Judgement Civ

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI REVIEW NO. 16352 OF 2024. (Arising from Land Appeal No.38 of 2023 in the High court of Tanzania Manyara Sub Registry at Babati, Original Land Application No 20 of 2022 before Kiteto District Land and Housing Tribunal). THERESIA THOMAS..................................................... APPLICANT VERSUS SALOME PHILEMON BILIA (The Administratrix of the Late Tito Jacob Babu)..................... RESPONDENT JUDGMENT 24th October & 6th November, 2024 Kahyoza, J.: Before this Court is an application for review of its decision delivered on 20th May,2024. The application was instituted by lodging a memorandum of review containing five grounds on 10th July, 2024. Salome Philemon Bilia (the Administratrix of the Late Tito Jacob Babu) successfully sued Theresia Thomas before district land and housing tribunal ( the tribunal). Aggrieved, Theresia Thomas appealed to this Court and lost. Still dissatisfied, Theresia Thomas instituted the application for review seeking this Court to review its decision on five grounds, one, that, this Court erred to uphold the decision of the tribunal, which was marred with material irregularity as the tribunal relied on weak evidence to decide in favour of the respondent; two, that tribunal decided the case prematurely 1 without considering the evidence of in the probate case; three, that the applicant before she sued the respondent she sued one Abdulkarim who teamed up with the respondent to deny the applicant possession of the land in dispute; four, that the respondent adduced forged family meeting minutes, which the tribunal admitted despite strong objection from the applicant; and five, that the Court reviews its decision. She prayed the application for review to be granted and decision given in her favour. The application was heard by written submissions and both parties filed their submissions as directed by the Court. Before I consider the application on merit, I find it pertinent to state the legal position regarding an application for review. The law that is Order XLII, rule 1 (1) (a) of the Civil Procedure Code, [Cap. 33 R.E. 2019] ( the CPC) is very explicit that a court can only review its order or decision if any of the following grounds exists- a) There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; or b) There was a mistake or error apparent on the face of the record; or c) There were other sufficient reasons; and 2 d) The application must have been made without undue delay. The apposite issue for determination is whether the applicant has established that there is a mistake or an error on the face of record to warrant an order for review. What amounts to an error on the face of record was discussed by the Court of Appeal of Kenya in Nyamogo and Nyamogo vs Kogo (2001) EA 174. In short it is not every error a court commits while making decision amounts to an error on the face of record. To amount to an error on the face of record it must be an error on substantial point of law and there could reasonably be no two opinions. The Kenya Court held in Nyamogo and Nyamogo vs Kogo (supra) that­ ".... an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an 3 error or wrong view is certainly no ground for a review although it may be for an appeal.” (Emphasis added) It is also in the law that an application for review must be filed without undue delay. Item 3 of Part III of Schedule to the Law of Limitation Act, [Cap. 89 R.E. 2019] provides for time limitation for instituting an application for review under the CPC, which is thirty days. This Court delivered the judgment which the applicant seeks to challenge by review on 20th May,2024. The applicant filed the memorandum of review on 10th July, 2024. It is vital for this Court to consider whether the application was instituted without undue delay. However, since the parties did not address the issue, I will leave the point of time limit at that. Is there reason(s) for this Court to review its decision? Theresia Thomas, the applicant submitted regarding the first ground of review that she acquired the disputed land from Patrick Lema. She also paid transfer fee. Thus, she was of the view that, she was the owner of the suit land and the court acknowledged that fact. The respondent submitted that the applicant did not adduce sufficient reasons for review as to grant review, the applicant must have discovered new evidence or there exists an error apparent on the face of record or there is any available sufficient reason(s). To support her contention, the respondent referred to Order XLII, rule 1 (1) (a) of the CPC. 4 I considered the first ground of review and found it meritless. The applicant did not prove that the tribunal’s decision was based on weak evidence, thus, this Court erred to uphold the decision. Even if the applicant had proved her contention, that error would not have been an error on the face of record by which is sufficient to ground an application for review. The contention that the tribunal relied on the respondent’s weak evidence to arrive at its decision and which this Court upheld was not an error manifesto on the face of record. It could not support an application for review. It was an error which could be established by deep drawn arguments. In Chandrakant Joshubhai Patel Vs The Republic Criminal Application No. 8 of 2002 (CAT - unreported) the Court of Appeal referred to the decision of a Full Bench in Transport Equipment Ltd vs Dervan P. Walambia (Civil Application 18 of 1993) [1994] TZCA 62 (11 March 1994) held that­ "... that the court had the inherent jurisdiction to review its decisions and that it will do so in any of the following circumstances: where there is a manifest error on the face of the record which resulted in miscarriage of justice; where the decision was obtained by fraud; or where a party was wrongly deprived of the opportunity to be heard... ” 5 From the above authority, a court considering to review its decision is not expected to review the evidence on record but the alleged error must manifest itself on the face of record. For that reason, the applicant’s ground of review which calls upon this court to re-examine the evidence cannot support the application. The applicant submitted regarding the second ground of review that decision of the tribunal did not correspond with the evidence on record. She argued that after the death of Tito Jacob Babu, the probate and administration case was opened and that the respondent has not closed it. She added that the disputed property was neither the deceased’s property nor the matrimonial property. I considered the second ground of review where the applicant is seeking to impugn the decision of this court by an applicant of review based on evidence. The applicant’s argument is seeking to impress on this court that the tribunal did not analyze the evidence properly. Failure to analyze the evidence or consider the evidence on record is not an error on the face of record as it is capable of two reasonable opinion. One opinion, supported by the applicant, is that the tribunal did analyze the evidence properly and a second opinion, from the respondent is that the tribunal analyzed the applicant’s evidence and found it not worthwhile. To determine that issue, 6 a court has to examine the evidence on record. If error is “established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record”. For that reason, such an error cannot be the basis for the court to review its own decision. See the decision in Nyamogo and Nyamogo vs Kogo (supra). In another persuasive decision of the High Court of Uganda in Abasi Balinda v Frederick Kangwamu and another [1963] 1 EA 557 (HCU), the court pointed out clearly that a point may be a good ground of appeal but be insufficient to ground an application of review. It held- "A point which may be a good ground of appeal may not be a ground for an application for review and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for an appeal.” I find as held in Abasi Balinda’s case (supra) that erroneous view of evidence of law is not a ground for review. Thus, if the tribunal erred in analyzing the evidence or misconstrued the evidence on record and this court relied on the erroneous view of the tribunal to make its decision, that is not a sufficient ground for review. It amounts to good ground to support an appeal to the Court of Appeal. I, therefore, find no merit in the second ground of review. 7 The applicant seeks to challenge the decision of this Court by way of an application for review in three and four grounds based on evidence on record. She submitted regarding the third ground of review that, the fact that the late Tito Jacob Babu leased the suit land to Abdul Kareem did not make him the owner of the suit land. She added that late Tito Jacob Babu leased the suit land because she consented to the lease agreement. The applicant’s argument implies that the tribunal and this Court misconstrued the evidence on record. Regarding the fourth ground of appeal, the applicant seeks to challenge the decision of this court as the respondent tendered forged family meeting minutes as exhibit. She contended that there was no family meeting held and that despite her strong objection, the court unjustifiably relied on the document. The applicant submitted in detail to impress on this court that the document was forged. I will not reproduce the submission. As shown above, the respondent’s replied generally that the applicant’s ground(s) for review did not pass the test. It is settled that once a court makes a decision and communicates that decision to the parties, that court becomes functus officio, it cannot vary that decision. See Kamundu v. R R (1973) EA 540 the E.A, the Court of Appeal held that- 8 “a court becomes functus officio when it disposes of a case by a verdict of guilty or passing sentence or making some orders finally disposing of the case.”. This Court followed the above position in Bibi Kisoko Medard vs. Minister for Lands Housing and Urban Developments and Another [1983] TLR 250 in which the late Mwakibete J, held that- “in a matter ofjudicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio.” Once a court becomes functus officio, its jurisdiction ceases on the matter. It cannot be called upon to re-consider the evidence and overrule its first decision. A court which has become functus officio may only be invited by way of an application review to reconsider its decision on the ground(s) that there is an error manifesto on its record, upon discovery of new evidence or for any reason sufficient for review. It is obvious that the applicant’s third and fourth grounds of review, which invite this Court to reconsider the evidence on record and re-determinate the appeal are misplaced. I wish to state that this Court became functus officio once it communicated its decision to the parties it can review its decision if there is an error on the face of record, such error as lack of jurisdiction or for having entertained the matter which was obviously out of time. 9 A person applying for review cannot seek to succeed by showing how his or her evidence was heavier than the opponent’s evidence or how the opponent’s evidence was weak. The applicant for review can succeed upon discovery of new evidence which did not exist at the time the matter was heard or he or she court not have discovered after due diligence. In Kenya case of Muyodi v Industrial and Commercial Development Corporation and another [2006] 1 EA 243(CAK), cited by this Court in Mwanaisha Mohamed Ngochele vs Mohamed Salum & Others (Land Case Appeal 99 of 2011) [2012] TZHCLandD 1 (11 December 2012), the Court of Appeal of Kenya held that- "For an application for review ... to succeed, the applicant was obliged to show that there had been discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at that time. Alternatively, he had to show that there was some mistake or error apparent on the face of the record or some other sufficient reason..." The applicant was not entitled to invite this Court to reconsider the evidence on record and review its own decision. Such an invitation is not in the purview of an application for review. The applicant’s third and fourth grounds of review are sufficient grounds for appeal but not review. I do not find any merit in the applicant’s third and fourth grounds of review. 10 The last ground of review is not worth a ground for review as it contains the applicant’s prayers and the applicant did not support it by submission. I will not consider it. In the end, I find that the applicant did not adduce sufficient reason(s) for review. She did not persuade this Court that there exists an error on the face of record or new and important matter or evidence which, after due diligence, was not within her knowledge or could not be produced at that time or some other sufficient reason, for this Court to review its decision. Thus, the application for review is dismissed for want of merit with costs. It is ordered accordingly. Dated at Babati, this 6th day of November, 2024. John R. Kahyoza Judge COURT: Ruling delivered in the absence of the parties duly informed. B/C Mr. Shadrack ( RMA) present. John R. Kahyoza Judge 6.11.2024 11