ABSA Bank Tanzania Limited & Another vs Hjordis Fammestad (Civil Review Application No. 1633 of 2024) [2026] TZCA 307 (13 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWARIJA, J.A.. KENTE 3.A. And MGONYA, J.AJ CIVIL REVIEW APPLICATION NO. 1633 OF 2024 ABSA BANK TANZANIA LIMITED JOSEPH JOHN NANYARO .......... ,1 st APPLICANT 2 nd APPLICANT VERSUS HJORDIS FAMMESTAD RESPONDENT (Application for review from the decision of the Court of Appeal of Tanzania MGONYA, J.A.: This application which was brought by way of by a notice of motion is predicated under rules 66 (1) (a), 66(2), 66(3) and 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It seeks to review the decision of this Court (Mwarija, Levira, and Masoud, JJ.A), dated 12th December, 2024, in Civil Appeal No. 30 of 2020. The application is supported by an affidavit sworn by Dotto Kahabi, head of legal and Company Secretary of the 1s t applicant. On the other hand, the respondent resisted the application by filing an affidavit in reply sworn by Mr. Salumu Juma Mushi, learned at Arusha) (Mwariia. Levira. And Masoud. JJJ.A) dated the 12th December, 2024. in Civil Appeal No. 30 of 2020 RULING OF THE COURT 2n d December, 2025 & 13th March , 2026 advocate. i

The application has its roots in the decision of the High Court of Tanzania, Commercial Division at Arusha in Commercial Case No. 06 of 2018, wherein the respondent had sued the applicants for unlawful withdrawal of money from a Bank Account No. 7000070 owned by the respondent. At the end, the trial court entered judgment partly in his favour. Aggrieved by the High Court decision, the applicants appealed to this Court vide Civil Appeal No. 30 of 2020, which was followed by a cross appeal filed by the respondent. However, the determination of both the appeal and cross appeal was impossible due to incompetence, as the appeal was found to be time-barred, while the cross appeal was struck out for want of a complete record of appeal. Still aggrieved, the applicants have thus filed the instant application seeking the Court to review its decision. The notice of motion is predicated on the following four grounds: i) That as per the handwritten and typed proceedings, the testimony o f PW1 one Hjordis Fammestad (Page 488 o f the record) and DW3 one Iman Gratian (Page 522 o f the record) was received without Oath nor affirmation contrary to mandatory provisions o f the law; ii) The point o f review revolves around the fact that the notice o f Preliminary objection lodged on 2@h January, 2023 and argued 2

in Court on 9 h July , ; 2024 was not about incompleteness o f record o f appeal but rather, illegality apparent on the face of recordthat is, the reception o f testimonies o f PW1 and DW3 without oath or affirmation; iii) Since there is illegality apparent on the face o f the official record (certified handwritten and written proceedings), the practice of the Court has been to exercise its powers o f Revision vested in the Court by Section 4(2) o f the Appellate Jurisdiction Act, (Cap. 141R. £ 2019) (theAJA) to quash the proceedings and set aside the Judgment and decree; and iv) Since the decision o f the Court was based on a manifest error on the face o f the record that resulted in the miscarriage of justice, the Court is moved to review its decision to strike out invalid record o f appeal and in lieu thereto exercise its powers o f revision vested in the Court by section 4(2) o f the Appellate Jurisdiction Act and quash the proceedings, setting aside the Judgment and decree in Commercial Case No. 6 o f 2018 and remit the record back to the High Court for the dispute to be tried de novo. At the hearing of the application, Dr. Onesmo Michael Kyauke, who held a brief with instructions to proceed for Mr. Kamala, learned counsel, 3

represented the 1s t applicant, while he also appeared for the 2n d applicant. The respondent had the services of Mr. Salim Juma Mushi, learned counsel. Arguing in support of the application, Dr. Kyauke began by adopting the joint written submissions in respect of this application for review. In the written submissions, the applicants' counsel highlighted three grounds for review. However, on all grounds, the applicants' arguments centered on the reception of the testimonies of PW1 and DW3 without oath or affirmation. He submitted that there is an illegality on the face of the record to the effect that the testimony of PW1 and DW3 was received without oath/affirmation contrary to the law. Dr. Kyauke stressed that both the handwritten proceedings and typed proceedings in the record show the above illegality. That, upon noting the said illegality, the respondent prayed for leave to file a supplementary record to bring an electronic record of the Commercial Court to cure the defect. However, the respondent did not comply with the court order to bring the transcript. Further, Dr. Kyauke submitted that it has been the practice that when there is an illegality, the Court is obliged to take the matter under section 4(2) of the Appellate Jurisdiction Act (ADA) to quash the proceedings. In his submission, having found that the proceedings were tainted with illegality and that the supplementary record was not filed, in hearing of the appeal, instead of striking out the appeal, the Court had to exercise its powers to

cure the defect and proceeded to hear the matter. To fortify his submissions, he cited several authorities, including Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase (Civil Appeal No. 257 of 2020) [2020] TZCA 1890; Joseph Elisha v. Tanzania Postal Bank (Civil Appeal No. 157 of 2019) [2021] TZCA 518; Nestory Simchimba v. Republic (Criminal Appeal 454 of 2017) [2020] TZCA 155; Hamis Chuma @ Hando Mhoja v. Republic (Criminal Appeal 36 of 2018) [2021] TZCA 395; and Commissioner General of TRA v. JSC Atomredmet Zoloto (ARMZ) Consolidated Appeals No. 78 and 79 of 2018 (unreported). Finally, Dr. Kyauke urged us to grant the application. In reply, Mr. Mushi at the ver/ outset made it clear that he was not supporting the application. Having adopted the affidavit in reply he had earlier filed, the learned counsel argued that this application is an appeal through the back door. That the substance of his written submissions is to the effect that, under the law, the Court will only entertain an application for review if it falls within the grounds stipulated under rule 66(1) of the Rules. He argued that in the notice of motion, the applicants have advanced only one ground for this Court to review its decision: that the decision of the Court was based on a manifest error on the face of the record that resulted in the miscarriage of justice. That the said error was elaborated in two 5

points. Firstly, the notice of preliminary objection lodged on the 26thJanuary, 2023 and argued in Court on the 9th July, 2024, was not about incompleteness of the record of appeal but rather illegality apparent on the face of the record. The second point is the failure of the Court to exercise its revisional powers under section 4(2) of the AJA after concluding that there was an omission to administer oath. Responding to the two areas pointed out by the applicants, Mr, Mushi contended that the preliminary objection was argued on 9th July, 2024 and the decision was rendered on 28th August, 2024. In his argument, in the event the applicants were dissatisfied with the decision and intended to seek review against the order emanating from the hearing, they were supposed to bring their application within sixty days from the date of the ruling in accordance with Rule 66(3) of the Rules. He argued that the ruling stating that the records were incomplete and granting an opportunity for the respondent to file supplementary records was delivered on 28th August, 2024. The application for review was filed on the 31s t December, 2024; more than sixty-four days had passed. According to Mr. Mushi, this ground is time- barred and should be dismissed. Proceeding to the second ground of appeal, Mr. Mushi submitted that the core issue before the Court was whether the proceedings in support of the appeal had been compiled and served in compliance with the law and 6

pursuant to the Court's order dated 28th August, 2025. He pointed out that this very issue formed the foundation of the respondents' preliminary objection raised on 3rd December, 2024, in respect of which the Court held that the records were not prepared and issued in accordance with the law. Consequently, the cross-appeal was premised on incomplete records, leading to its being struck out. Mr. Mushi further contended that the applicants were obliged to demonstrate specifically the manifest error apparent on the face of the record, rather than merely reiterating submissions advanced during the hearing of the cross-appeal. In his submission, the instant application effectively seeks to transform this Court into a further appellate forum, arising solely from the applicants’ dissatisfaction with the earlier appellate decision. In support of these submissions, he relied on the authority of James Shadrack Mkungirwa & Another v. The Republic (Criminal Application No. 1 of 2012) [2013] TZCA 2345. Mr. Mushi further submitted that the applicants’ complaint on the failure of the Court to exercise revisional powers under 4(2) of the AJA, after finding that the competent witness did not take an oath, is not a ground for review. He contended that the issue of reception of testimonies and taking oaths was not discussed in the decision of the Court upon appeal. The

learned counsel stressed that, in an application for review, the term error manifest on the face of the record means only the error found in the judgment or order. To buttress his argument, he referred us to the case of Jinta Lusagalu v. Republic (Criminal Application No. 49/08 of 2020) [2024] TZCA 471. The learned counsel further contended that the applicants have failed to show how their grounds for review fit within the grounds stipulated under Rule 66(1) of the Rules as emphasized in the case of Prosper Joseph Msele v. AMI Tanzania, Civil Application No. 32/01 of 2022 [2023] TZCA 17592. Premising on what he submitted, he urged us to dismiss the application with costs, as the applicants have failed to demonstrate an error manifest on the face of the record. Having heard the arguments advanced by the counsel for the parties for and against the application and also having examined the grounds for review as listed in the notice of motion and the supporting affidavits as well as the lists of authorities, we are of the view that, under the circumstances of this application, the issue for our determination is; whether the grounds raised by the applicants in the notice of motion and amplified in the supporting affidavit, justify the review of the Court's decision under rule 66(1) of the Rules. s

Essentially, the Court's power to revise its own decision is explicitly conferred by section 4(4) of the AJA. However, such power is exercised sparingly and only under strictly limited circumstances to prevent endless litigation and ensure finality in judgments. This Court in its several decisions has repeatedly invoked a principle that "no judgment attains perfection, but review is exceptional in order to uphold the doctrine of finality." See, for instance, TANCOAL Energy Limited v. National Bank of Commerce (Civil Application No. 12 of 2022) [2023] TZCA 45; Lyamuya Construction Co. Ltd v. Board of Trustees of NCCIRR (Civil Appeal No. 45 of 2010) [2012] TZCA 12; and John Ngonda v. Republic (Criminal Application No. 13 of 2024) [2025] TZCA 1187, to mention a few. The grounds upon which the Court may review its own decision are limited to five grounds only as stipulated under rule 66(l)(a) to (e) of the Rules. For clarity, we find it apposite to reproduce rule 66(1) of the Rules as hereunder: "66(1) The Court may review its 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 f justice; (b) a party was wrongly deprived o f an

opportunity to be heard; (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," Looking at the notice of motion and supporting affidavit and even considering the arguments by Dr. Kyauke, in expounding the grounds for review, he narrated at length what occurred during trial and appeal. However, having keenly scrutinized the same, we find that the applicants' complaint is centered on a contention that there is manifest error on the face of the record that resulted in a miscarriage of justice. On what was the said error apparent on the face of the record, he maintained that two witnesses were not sworn or affirmed and that the Court erred in not invoking section 4(2) of the AJA, to cure the alleged omission. According to Dr. Kyauke, the Court should quash the lower court's decision rather than strike out the cross-appeal. It is settled that an error apparent on the face of the record as provided under rule 66(l)(a) of the rules must be a clear error apparent from the record itself that leads to an unjust outcome. Those errors are such that they can be seen by one who runs and reads. The Court in the case of 10

Chandrakant Joshubhai Patel v. Republic [2004] T.L.R. 218 stated that: "An error apparent on the face o f the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by long drawn process o f reasoning on points on which there may conceivably be two opinions. A mere error o f law is not a ground for review under this rule. That a decision is erroneous in law is not a ground for ordering review.... It can be said an error that it is apparent on the face o f the record when it is obvious and self evident and does not require an elaborate argument to be established... Likewise, in the case of The Hon. Attorney General v. Mwahezi Mohamed (as Administrator of Estate ofthe late Dolly Maria Eustace) and Three Others, Civil ApplicationNo. 314/12 of2020, the Court held that: "Rule 66(1) o f the Rules is very dear that the Court may review its "judgment" or " order", which means, for the Court to determine [an] application for review all it needs to have before it is the impugned decision and not the evidence adduced during trial or decisions o f subordinate court(s) as submitted by Mr. Malata. We need to emphasize here that the record l i

referred in review is either the "judgment" or "order" subject o f review" See also Lilian Jesus Portes v. Republic (Criminal Application No. 77 of 2020) [2021] TZCA 567 (6 October 2021) and Abdallah A. Mohamed & Others v. The Honourable Attorney General & Others (Civil Application 350 of 2022) [2022] TZCA 758. As we have pointed out above, the applicants' complaint is on the alleged facts that the testimony of PW1, one Hjordis Fammestad, and DW3, one Iman Gratian, was received without oath or affirmation contrary to the mandatory provisions of the law. Also, under item vii of the notice of motion, the applicants complained about the notice of preliminary objection lodged on 26th January, 2023, and argued in Court on 9th July, 2024, that it was not about incompleteness of the record of appeal but rather illegality apparent on the face of the record. Being guided by the position of the law on what kind of error and what record is referred to under rule 66(1) of the Rules, we decline an invitation made by Dr. Kyauke for us to review our decision in Civil Appeal No. 30 of 2020. Applying the position stated in the above-referred decisions to the instant application, we find that the grounds stated by the applicants cannot be attained without cross-checking the lower court record where the witness's testimony was recorded. 12

Equally, Dr. Kyauke faulted the Court for failure to invoke section 4(2) of the AJA to cure the alleged omission, which he also termed it as an error apparent on the face of the record. With due respect, we cannot buy his arguments for the simple reason that his argument intends to raise a ground of appeal through a backdoor. Discussing whether the Court erred in its decision by failure to invoke section 4(2) of the AJA is tantamount to determining an appeal against such a decision, for which we have no jurisdiction. It is a settled principle that a mere dissatisfaction with a Court decision, does not constitute an apparent error on the face of the record. See for instance, the cases of Shadrack Balinago v. Fikiri Mohamed @ Hamza & 2 Others, Civil Application No. 25/8 of 2019, Ansaar Muslim Youth Centre v. Ilela Village Council & Another, Civil Application No. 310/01 of 2021; and Tanganyika Land Agency Limited & 7 Others v. Manohar Lai Aggrwal, Civil Application No. 17 of 2008. In the case of Ansaar Muslim Youth Center (supra), the Court held that: "It is settled that the Court's power to review its own judgment or ruling is limited and thus, a mere disagreement with the finding o f the judgment cannot be a ground for invoking the Court's power to review its decision." Premising on our findings and being guided by the above position, we respond to the above raised issue in the negative, that the grounds stated by the applicants do not justify the review of the Court's decision. The 13

applicants' complaints are wholly premised on the High Court's record and the correctness of the Court's decisions and not an error apparent on the face of the record as provided under rule 66(1) of the Rules. In the circumstances, and for the above given reasons, we find that the application is misconceived and without merit. Consequently, it is hereby dismissed with costs. DATED at DODOMA this 12th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 13thday of March, 2026 via virtual Court, in the presence of Dr. Onesmo Michael Kyauke, learned counsel for 2n d Applicant but also holding brief for Dr. Kamala, learned counsel for the 1s t Applicant, Ms. Agness Dominic, learned counsel for the Respondent and Mr. Issa Issa, Court Clerk; is hereby certified as a true copy of the original. 14