Ruth Makaranga vs Salum Ayubu (Civil Application No. 363/17 of 2021) [2022] TZCA 3114 (15 September 2022)

RUTH MAKARANGA VS. SALUM AYUBU COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KWARIKO, MWANDAMBO AND KENTE JJ.A) CIVIL APPLICATION NO. 363/17 OF 2021 (Application for Revision from the Ruling and Order of the High Court of Tanzania Land Division at Dar es Salaam in Misc. Land Application No. 385 of 2020) Civil Procedure and Practice- Revision- Whether non-inclusion of all records of the trial Court in application for revision is fatal? Civil Procedure and Practice- Revision- which matters are revisable by the Court of Appeal? Civil Procedure and Practice- Revision- whether the decision rejecting application for review by the High Court is revisable by the Court of Appeal? Civil Procedure and Practice- Review- Grounds for Review at the High Court? Civil Procedure and Practice- Review- limits of power of the Court when exercising power of review? Civil Procedure and Practice-Review -error on face of record- what constitutes apparent error on face of record? By a notice of motion brought under section 4(3) of the Appellate Jurisdiction Act and Rules 65(1), (2), (3), (4) and (5) of the Tanzania Court of Appeal Rules, 2009, the applicant sought revision of the decision of the High Court of Tanzania, Land Division at Dar es Salaam (Mango, J.).The impugned ruling arose from Misc. Land Application No. 385 of 2020, which had been an application for review on the ground of an alleged apparent error on the face of the record.

The respondent raised preliminary objections contending that the application was incompetent for failure to include the proceedings of the lower courts; and the application was incompetent and bad in law for being preferred as an alternative to an appeal. The Court had to decide on whether the failure to include the entire record of proceedings of the lower courts rendered the application incompetent, and whether the application for revision was improperly preferred as an alternative to appeal. The Court further had to decide on whether the circumstances justified invocation of the Court’s revisional jurisdiction, and what constituted an “error apparent on the face of the record” for purposes of review. Held: (i) The Court held that, as a general rule, an applicant seeking revision must lodge a complete record of the proceedings sought to be revised, as stated in Zanair Limited and Another v. Hassan & Sons Ltd (unreported). However, the Court found that the entire record of the lower courts was not necessary for the determination of the present application. Since the decision sought to be revised had been included, the omission was not fatal. (ii) The Court further held that revisional jurisdiction was exercisable only in matters which were not appealable with or without leave, or where the appellate process had been blocked by judicial process. In so holding, the Court reinstated the principles laid down in Halais Pro-Chemie v. Wella A. G, Moses Mwakibete v. Editor-Uhuru & Two Others, and Transport Equipment Ltd. v. D.P. Valambhia. (iii) The Court held that where an application for review had been rejected by the High Court, the proper remedy was revision, since the right of appeal was blocked by judicial process under Order XLII Rule 7(1) of the Civil Procedure Code. The Court reiterated its earlier position as stated in Bin Kuleb Transport Company Limited v. Registrar of Titles & Three Others (unreported). (iv) The Court observed that under Order XLII Rule 1 of the Civil

Procedure Code, review could only be granted on three grounds, which were the discovery of new and important evidence which could not, despite due diligence, have been produced earlier; mistake or error apparent on the face of the record; or any other sufficient reason. (v) The Court emphasized that the power of review must not be confused with appellate jurisdiction, which permits correction of all errors of a subordinate court. (vi) On the meaning of “error apparent on the face of the record,” the Court held that it must be a self-evident error not requiring elaborate argument or prolonged reasoning to establish. An error requiring a long-drawn process of reasoning or capable of two opinions could not qualify as an error apparent. In that regard, the Court referred to Chandrakant Joshubhai Patel v. R, Karim Kiara v. R, and Epson s/o Michael v. R (both unreported). Application was dismissed with costs. Statutory provision referred to: (i) Civil Procedure Code, [Cap 33 R.E 2019], Order XLII Rule 1, 7(1). Case laws referred to: (i) Halais Pro-Chemie v. Wella A. G [1996] T.L.R. 269. (ii) Moses Mwakibete v. Editor-Uhuru & Two Others [1995] T.L.R. 134. (iii) Transport Equipment Ltd. v. D.P. Valambhia [1995] T.L.R. 161. (iv) Chandrakant Joshubhai Patel v. R [2004] T.L.R. 218. (v) Karim Kiara v. R, Criminal Application No. 4 of 2007 (unreported). (vi) Epson s/o Michael v. R, Criminal Application No. 5 of 2009 (unreported). (vii) Bin Kuleb Transport Company Limited v. Registrar of Titles & Three Others, Civil Application No. 522/17 of 2020 (unreported). (viii) Zanair Limited and Another v. Hassan & Sons Ltd, Civil Application No.348/15 of 2017 (unreported).