Austack Alphonce Mushi vs Bank of Africa Tanzania Ltd and Another (Civil Application No. 644/06 of 2021) [2022] TZCA 3088 (29 September 2022)

AUSTACK ALPHONCE MUSHI v. BANK OF AFRICA TANZANIA LTD & ANOTHER COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MWAMBEGELE, KOROSSO AND RUMANYIKA, JJ. A) CIVIL APPLICATION NO. 644/06 OF 2021 (Application for review against the decision of the Court of Appeal of Tanzania at Mbeya, dated 25 th day of September, 2021 in Civil Appeal No. 373 of 2020.) Court of Appeal Rules – Review – Grounds for Review – Whether there is a manifest error on the face of the record resulting in the miscarriage of justice. This was an application for review of a decision of the Court of Appeal of Tanzania at Mbeya in Civil Appeal No. 373 of 2020, in which the applicant’s appeal was dismissed for want of merit. In that appeal, the applicant challenged the decision of the High Court at Mbeya in Land Case No. 15 of 2015, where he had sued the respondents seeking a declaration that the intended sale of land on Plot No. 1541, Block M, at Forest Area, and Plot No. 191, Block T, situated in the Mwanjelwa area of Mbeya (the suit land), was premature, as the applicant was engaged in ongoing negotiations to pay the outstanding loan balance. The suit was dismissed for want of locus standi on the part of the applicant. When the application for review was called for hearing, the applicant adopted the notice of motion and the supporting affidavit, while the respondent’s learned advocate opposed the application, despite having failed to duly file an affidavit in reply. The Court granted the respondent leave to address it on points of law only, during which he raised the arguments that the notice of motion and supporting affidavit do not comply with the requirements of Rule 66(1)(a) of the Rules, which include outlining the presence of a manifest error on the face of the judgment sought to be reviewed, resulting in a miscarriage of justice; and that

upon applying the said tests to the instant application, the alleged manifest error cannot be detected on the face of the record as envisaged by Rule 66(1)(a) of the Rules. Therefore, the question for determination before the Court was whether there is a manifest error on the face of the record, as envisaged in Rule 66(1)(a) of the Rules, sufficient to warrant the Court to review its decision. Held: (i) The Court held that an error on the face of the record essentially refers to a plain, obvious, discernible, and substantial error. Upon perusal of the notice of motion and its supporting affidavit, the Court did not find any averment or statement describing or detailing such an error. Since the notice of motion did not expound on any apparent error, the applicant merely expressed dissatisfaction with the Court’s previous holding. (ii) Having found that the applicant failed to establish any apparent error in the impugned judgment, the Court concluded that there was no basis to exercise its review mandate. The application was found to be without merit and is hereby dismissed with costs. Case Laws referred to: (i) Shami Shaha v. Ibrahim Haji Selemani and 2 Others, Civil Application No. 163/17 of 2019 (unreported). (ii) Chandrakant Joshubai Patel v. Republic [2004] TLR 2018. (iii) George Mwanyingili v. The Director of Public Prosecutions, Criminal Application No. 27/6 of 2019 (unreported). (iv) Elia Kasalile and 17 Others v. Institute of Social Work, Civil Application No. 187/18 of 2018 (unreported). (v) Minani Evarist v. Republic, Criminal Application No. 5 of 2012 (unreported). (vi) Blueline Enterprises Tanzania Limited v. East African Development Bank, Civil Application No. 21 of 2012 (unreported).

Statutory provisions referred to: (i) The Court of Appeal Rules, 2009 under rules Rule 66 (1) (a) to (e). (ii) Appellate Jurisdiction Act, Cap 141 R.E. 2019 (the AJA) under section 4(4). Applicant, appearance in person. Dr. Tasco Luambano, for the Respondent.