Ishfaque Shabir Yusufali vs Salim Lakhani & Others (Civil Application No. 521/01 of 2022) [2023] TZCA 17786 (31 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: SEHEL. J.A.. FIKIRINI, J.A. And KHAMIS, J.A.) CIVIL APPLICATION NO. 521/01 OF 2022 ISHFAQUE SHABIR YUSUFALI (A s A d m in istra to r o f th e E sta te s o f th e La te SH A B IR YU SU FALI) .................. . .................................................................. APPLICANT VERSUS SALIM LAKHANI ............ . ...... . ................................................... 1st RESPONDENT NEVADA GOLDEN COINS LTD.................................................. 2n d RESPONDENT ISMAIL AHAMED ABDULLAH........... . ........................................3rd RESPONDENT (Application for Review of the Judgment and Decree of the Court of Appeal of Tanzania at Dar es Salaam) fMwariia J.A, Sehel J.A., and Kairo J.A.) dated the 11th day of August, 2022 in Civil Appeal No. 237 of 2019 RULING OF THE COURT 4h& 31st October, 2023 FIKIRINI. J.A.: In its decision dated 11th August, 2022, the Court allowed the appeal and quashed the judgment of the High Court of Tanzania, Land Division in Land Case No. 202 of 2013 and set aside the orders arising therefrom. Discontent with the decision, the applicant preferred this application for review predicated under section 4 (4) of the Appellate Jurisdiction Act, Cap i

141 of 2019 (the AJA) and rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules) on the following grounds: (i) That there are errors on the face of record in computing the time limitation based on the testimony of PW3 instead of computing time based on the pleadings filed by the applicant in the High Court i. e. paragraphs 8 (viii) of the plaint as per the law. (ii) That the Honourable Court did not consider annextures P4 referred in paragraph 8 (viii) of the plaint, which were copies of the pleadings filed by Shabir Yusufali and ruling of the High Court in Civil Revision No. 105 of 2002 forming part of the pleadings before High Court. The present application has a checkered history, which we find apt to encapsulate. It all started with the late Shabir Yusufali's ownership of the property on Plot No. 943/157 UWT Street/Lindi Street, Ilala District, Dar es Salaam City (the suit property) before 1993. During his lifetime, Anil Mohamed Visram and Salim Lakhani happened to be the late Shabir's close associates and tenants at the suit property. Unfortunately, the late Shabir, who passed away on 27th January, 2012, fell ill and travelled to Canada for

medical attention, leaving behind the suit property in the care and hands of Anil Mohamed Visram (now deceased); hence not a party in the present application. Anil Mohamed Visram and the first respondent, Salim Lakhani took advantage of the late Shabir's absence and filed a suit at Kisutu Resident Magistrate's Court, registered as RM Civil Case No. 105 of 2000 seeking to evict the late Shabir from the suit property. Anil Mohamed Visram and Salim Lakhani, managed to secure an ex parte judgment in their favour. The decision permitted them to effect a transfer of the suit property to the joint names of Anil Mohamed Visram and Salim Lakhani. On returning from Canada in 1999/2000, the late Shabir was met with an eviction order. That is when he learnt what transpired in his absence, that Anil Mohamed Visram and the first respondent, had filed a suit against him, from which an ex parte judgment was obtained. His reaction was to file Civil Revision No. 105 of 2002 before the High Court against the two. The High Court, in its decision dated 8th February, 2008, quashed the Kisutu Resident Magistrate's Court decision in Civil Case No. 105 of 2000 for lack of jurisdiction. Armed with the decision in Civil Revision No. 105 of 2002, in his favour, the late Shabir applied to the Registrar of Titles to have his name restored in the register of titles, as it 3

were. The Registrar of Titles refused to rectify the name on the Certificate of Title already transferred in the names of Anil Mohamed Visram and Salim Lakhani. It was at this time, the late Shabir also learnt that Anil Mohamed Visram had transferred his shares in the suit property to the third respondent, Ismail Ahamed Abdullah. The suit property was thus at one point owned by the first respondent, Salim Lakhani and the third respondent, Ismail Ahamed Abdullah. The two later jointly sold the suit property to the second respondent, Nevada Golden Coins Ltd. What we gathered from the record is that, after the late Shabir's demise, Ishfaque Shabir Yusufali, the applicant in the present application and the deceased's son, was appointed as an administrator of his estate. In the course of administering the deceased's estate, the applicant sued Anil Mohamed Visram, Salim Lakhani, Nevada Golden Coins Limited and Ismail Ahamed Abdullah, who, respectively, appeared as the 1st to 4th defendants in Land Case No. 202 of 2013 before the High Court, Land Division. After hearing the parties and their witnesses and examining the exhibits tendered and admitted in evidence, the trial court, in its judgment dated 24th August, 2018, declared the applicant the lawful owner of the

suit property and ordered the Registrar of Titles to rectify the land register to indicate the name of the deceased or his heirs. The court also ordered costs of the suit and awarded general damages. Disgruntled by the decision, the three defendants appealed the decision in the Court of Appeal, save for Anil Mohamed Visram, who had passed on before the commencement of hearing of Land Case No. 202 of 2013. At the hearing of the appeal, the appellants who had raised nine (9) grounds of complaints, dropped the 5th, 6th and 8th grounds. The appellants addressed the Court on the 2nd, 3rd and 4th grounds containing matters of law and the 1st, 7th and 9th grounds containing matters of facts. In the end, the Court decided in favour of the appellants by allowing the appeal with costs, quashing the judgment of the High Court and setting aside the orders resulting from the decision. Discontent with the decision and firmly believing that there was an error apparent on the face of the record, as alluded to above, preferred this application for review. On 04th October, 2023, the date fixed for the hearing of the application, Mr. Yudathade Paul and Dr. Abdon Rwegasira, learned advocates, appeared for their respective parties.

Mr. Paul, commenced his submissions by adopting the notice of motion, the affidavit in support of the application deponed by Ishfaque Shabir Yusufali and written submissions filed on 28th October, 2022, in line with the dictates of rule 106 (1) of the Rules. In his brief but focused submissions, he contended that the Court did not consider paragraphs 8 (iii), (v) and (viii) of the plaint, in which the applicant had outlined the sequence of the events. In sub-paragraph (iii) in particular, the applicant indicated that, the conversion occurred between 1999 and 2000, when the late Shabir was in Canada undergoing treatment. And that Anil Mohamed Visram and Ismail Lakhani, took advantage of the late Shabir's absence from the country by filing Civil Case No. 105 of 2000 at the Kisutu Resident Magistrate's Court, from which they obtained a judgment in their favour. Disagreeing with the Court, he contended that it relied on PW3- Shabir's wife's account that they came back from Canada in 1999/2000, which was contrary to the pleadings as to when her husband, the late Shabir came back from Canada. The applicant relied on the decision in Civil Revision No. 105 of 2002, as to when the fraudulent transfer was alleged to have occurred. It was his submission that the Court erroneously computed the time and concluded the suit was time-barred, while 6

paragraph 8 of the plaint has elaborately reflected everything and from the pleadings computing from 2002, the suit was not time-barred. He thus urged us to allow the application and review our previous decision. On the respondents' part, Dr. Rwegasira, aside from adopting the affidavit in reply and the list of authorities referred, contended that all the contents of paragraph 8 of the affidavit in support of the application for review were never pleaded at the trial court; therefore, the Court cannot be faulted for not addressing the unpleaded facts. Fortifying his proposition on the effect on none pleaded contents, he referred us to the case of Hotel Travertine Limited & 2 Others v. National Bank of Commerce Limited, Civil Appeal No. 82 of 2002 (unreported) in which the Court disapproved raising of matters not pleaded in the trial court below or on appeal. Enhancing his contention, Dr. Rwegasira cited to us the case of Godebertha Rukanga v. CRDB Bank Ltd & 3 Others, Civil Appeal No. 25/17 of 2017 (unreported). In that case, the Court reiterated its position that, the matter neither pleaded nor framed as an issue or argued and left for court's determination cannot be taken on board on appeal.

Furthering his submission, Dr. Rwegasira, criticized the applicant's reliance on the affidavit of Mr. C. W. Mundeba, which was annexed to the application for revision but not admitted in evidence. On this point, he backed his proposition by citing to us the cases of Japan International Cooperation Agency (JICA) v. Khaki Complex Limited, [2006] T. L. R. 345 and Total Tanzania Limited v. Samwel Nlgonja, Civil Appeal No. 70 of 2018 (unreported), in which the Court underscored the fact that the document which was not admitted in evidence cannot form part of the record even though found included on record. Maintaining that the cause of action arose in 1999, he contended that the evidence availed to the trial court was that the late Shabir went to Canada for treatment between 1999 - 2000. Nevertheless, in his affidavit, the applicant brought up the issue of London and Dubai, which was never pleaded before and contrary to what he stated in his submission that the late Shabir had gone to Canada for treatment. He counted this as a serious contradiction because initially it was indicated that conversion took place in 2000, but later it was alleged to have occurred in 2002. He concluded that, in all sense, that can never be a reason for a party to apply for review as the suit was time-barred. s

Conversing on the application of rule 66 (1) (a) of the Rules, the learned advocate dismissed an allegedly existence of an error apparent on the face of the record, upon which the present application was premised. He argued that the Court at page 13 of its judgment, clearly indicated that it had carefully examined the record and considered the counsel for the parties' rival submissions prior to reaching its decision. And based on the decisions in the cases of Exavery Malata v. R, Criminal Application No. 3 of 2013 (unreported) and Chandrakant Joshubhai Patel v. R, [2004] T. L R. 218, in which an error apparent on the face of the record has been well articulated, he implored us to decline the present application for review. The learned advocate, argued that the Court had sieved through the record and come up with its decision and that there was nothing worth a review. In light of his submission, he pressed us, to dismiss the application before the Court, in the interest of justice. In his rejoinder, Mr. Paul contended that the Court was invited to look at annexture P4, which contained several documents, including Justice Makaramba's ruling in Civil Revision No. 105 of 2002 and Mr. Mundeba's affidavit. He premised his reasoning on the fact that the ruling was part of the record of appeal and that all the contents of the affidavit were stated in

the ruling, it was his submission that the Court ought to have examined annexture P4, for a sound decision. Closing up, he reiterated his earlier submission that the Court did not consider paragraphs 8 (iii), (v) and (viii) of the plaint and thus reached an erroneous decision. And in that regard, he prayed for the application to be granted. Before we embark on discussing the merits and demerits of this application for review, we find it pertinent to state the current legal position on review. It has been the Court's stern position that litigation must come to an end or have finality, both as a matter of public policy and a sign of a properly functioning legal system. That firm Court's stance has been echoed in our previous decisions: Patrick Sanga v. R, Criminal Appeal No. 80 of 2011 and Abdon Rwegasira v. The Judge Advocate General, Criminal Appeal No. 5 of 2011, Ghati Mwita v. R, Criminal Application No. 3 of 2013 and Omary Makunja v. R, Criminal Application No. 22 of 2014 (all unreported). In Patrick Sanga's case, we had this to say on the subject, that: "The review process should never be allow ed to be used as an appeal In disguise. There m ust be an 10

end to litigation, be it in c iv il or crim inal proceedings. A ca ll to re-assess the evidence, in our respectful opinion, is an appeal through the back door. The applicant and those o f his like who want to test the Court's legal ingenuity to the lim it should understand that we have no jurisdiction to s it on appeal over our own judgm ents. In a n y p ro p e rty fu n ctio n in g ju s tic e system , iik e o u rs, litig a tio n m u st h a ve fin a lity a n d a ju d g m e n t o f th e fin a l C o u rt in th e la n d is fin a l a n d it s re v ie w sh o u ld be an e xce p tio n , That is what sound public policy dem ands" [Emphasis added] From the above legal position and the Court's powers derived from section 4 (4) of the AJA and rule 66 (1) of the Rules, those restrictive powers are to be sparingly used and in an exceptional circumstances and not as an appeal in disguise. The parameters within which those powers can be exercised have been stipulated under rule 66 (1) (a) to (e) of the Rules. Through case laws we have prominently illustrated in which circumstances an application for review can be entertained. For instance, in i i

Chandrankat Joshubhai Patel (supra), having examined several Indian decisions, the Court stated that: "An error on the face o f the record m ust be such as can be seen by one who runs and reads that is an o b vio u s a n d p a te n t m ista k e a n d n o t so m e th in g w h ich can b e e sta b lish e d b y a lo n g d raw n p ro ce ss o f re a so n in g on p o in ts on w h ich th e re m ay co n ce iv a b ly b e tw o o p in io n s. .... A mere error o f law is not a ground fo r review under this rule, That a decision is erroneous in iaw is no ground for ordering review... It can be said o f an error that is apparent on the face o f the record when it is obvious and self- evident and does not require an elaborate argum ent to be established ..." [Emphasis added] From the above legal stance, the Court, can only review its decision to correct an error or omission which is manifest on the face of the record and has occasioned a miscarriage of justice. Now, turning to the application before us, the applicant was challenging the Court's decision which found that the suit was time barred. 12

The applicant's main argument is that the Court erroneously relied on PW3's evidence rather than pleadings in paragraph 8 (iii), (v) and (viii) of the plaint. This includes documents filed, for example, the decision of the High Court in Civil Revision No. 105 of 2002 and annextures accompanying it. We have thoroughly scrutinized the Court decision but were unable to find the basis of the complaint. From Mr. Paul's submissions, both written and oral, we could not decipher the alleged error apparent on the face of the record. The contents of paragraph 8 of the affidavit in support of the application are not what was stated in paragraph 8 (iii), (v) and (iii) of the plaint. As stated in the case of Hotel Travertine Limited & 2 Others and Godebertha Rukanga (supra), the Court disapproves the practice of raising matters which were neither pleaded nor framed as an issue or argued and left for court's determination in the court below or on appeal. Guided by the above decisions, in this case, likewise, we do not approve the invitation to consider matters which were neither pleaded nor dealt with by the trial court or later on appeal. 13

An apparent error on the face of the record, as expressed in Chandrankat Joshubhai Patel (supra), means the following characteristics must at least exist: one, the error must be apparent on the face of the record; two, the error must be obvious and patent mistake such that it can be seen by one who runs and reads. Three, the error must have caused a miscarriage of justice and lastly, it should not be something that can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. Having pointed out that, we stand by our previous position that much as the list of grounds for review is not exhaustive; still, the Court will not readily extend the list of conditions for review unless there is a strong reason to do so. As intimated earlier in this decision, the idea being that the Court's power of review should be exercised sparingly and only in the most deserving cases. See, Tanzania Transcontinental Co. Ltd v. Design Partnership Ltd, Civil Application No. 62 of 1996 (unreported). In the present application, we found nothing worth calling for a review. Instead, we find the ground raised would have suited more to be ground of appeal. 14

Again, on the second ground that annexture P4 referred to in paragraph 8 (viii) of plaint consisting of copies of pleadings filed by Shabir Yusufali and the ruling of the High Court in Civil Revision No. 105 of 2002 forming part of the pleadings were not considered, is lacking in merit. Despite Mr. Paul's admission in the written submissions that annexture P4 attached to paragraph 8 (viii) of the plaint was not exhibited in court, yet, he contended that they should have been considered as pleadings are what gives a road map of the case. On this, we are at one with Dr. Rwegasira and precisely aligning ourselves with the position in the cases of Japan International Cooperation Agency (JICA) and Total Tanzania Limited (supra), in which we emphasized that the document/s not admitted in evidence cannot form part of the record although found included on record. In the present case, since annexture P4 was never admitted in evidence it could not have been relied on either by the trial court or the Court on appeal. By way of conclusion, we find it appropriate to comment that the existence of a system of the law that guarantees the certainty of its judgment and its enforceability, is fundamental. Review should therefore be exercised cautiously and upon justification and fulfillment of the 15

conditions spelt out in rule 66 (1) (a) - (e) of the Rules. The applicant had pegged his application under rule 66 (1) (a) of the Rules, but failed to establish the error apparent of the face of the record to pass the test for grant of the same. For the foregoing reasons, we find no merit in the application for review, therefore, dismiss it with costs. DATED at DAR ES SALAAM this 27th day of October, 2023. The Ruling delivered this 31st day of October, 2023 in the presence of Mr. Yudathade Paul, learned counsel for the applicant and Dr. Abdon Rwegasira, learned counsel for the respondents, is hereby certified as a true copy of the original. B. M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL S. J. KAINDA . REGISTRAR COURT OF APPEAL 16