Pan African Energy Tanzania Limited vs Africa Geophysical Services Limited (Civil Application No. 217 of 2026) [2026] TZCA 464 (30 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KOROSSO. J.A. FIKIRINI. J.A, MWAMPASHI, J.A) CIVIL APPLICATION NO. 217 OF 2026 PAN AFRICAN ENERGY TANZANIA LIMITED .........................APPLICANT VERSUS AFRICA GEOPHYSICAL SERVICES LIM ITED .......................RESPONDENT (Application for Review of the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) f KOROSSO. FIKIRINI. MWAMPASHI JJJ.A) dated the 3rd February, 2026 in Civil Appeal No. 1650 of 2025 RULING OF THE COURT 25th March & 30th April, 2026 FIKIRINI. J.A.: The applicant, Pan African Energy Tanzania Limited moved this Court in terms section 6(4) of the Appellate Jurisdiction Act, Cap. 141, R.E. 2023 (the A]A), and Rules 66(l)(a), 66(l)(b), 66(l)(d), and 66(6) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), seeking a review of the Court's decision in Civil Appeal No. 1650 of 2025, delivered on 3rd February, 2026. The notice of motion carried the following grounds which are reproduced below thus: - i The decision was based on a m anifest error on the face o f the record resulting in a m iscarriage o f ju stice in that the Court awarded the respondent USD 17,812,445 that the respondent pleaded as operational costs as the am ount she would have earned had the contract perform ed to its com pletion by the respondent delivering to the applicant the agreed am ount o f data, a re lie f which was not pleaded by the respondent and was not provided by the decision o f the High Court in any event and, therefore, falling outside the scope o f the issues before the court. By awarding the respondent the am ount it would have earned had the contract perform ed to its com pletion by the respondent delivering to the applicant the agreed am ount o f data(which re lie f was not pleaded), the Court denied the applicant an opportunity to be heard and address the Court on (i) whether the Court has the pow er to substitute the re lie f o f the am ount the respondent would have earned had the contract perform ed to its com pletion by the respondent delivering to the applicant the agreed am ount o f data (which was not pleaded) and (ii) whether the Court sh all award such re lie f in the present case. The Court also com m itted a m anifest error by awarding damages in a m anner that contravenes fundam ental principles o f damages assessm ent By granting the acquisition fee notw ithstanding the respondent's adm itted nonperform ance o f the contract and unilateral suspension o f operations, the Court failed to account for the substantial costs the respondent would have incurred had the contract been perform ed. The award, therefore, places the respondent in a better position than perform ance would have done, resulting in an unjustified windfall. This error was compounded by the Court's decision to grant the re lie f suo motu, w ithout hearing the parties or requiring evidence o f actual loss, causing substantial prejudice to the applicant and constituting a serious m iscarriage o f ju stice warranting review. The Court acted w ithout jurisdiction in awarding the respondent a re lie f that was neither pleaded nor awarded by the High Court and, as a result, fe ll outside the scope o f the issues before the Court. The decision o f the Court is a n u llity in that the Court made it w ithout hearing the applicant on the substituted re lie f and w ithout jurisdiction to substitute the relief. The decision o f the Court was based on a m anifest error on the face o f the record resulting in a m iscarriage o f ju stice in that the Court, after noting that 77 days deadline fo r com pleting the project were counting from the date o f recording the first acceptable shot point which was recorded on 19 July, 2023, the Court interpolated the contract by subsequently holding that where the first acceptable shot point precedes the acceptance o f com plete m obilization, it is the acceptance o f the m obilization that m arks the starting point for reckoning the 77 days fo r com pletion o f the work. A s a result o f the m anifest error on the face o f the record, the court dism issed grounds 2, 3, 4, 5, and 8 o f the appeal. vii. The Court refused to entertain the applicant's appellate challenge to the unpaid production involving the am ount o f USD 913,217.23 by characterizing that ground as abandoned, notw ithstanding that it was expressly advanced in the applicant's written appeal subm issions. By excluding an argued ground from consideration through a m anifest m ischaracterization o f the subm issions, the Court denied the applicant a hearing on a m aterial issue. Instead, it treated those invoices as part o f USD 17,812,445 awarded as the am ount the respondent would have earned had the contract been perform ed to com pletion by delivery o f the agreed data. In doing so, the Court com m itted a m anifest error on the face o f the record and denied the appellant an opportunity to be heard on, and to reduce, the sum s awarded by the am ount o f the unpaid production invoices. The preferred application is supported by an affidavit sworn by Timon Vitalis, learned counsel for the applicant. Conversely, the respondentfiled an affidavit in reply opposing the application. Also 5 written submissions were filed by the respective parties for and against the application on 12th March and 23rd March, 2026. The background to the decision sought to be reviewed traces back to the judgment of the High Court of Tanzania, Commercial Division, Dar es Salaam, in Commercial Case No. 5244 of 2024. In that case, the respondent, Africa Geophysical Services Limited, sued the applicant for unlawful termination of contract. Whereas the applicant filed counterclaim for the total of USD. 5,474,923.00 being specific damages she has suffered due to the respondent's breach of contract. After a full trial, the High Court entered judgment in favour of the respondent, allowing the suit with costs on 7th February, 2025. The applicant's counterclaim was dismissed. Aggrieved by that outcome, the applicant lodged Civil Appeal No. 1650 of 2025 before this Court. Upon determination, the Court allowed the first ground of appeal and partly the seventh ground, but ultimately dismissed the appeal with costs. Still dissatisfied, the applicant has now instituted the present application. In essence, the application is premised on four grounds: 1. That, there was a m anifest error on the face o f the record resulting in a m iscarriage o f ju stice , contrary to Rule 66 (1) (a) o f the Rules. 6 2. That\ there was denial o f naturalju stice to the applicant. 3. That ; the Court exceeded its jurisdiction ; in granting reliefs not pleaded. 4. That, the decision subject o f review is a nullity. The application was scheduled for hearing on 25th March, 2026. At the hearing, the applicant was represented by Mr. John Kamugisha, assisted by Mr. Timon Vitalis and Mr. Audax Vedasto, all learned advocates. The respondent was represented by Mr. Juvenalis Ngowi, learned advocate. Invited to argue the application, Mr. Vitalis adopted the notice of motion, supporting affidavit, and written submissions. He further prayed to abandon the 3rd, 6th, and 7th grounds, opting instead to submit on the 1st, 2nd, 4th, and 5th grounds. These grounds respectively concern: (i) manifest error on the face of the record under Rule 66(1), (ii) denial of the right to be heard, (iii) lack of jurisdiction, and (iv) nullity of the Court's decision. On the first ground that there was manifest error on the face of the record, learned counsel submitted that the Court of Appeal awarded the respondent USD 17,812,445 as the amount she would have earned had the contract not been terminated. He argued that the relief pleaded and canvassed before both the High Court and this Court was confined to operational costs already incurred, not future revenue or loss of earnings. Counsel contended that the High Court had awarded operational costs, but this Court quashed that award on the ground that it was inclusive of the contract price, which had already been paid to the respondent before termination. He referred the Court to page 7 of the judgment, where the respondent prayed for USD 30,000,000 as the contractual price, not operational costs, and further cited pages 7, 9, 11, 44, and 45 of the judgment. It was his submission that granting a relief neither pleaded nor argued constitutes a manifest error apparent on the face of the record. He defined such error as one that is obvious and noticeable upon reading the judgment, citing D.B. Shapriya & Co. Limited & Others v. Kamaka Company Limited & Others, [2025] TZCA 400 and Symbion Power Tanzania Limited v. CRDB Bank PLC, [2024] TZCA 661. He further argued that Rule 38 of the Court of Appeal Rules only empowers the Court to vary relief granted by the lower court, not to grant entirely new reliefs never pleaded. The operational costs 8 disallowed by the Court were inclusive of the amount now awarded, resulting in an award in excess of what was pleaded. In support, he cited P.9219 Abdon Edward Rwegasira v. The Judge Advocate General, [2016] TZCA 969 and First Assurance Company Limited v. Heritage Insurance Company Tanzania Limited, [2025] TZCA 967. The right to be heard, was argued as a second ground. On this Mr. Vita Iis submitted that the record clearly shows the parties never addressed the Court on the respondent's future revenue. Their submissions were confined to operational costs as reflected on pages 8 and 9 of the judgment. As a result, there was miscarriage of justice. The fourth ground was on lack of jurisdiction. The learned counsel argued that a court is bound by the pleadings and has no jurisdiction to grant relief not pleaded. He emphasized that future revenue or loss of earnings is a factual matter requiring specific pleading and proof by evidence. Even on appeal, the Court remains bound by the pleadings. He relied on Lausa Athuman Salum v. Attorney General, [2011] TZCA 374. In light of his submission, he beseeched the Court to review its decision on the highlighted areas. Giving a helping hand, on the fifth ground, Mr. Vedasto argued that only a higher court has jurisdiction to nullify the decision of a lower court. A court cannot nullify its own decision. He submitted that if the present decision were to be declared a nullity, then the High Court's decision would remain intact. Mr. Ngowi, replying to the submission starting with the first ground, submitted that the applicant's contention does not meet the threshold under Rule 66 (1) (a) of the Court of Appeal Rules. He argued that determining the alleged error would require the Court to re-examine the High Court record, which is impermissible in a review application. He cited Chandrankant Joshubhai Patel v. R [2004] T.L.R. 218. Counsel maintained that the judgment clearly indicated that the operational costs awarded by the High Court were inclusive of the contract price. Referring to pages 39-40 and 44 of the judgment, he submitted that such expenses were not payable separately from the contractual sum. He concluded that no error apparent on the face of the record existed, and that the amount awarded had in fact been pleaded. On the second ground, the counsel submitted that the parties were duly afforded an opportunity to be heard on the issue of relief under ground 7 of the memorandum of appeal. The Court merely varied 10 the amount awarded, reducing it from USD 23,656,963 to USD 18,176,023, and finally to USD 17,812,445. Dismissing the contention that there was variation, which amount to denial of the right to be heard. Another ground was on the Court lacking jurisdiction to vary the relief amount. On this fourth ground, Mr. Ngowi submitted that the Court was entitled to re-appraise the evidence. He concluded that the High Court had awarded relief separately as operational costs, which formed part of the contractual amount and not future revenue. He further submitted that under section 6 (2) of the Appellate Jurisdiction Act, the Court of Appeal possesses powers equivalent to those of the High Court when hearing an appeal. He contended that the applicant's grounds amount to an appeal disguised as a review, and that no error apparent on the face of the record had been demonstrated. He therefore prayed that the application be dismissed with costs. Mr. Vitalis reiterated his earlier submissions in rejoinder. He emphasized that the relief awarded by the Court arose from the contract itself and not from the pleadings. He maintained that the operational costs were disallowed precisely because they had already been paid, and that the new relief granted was neither pleaded nor canvassed by ii the parties. He clarified that the complaint was not directed at the quantum awarded, but rather at the nature of the relief. On jurisdiction and re-appraisal of evidence, counsel submitted that while the Court may re-appraise evidence, it can only do so in respect of matters properly pleaded. Having carefully considered the rival submissions in light of the affidavits filed in support and opposition to the application, the central issue is whether the grounds raised by the applicant fall within the limited scope of review. Section 4 (4) of the Appellate Jurisdiction Act, Rule 66 (1) of the Rules, and numerous decisions of this Court have consistently settled that the Court's power to review its own decisions is narrowly circumscribed. It may only be exercised where it is apparent that:- 1. There exists a m anifest error on the face o f the record resulting in a m iscarriage o f justice. In such cases, the applicant m ust dem onstrate both the existence o f the error and the injustice occasioned thereby. 2. The im pugned decision was obtained by fraud. 3. The applicant was wrongly deprived o f the righ t to be heard. 4. The Court acted withoutjurisdiction. There is plethora of decisions on that including Lakhamshi Brothers Limited v. R. Raja Sons [1966] E.A. 313; Tanganyika Land Agency Limited & 7 Others v. Manohar Lai Aggrawal, Civil Application No. 17 of 2008; Omari Mussa @ Selemani @ Akwisha & Others v. R, [2019] T7CA 378; Director, Tanga Cement Company Limited v. Ephraim Joram, [2024] TZCA, at pp. 11, 13, and 15) to list a few. Turning to the first ground, the applicant alleged that the impugned judgment contained a manifest error on the face of the record, in that the Court awarded the respondent USD 17,812,445. representing earnings, the respondent would have accrued upon completion of the contract, a relief not pleaded. While the applicant insists this constitutes an apparent error on the face of the record, upon close examination of the impugned judgment it is evident that the applicant seeks to transform this Court into an appellate forum against its own decision. This is contrary to the essence of Rule 66(1). Entertaining such a ground would require the Court to revisit pleadings to ascertain the reliefs pleaded vis-a-vis those granted, which falls outside the purview of section 4(4) of the Appellate Jurisdiction Act and 13 Rule 66(1) of the Rules. See: Chandrankant Joshubhai Patel v. R (supra) and Maulid Juma Bakari @ Dam Mbaya v. R, [2021] TZCA 334. On the second ground, relating to denial of the right to be heard, the applicant contended that the Court substituted the relief of operational costs wrongly awarded by the High Court with future earnings, without affording the parties an opportunity to address the issue. The right to be heard is a fundamental principle enshrined in Article 13(6)(a) of the Constitution. In Golden Globe International Services Ltd & Another v. Millcom Tanzania N.V & Others, [2020] TZCA 348, the Court underscored the centrality of this principle, observing that it is so basic that even God did not punish Adam and Eve before hearing each of them. Our reading of the impugned decision, it is evident that the Court awarded the respondent USD 17,812,445 as operational costs after hearing submissions from both parties on ground one of the appeal, which concerned breach of contract by the applicant. The record at pages. 23-26 of the impugned judgment shows that the applicant was afforded an opportunity to address the relief complained of under that 14 ground. Accordingly, the contention that the applicant was denied the right to be heard is without merit. Conning to the issue of jurisdiction, the applicant argued that the Court acted without jurisdiction in awarding relief not pleaded or granted by the High Court. This ground is overly general and, in substance, invites the Court to revisit the evidence adduced at trial as though sitting in appeal against its own decision. Such an exercise would require examination of extraneous materials beyond the judgment under review, which is impermissible under Rule 66(1). Review is confined strictly to the Court's own judgment or order, not the underlying trial record. As stated in Maulid Juma Bakari @ Dam Mbaya v. R, (supra), that:- "Issues regarding the evidence o f witnesses cannot be raised as grounds for review as they w ill require going back to the record to re evaluate what they said, a process which does not fa il under the confines o f Rule 66(1) o f the Rules ." The contention that the Court's decision is a nullity for want of jurisdiction and denial of hearing, was already addressed in the discussion of grounds two and four. It is similarly without merit. In sum, the application fails for the following reasons: one, there is no apparent error on the face of the impugned judgment has been demonstrated to warrant review, two, the applicant's arguments amount to an invitation for the Court to rehear and re-examine the appeal, contrary to Rule 66 (1) (a), three, the applicant was fully afforded the right to be heard, as reflected in the record. From the deliberations above, we find no merit in the application. Consequently, we dismiss it with costs. It is so ordered. DATED at DODOMA this 30th day of April, 2026. W. B. KOROSSO JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Ruling delivered virtually this 30th day of April, 2026 in the presence of Mr. Timon Vitalis, learned counsel for the Applicant, Mr. Juvenalis Ngowi, learned counsel for the Respondent and Mr. Leopord Mabugo, Court Clerk is hereby certified as a true copy of the original.