MISC

IN THE HIGH COURT OF TANZANIA

MUSOMA SUB REGISTRY

AT MUSOMA MISC. CIVIL APPLICATION NO. 000015686 of 2024 REFERENCE NO. 202407021000015686 (Arising from Misc. Civil Application No. 06 of2022 of High Court of Tanzania — Musoma Sub Registry) YAKOBO RYOBAIRONDO.......................................... APPLICANT

VERSUS MANYAKI BHOKE JOKIHINDA......................................... RESPONDENT

RULING 11th & 24th September, 2024 M. L. KOMBA, J.: Applicant above mentioned applied for Review of the decision of this court in Misc Civil Application No. 06 of 2022 in which he applied for certification of points of law as the legal requirement for the matter originating from Primary Court and if there is desire to appeal to the Court of Appeal of Tanzania. High Court found there was no points worth to be forwarded to the Court of Appeal hence dismissed the application. The Applicant timeously lodged application for Revision No. 723/8/2023 to Court of Appeal on 31 July 2023 which was later on 25th April 2024 withdrawn Page 1 of 9 hence the current application which was lodged on 29 April 2024 with six (6) reasons for review as follows; 1. That, the court erred in the record by raising point of Law Suo motto regarding competence of the application during composition of the Ruling without inviting neither of the parties to address it 2, That, there is manifest error on the face of the record that the Hon, Judge in determining the matter when found that the application was not worth for determination as affidavit was crafted referring trial court and not High Court as second Appellate Court, 3. That, there is impropriety in the manner of determine the application before it as was incompetent as court was not moved property to grant what was asked for as the same was referring to trial court.

4. That, there is apparent error on the face of the record regarding the manner on how the court arrived into its decision by dismissing it instead of striking out as the application before it was not worth for determination by the court.

5. That, there is error on the record as the applicant was deprived the right to be heard when the court found during composing the ruling that the application was not crafted in such way to give the court power andjurisdiction to determine the application.

6. That, there is error on the face of record and the manner on how the court reached its decision Page 2 of 9 During the hearing of the application, the applicant was represented by Mr. Innocent Kisigiro while the respondent had a legal service of Mr. Juma David Mwita, both are learned advocates. Submitting for the review, Mr. Kisigiro combined 1st, 2nd, 3rd, 5th and 6th reasons for review and complained on how this court reached its decision without hearing parties properly. While he agree that parties had time to address this court on application before its dismissal, he pointed page 8 of the ruling and complained that when Hon Judge analysed if there is reasonable reasons or any points worth certifying, Hon Judge based on the way reasons were crafted and concluded that, reasons listed are not the points that this court can certify as points worth to be determined by the Court of Appeal on reason that, the points were referring the trial court while the High court is supposed to certify points raised during appeal at its level. At that point he insisted applicant was not heard as High Court did not invite parties to address on the anomaly found at the time of composing ruling. Mr. Kisigiro insisted that if parties could have time to address court there was possibility that Hon Judge would have reached to different verdict and supplied me with the decision of Kumbwandumi

Ndemfoo Ndosi vs Mtei Bus Service Limited Civil Appeal No. 257 of 2018 specifically Page 3 of 9 at page 3 that right to be heard is a fundamental right as per Constitution of URT of 1977. He also cited Harsh Energy T Ltd vs Hamis Maganga Civil Application No. 200/16 of 2020 that right to be heard must be considered while making decision. He prayed this court to re-visit its decision where it will note that parties were not heard and allow the application. Submitting on the 4th ground about dismiss instead of struck out, counsel for the applicant said if the court find the affidavit does not have grounds which reflects what was decided by the High Court, that means, there was nothing for it to determine and the court ought to have struck out the matter as application was not properly before the court. It was his position that by dismissing it, this court block the applicant to pursue his right as there is no further appeal. He urges me to read Ngoni Matengo vs Ally Mohamed Othman EACA 1959 at page 577 (iii) and insisted that when an appeal is not properly constituted the court ought to strike it out instead of dismissing it. In the case at hand he said so far as affidavit was not proper the remedy was supposed to be struck out. He prays this court to reverse its decision and allow parties to be heard on the issue raised by court. Page 4 of 9 Replying, in the joined ground Mr.

Mwita submitted that both parties were heard and counsels had sufficient time to address the court. It was his assertion that parties can be resummoned to address the court in an instancy where a court has raised an issue suo-motto, if there was no suo motto issues then that opportunity cannot be offered to parties, he insisted. He supported his submission by Kumbwandumi Ndemfoo Ndosi vs Mtei Bus Service (supra). Analysing his submission, he condemned the applicant for not knowing what was supposed to be filed to the High Court at that stage. To him, ignorance cannot be cured by applying for review as applicant is an advocate who ought have to know that in certification of point of law he was duty bound to show the High Court errors and not errors committed by trial court. He went on submitting that the High Court write its decision by reason and it is reasoning that was misconceived by applicant and think was a new issue raised by a court while was not. Mr. Mwita said the ground for review is only two; that decision was based on a manifest error on face of the record resulting in discourage of justice and second; a party is wrongly depriving an opportunity to be heard. It was his submission that the applicant has not shown any manifest error on face of the record on decision he is trying to challenge Page 5 of 9 and his averments remain to be afterthought. Counsel went

on submitting that in reaching its decision the court has to reason as to why such decision and that reasoning cannot be termed as matter raised by the court. He supplied me with the decision on Maulid Juma Bakari vs Republic, Criminal Application No. 63 of 2020 and prayed this court to find the combined grounds of application for review to be baseless and lack merit. On the 4th ground he submitted that the court was right to dismiss the application because the case was heard and both parties submitted. The application was properly constituted before the court and after heard both parties,' court found the remedy was to dismiss the application. Counsel for respondent insisted that there was no procedural errors as application was properly before the court. He went on submitting that the court cannot be mistaken on the submission of the parties, neither the court cannot be blamed where the party did not know what to address the court. Counsel distinguished the case of Ngoni Matengo vs Ally Mohamed Othman (supra) as facts are different because in the case at hand procedure was adhered. Page 6 of 9 During rejoinder Mr. Kisigiro submitted that pleadings may be filed with defect and the defect is not an ignorance but it happens when the word skipped mind and that is a defect. He insisted that there was error on face of record that resulted to miscarriage of justice. I called upon to

review the decision of this court as narrated. From submission of parties the issue is whether the application for review was placed squarely as per law. First it is important to known when review is done. Basing on Maulid Juma Bakari vs Republic (supra) it is done when there is error on face of the record and the purpose of review is to address irregularities of a decision which have caused injustice to a party. It is not an appeal avenue open to the unsatisfied party with the decision of the Court. See Charles Barnabas vs Republic, Criminal Application No. 13 of 2009 (unreported). Mr. Kisigiro complained that parties made submission and court prepared a ruling but in its ruling this court in Misc Civil Application No. 06 of 2022 raised an issue suo motto and its decision based on that issue raised without giving parties right to submit on raised issue. I read the ruling and find this court while analysing the application for certification noted the points listed were from the trial court and not the High court. What was found at page 7 of this court ruling is; Page 7 of 9 7 have gone through the affidavit of the applicant and his submission; I have not been able to know what exactly are the said points of law worth determinable by the court of appeal that this court should certify for consideration. I had expected that the applicant should have elaborated what those said to

be points of law are reflected into the verdict by this court (appellate court). In my understanding of the law, the jurisdiction of the court of appeal on matters originating from primary courts are on legal errors omitted or committed by the high court and not by the trial court.' The massage and analysis of this court was that, what is certified to be a point of law worth determinable by the court of appeal is an error subsequently committed by the High Court. In this analysis I find no new issue which was complained to be raised suo motto because points for certification was listed by applicant and were argued by both counsel. Points were found to have no qualities to be certified. That is a decision and it cannot be said is an error on face of record. As submitted by counsel for the respondent, in simple language applicant failed to move this court by raising points worth to be forwarded to the higher court. Both parties had utilized rights to be heard and court made decision. I find the combined grounds for review are of less weight. The second point was ground no 4 where Mr. Kisigiro complained of the dismissal of the application. I find the matter was heard as both parties submitted and court finds there is no points to certify, not that the Page 8 of 9 matter was wrongly filed. While I subscribe to the decision in Ngoni Matengo vs Ally Mohamed Othman (supra) but the

circumstance is different form the case at hand where the application was properly filed but there was no point worth to certify just as argued by counsel for the respondent. Under this circumstance remedy was not struck out rather, dismissal as was done. I find no merit in this application and I hereby dismiss. No order as to costs. DATED at MUSOMA this 24th day of September, 2024. kkk M. L. KOMBA Judge Page 9 of 9