Rwagasore Street within the City and Region of Mwanza (the suit Property) and substituted it with a decree in effect that she was the lawful purchaser of the same subject to payment to the‘applicant of Tanzania Shillings 10, 000,000.00 within 60 days from the date thereof. It may perhaps be worthy to note right from the outset that, although the predecessor respondent was alive when the appeal and written submissions in support thereof were being lodged to the Court, she did not live until on the date of judgment as she expired on 3rd May, 2018 while the hearing of the appeal was 19th September, 2019. This fact is the basis of the first two grounds of the application where the decision of the Court is challenged in the first ground that it was made without jurisdiction and in the second ground that, it was procured illegally or by fraud. Yet in the third ground, the decision is challenged for the reason that the applicant was denied a right to be heard in as much as the advocate who argued the appeal had no instructions from the applicant. 2 In the conduct of the application, Mr. Robert Rutaihwa, learned advocate appeared for the applicant. On the other hand, Messers. Elias Hezron and Stephen Makwega, both learned advocates, appeared for the respondent. In his oral arguments, Mr. Rutaihiwa for the applicant just as it was for Mr. Hezron for the respondent, fully adopted the contents of his written submissions with some clarifications. We shall, iri the course of addressing the grounds for review, consider the rival submissions. It is common ground that under section 4(4) of the AJA, the Court enjoys power to review its own decision. The review jurisdiction is, however, limited in scope and is exercised parsimoniously in the most deserving cases. It can only be invoked if any of the grounds set out under rule 66(b), (d) and (e) of the Rules are established. The respective provisions read as follows: "66-(l) The Court may review its own judgment or order, but no application for review shall 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; (b) A party was wrongly deprived of an opportunity to be heard; (c) the court's decision is a nullity; or (d) the court had nojurisdiction to entertain the case; (e) the judgment was procured illegally, or by fraud or perjury." The complaint in the first ground of review is that, the Court acted without jurisdiction. That would fall squirely within the purview of rule 66(1) (d) of the Rules. The submissions for the appellant on this ground is that, the hearing of the appeal much as it was for the delivery of the judgment was made when the predecessor respondent had already expired. It was submitted that the Court had no jurisdiction to entertain an appeal against a dead person. It was further insisted that the Court lacked jurisdiction to entertain an appeal which in view of rule 105 (2) and (3) had already abated as more than twelve months had passed since the death of the predecessor respondent. To cement his view, the counsel cited the authorities in Hossea Kihwelo and 5 Others v. Abdallah Ramadhani Mkumba and Another (Civil Revision No. 347/17 of 2018) [2020] TZCA 549 (30 August 2022) which supports the view that an appeal would abate if no application for a joinder of the legal representative after expiry of twelve months from the date of the death. On top of that, he cited the cases of Lala Wino v. Karatu District Council (Civil Application No. 132/02 of 2018) [2019] TZCA 46 (1 April 2019) and the Director of Public Prosecutions v. Jackson Sifael Mtare and Three Others (Criminal Application No 2 of 2018 ) [2018] TZCA 393 (7 September 2018) to support the view that amendment of the procedural law applies retrospectively. For the respondent, it was submitted, in the first place that, it is wrong to say that the appeal abated since on the date of hearing, the law did not say that the appeal would abate after the lapse of such period. Much as he agrees with the counsel for the applicant that an amendment of a procedural law applies retrospectively, it was his view that, the rule as to retrospective effect of the amendment of procedural law is not absolute. He clarified that, where good reason to the contrary existed, the principle would not apply. Reference was made to the case of Henry Lubinza (the Administrator of the Estate of the late Mathias Njile Bubinza v. Agriculture Inputs Trust Fund & Others [2020] T.L.R. 375. In the alternative, it was submitted, since under rule 106(12) of the Rules an appeal is deemed argued if a party who has filed written submissions does not appear, the absence of the appellant on the date of hearing for whatever reason would not render the Court without jurisdiction to entertain the appeal. This issue needs not consume much of our precious time. As we said above, the ground is premised on item (d) of rule 66(1) of the Rules. Under the respective provision, the Court may review its decision if only the subject of the decision was not within its jurisdiction. The jurisdiction of the Court is conferred by the Constitution and the AJA. It is mainly to decide appeals from decisions of the High Court and subordinate courts with extended jurisdiction. The appeal before the Court was against the decision of the High Court. It is not in dispute that it was filed by the predecessor respondent through his counsel. Equally so for the written submissions. The error complained of is that, the hearing of the appeal continued notwithstanding the death of the predecessor respondent and ultimately, the judgment in his favour pronounced without the name of the legal representative being joined. Much as we agree with the counsel for the respondent that, under rule 105 (2) of the Rules, the name of the legal representative should have been joined in the place of the predecessor respondent, it is our view that, the omission would only render the proceedings during actual hearing of the appeal irregular. That is what we said in the case of Florian Pantaleo Mtui v. Robert Inyasi Minja (Civil Appeal No. 420 of 2021) [2023] TZCA 17728 (15 October 2023). The issue of jurisdiction, therefore, does not arise because Court's jurisdiction is not excluded for mere reason that the proceedings befdrei it is defective or irtegular however serious the irregularity or defectiveness may be. Otherwise, courts would have not enjoyed the inherent powers to order correction or amendment of defects in the proceedings. It is on that account that we find the first ground of review misplaced and it is hereby dismissed. This now takes us to the second ground of review which asserts that the judgment of the Court was procured illegally and/ or fraudulently. The essence of the contention according to the submissions by the learned counsel for the applicant is that, hearing of the appeal took place while the predecessor respondent had already expired and without there being an order joining the legal representative. It was submitted further that, at the time of the hearing, the successor respondent had already been appointed administrator of the deceased estate. It was contended, therefore that, the successor respondent for not disclosing the fact and proceeding through his counsel with the hearing of the appeal, concealed the fact, something which amounts to fraudulent and/ or illegal procurement of the judgment. For the respondent, it was in the first place denied that the counsel for the respondent was aware of the death as the successor respondent has expressed in his affidavit in reply that there was lack of communication between him and his counsel. He submitted, therefore that, in the absence of evidence to strictly prove the alleged fraud or illegality, such an allegation cannot stand to reverse the decision of the Court. The counsel referred us to the decisions in Ratilal Gordhanbhai Patel v. Lalji Makani [1957] E.A. 314 and Twazihirwa Abraham Mgema v. James Christian Basil, (Civil Appeal No. 229 of 2018) [2022] TZCA 91 (2 March, 2022) in support of the proposition that an allegation of fraud must be proved strictly and the standard of proof thereof should be above that of balance of probabilities. Let us start our discussion on this issue by saying that; when a judgment is procured illegally or by fraud is not express in the Rules. In Sabato Thabit & Another v. R (Criminal Application No. 17/04 of 2020) [2021] TZCA 429 (27 August 2021), however, the phrase judgment procured illegally was interpreted to mean "a judgment that was obtained In a way or manner that is contrary or forbidden by lari'. We would in the same way, take the phrase "procured fraudulently" to mean that a judgment was obtained fraudulently or by deception. We agree with Mr. Rutaihiwa that, in deciding whether a judgment was procured illegally or fraudulently, the focus should not be on the merit of the decision itself but as we held in Abdallah A. Mohamed & Others v. the Attorney General and Another (Civil Application No. 350/01 of 2022) [2022] TZCA 758 (30 November 2022) "on the alleged illegality in the steps that culminated in die judgment being given or madd'. In other words, the alleged illegality or fraud as the case may be, should not be treated as a mere procedural application but a cause of action in its own right which relates to the conduct of the earlier proceedings, with fraud being the sole issue to be resolved. In accordance with a decision of the England and Wales Court of Appeal in Tinkler v. Esken Ltd [2023] EWCA 1375 Civil 655, for one to succeed in an action to set aside a judgment on the grounds that it was procured fraudulently, three elements must be established. One, the successful party must commit conscious and deliberate dishonesty; Two, the dishonest conduct must be material to the original decision; and Three, there must be new evidence before the Court to establish the alleged dishonesty. We are highly persuaded by the above opinion and we take it as a correct and relevant principle of law. We would add that, the tests can analogously apply in proof of allegation that a judgment has been procured illegally. In all cases, as it is the principle in Ratilal Gordhanbhai Patel v. Lalji Makani {supra), the allegation must be proved strictly and the standard of proof being above the balance of probabilities. The basis of the alleged dishonesty according to the affidavit is that, the successor respondent did not inform the Court of the death of the deceased when the matter came for hearing despite that he had been, since the trial, acting as an attorney of the predecessor respondent. The oral arguments of the appeal, it is not in dispute, was made by the advocate and not the predecessor respondent personally. There is no claim in the affidavit that, the advocate was aware of the death of the predecessor respondent. In his affidavit in reply, the successor respondent deposed that, due to confusion arising from the death of his mother (the predecessor respondent), it escaped his mind that he was required to convey such information to the advocate. It was not until after the pronouncement of the judgment that he noticed about the omission and more particularly, after he had been informed by the advocate of the outcome of the decision and requested to notify the predecessor respondent thereabouts. In the circumstances, we think, the deposition in the affidavit does hot strictly provie conscious and deliberate dishonesty on the part of the respondent and his counsel in taking conduct of the appeal subsequent upon the death of the predecessor respondent without causing entry of the name of the legal representative. On that account, we hold that the first and third elements have not been established. We proceed to consider the claim in line with the second element as to whether or not the alleged fraud was material to the original judgment. As held in Tinkler v. Esken Ltd (supra), for the application to pass the test, the dishonest conduct or omission, must be " an operative cause of the court's decision to give judgment in the way it did." This means, in our view that, the court would but for the dishonest conduct or omission not reached to such a decision. 11 In this case, the alleged dishonesty is continuation of the hearing of the appeal without informing the Court of the death of the deceased respondent and without causing the name of the legal representative to be joined in the place of the deceased respondent. Much as we agree with the counsel for the applicant that in accordance with rule 105 (2) of the Rules, the legal representative was obliged to apply to be joined as a successor appellant, we do not think that, the decision would have been different had the legal representative been joined in the place of the deceased respondent. In our view, the entry of the name of the legal representative in the record would only change the title of the judgment but the contents and decision thereof in as long as it was based on the evidence on the record and submissions, would remain the same. In our judgment, therefore, the omission to apply for entry of the name of the legal representative of the deceased much as it was an irregularity, it cannot render the judgment of the Court illegally or fraudulently procured as it is in the principle in Abdallah A. Mohamed (supra) and Tinkler v. Esken {supra). On that account, we think, the ground has no merit and it is dismissed. We proceed with the third ground where the decision is challenged on account that the appellant was denied a right to be heard in that; the advocate who argued the appeal, Mr. Mollahan Barnabas Kabonde and the one who drew the written submissions, had no instructions from the applicant. In accordance with paragraphs 14 and 15 of the affidavit, the deponent of the affidavit became aware of the fact as he was preparing an application for extension of time to apply for review. The counsel for the applicant suggests in his submissions that the instruction to pursue the appeal was personal to advocate Magoiga. In the judgment, however, it is express that the applicant had been since trial, represented by Kabonde and Magoiga Law Firm (advocate) and not an individual advocate from the Firm. This is clearly indicated also in the notice of address annexed in the affidavit in reply. It would appear not to be in dispute according to the affidavit and its annexures that the advocate who took the conduct of the appeal at the hearing was, at the material time, coming from the same law firm. Equally so for the advocate who drew the written submissions. There being no evidence of a notice of change of advocates in the affidavit, the applicant cannot be heard at this stage complaining that he was denied a right to be heard for the reason that 13 the said two advocates had no instructions. On that account, we dismiss the third ground of review for lacking merit. In the final result and for the foregoing reasons, we find the application devoid of any merit and it is hereby dismissed with costs. DATED at MWANZA this 05th day of June, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 6th day of June, 2024 in the presence of Mr. Stephen Emmanuel Makwega, learned counsel for the Respondent and holding brief for Mr. Robert Rutaihwa, learned counsel of the Applicant, is hereby certified as a true copy of the original. 14