Henry Muyaga vs Tanzania Telecommunications Company Ltd (Civil Application No. 2 of 2014) [2017] TZCA 1212 (5 December 2017)

' . l w IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CORAM: MUSSA, J.A. MUGASHA, J.A. And LILA, J.A.) CIVIL APPLICATION NO. 2 OF 2014 HEN RY MUYAGA ... ..................................................................... ... APPLICANT VERSUS TANZANIA TELECOMUNICATIONS COMPANY LTD ..................... RESPONDENT (Application for review of the decision of the Court of Appeal of Tanzania at Bukoba) {Kileo, Luanda, Mussa, JJ.A.) dated the 13 th day of March, 2014 in BK Civil Application No. 1 of 2013 RULING OF THE COURT 28 th November & 6 th December, 2017 MUGASHA, J.A.: This is an application by way of a Notice of Motion dated 6 th May, 2014, for this Court to review and to set aside its own decision dated 13 th day of March, 2014, in a reference vide BK Civil Application No. 1 of 2013. The relevant antecedent facts giving rise to this application are as follows: The applicant successfully sued the respondent in civil case No. 15 of 1999 before the Court of Resident Magistrate in Bukoba. However, the decision was reversed by the High Court in Civil Revision No. 5 of 2002 handed 1

down on 16/3/2010. Aggrieved by the decision of the High Court, the applicant lodged a notice of appeal on 22/3/2010. Two months later; on 17/5/2010, the applicant lodged an application before the High Court seeking extension of time to appeal. However, he withdrew the application on 6/6/2011 following the respondent's objection challenging the jurisdiction of the High Court. Later on 22/3/2013, the applicant unsuccessfully applied for extension of time to appeal which was dismissed by single Justice (Massati, J.A.). The applicant preferred a reference against the decision of the single Justice. In its Ruling now under review, though it upheld a preliminary objection against the reference sought by way of notice of motion which was in violation of Rule 62(1) of the Rules, the Court expunged the applicant's affidavit, heard the merits of the reference and dismissed the reference. The Court also confirmed the order of the single Justice to the effect that, the applicant had not shown sufficient cause to deserve extension of time to appeal. Subsequently, as indicated earlier by the Notice of Motion herein, the applicant has applied to this Court to review the said decision on account of being denied opportunity to be heard which is a manifest error on the face of record resulting in the miscarriage of 2

justice. The application is accompanied by the affidavit of HENRY MUYAGA, the applicant. Parties filed written submissions in support of their arguments for and against the grant of the application. The applicant appeared in person and the respondent was represented by Messrs Geofrey Kange and George Magambo learned counsel. Parties adopted the written submissions earlier on filed in terms of Rule 106 of the Rules. In his written submission, in elaboration of the contents of his affidavit, the applicant basically canvassed through what transpired from the trial at the subordinate court, the revision before the High Court, the application for extension of time before the single justice and the reference under scrutiny. The applicant's major areas of complaint are as follows: One, the Revision by the High Court which reversed the decision of the Resident Magistrate's Court in Civil Case No 15 of 1999 was contrary to the law because execution had already taken place. As such, the remedy for the aggrieved party was either to appeal or apply for stay of execution. Two, the single Justice of Appeal wrongly determined the application for 3

extension of time instead of initially dealing with the applicant's pending application for extension of time to serve the respondent with the notice of appeal and the letter applying for the proceedings. Three, the preliminary objection was wrongly entertained at the reference because the applicant was not served with such objection at least three clear days before the hearing. Four, the reference decision did not pay regard to substantive justice having expunged the applicant's affidavit in support of the reference on pretext that it does not embrace the prescribed formalities of its lodging. Thus, the Court misdirected itself to dismiss the application instead of striking it out to enable the applicant to re-lodge the reference in a proper manner. Five, in the impugned decision the applicant's affidavit was not considered and instead, the Court was unduly influenced by the decision of the single justice. Six, since the Court is bound to know the law, it erred in holding that details raised in the reference were not placed before the single justice. To back his propositions, the applicant referred us to among others, the cases of THE PRINCIPAL SECRETARY MINISTRY OF DEFENCE vs DEVRAM VALAMBHIA [1992] T.L.R 387, TANZANIA TRANSCONTINENTAL TRADING COMPANY VS DESIGN PARTNERSHIP LTD [1999] T.L.R 258 and 4

•. ~ -KALUNGA-AND-COMPANY ADVOCATES VS NATIONAL BANK OF COMMERCE - LTD [2006] T.L Rn 235. -The applicant concluded his submission by urging the Court to allow the application for review as prayed. On the other hand, the respondent opposed the application arguing that there is no manifest error on the record. Mr. Kange pointed out that, in the impugned decision; the applicant's account was heard by the Court in both the preliminary objection and the substantive application. He urged us to find the application not merited deserving to be dismissed with costs. After a careful consideration of the submissions of the parties the point for determination is whether the applicant has made out a case warranting a review on account of wrongly being denied a right to be heard. From the outset, we wish to point out the principle that a review is by no means an appeal in disguise because it is a matter of policy that litigation must come to an end. (RIZALI RAJABU vs REPUBLIC, Criminal Application No. 4 of 2011 (unreported)). We are equally aware that, this Court has jurisdiction to review its own decision in any given case which is aimed at ensuring that a manifest injustice does not go uncorrected (See 5

CHANDRANK JOSHUBHAI PATEL vs R. [2004] TLR. 218. The grounds on which this Court could review its decisions are listed in Rule 66 (1) (a) to

• (e) of the Rules namely:-- (a) the decision was based on a manifest error on the face of the record resulting in the miscarriage of Justice; or (b) a party was wrongly deprived of 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 Judgment was procured illegally, or by fraud or perjury. From the wording of rule 66(1) of Rules, it is clear that the review is limited in scope to grounds stated there under. This is also reflected in some of the principles governing the exercise of review as established by case law which include: One, the principle underlying a review is that the court would not have acted as it had, if all the circumstances had been known. (See ATTILIO vs. MBOWE [1970] HCD N. 3). Two, a judgment of the final court is final and review of such judgment is an exception. (See 6

BLUE LINE ENTERPRISES LTD. vs. THE EAST AFRICAN DEVELOPMENT BANK, (EADB), Civil Application No. 21 of 2012. Three, mere disagreement with the view of the judgment cannot be the ground for invoking review jurisdiction. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned decision in the guise that an alternative view is possible under the review jurisdiction. It would be intolerable and most prejudicial to the public interest if cases once decided by the Court could be re-opened and re-heard. (See BLUE LINE ENTERPRISES LTD. vs. EADB (supra) and KAMLESH VARMA v. MAYAWATI AND OTHERS, Review Application No. 453 of 2012) EAC). Four, the review should not be utilised as a backdoor method to unsuccessful litigants to re- argue their case. Five, the power of review is normally used for correction of a mistake but not to substitute a view in law (See PETER NG'HOMANGO vs. GERSON A.K. MWANGA and ANOTHER, Civil Application No. 33 of 2002 (unreported). Six, the term 'mistake or error on the face of the record' by its very connotation signifies an error which is evident per se from the record of the case and it does not require detailed examination, scrutiny and clarification either of the facts or the legal exposition. Thus, if an error is not self evident and its 7

• detection requires a long debate and process of reasoning, it cannot be - treated as an error on the face of record. Seven, the Court's rejection of one's point of view may be a ground of appeal but not a ground of review under the pretext of not being heard. (See P 9219 ABDON EDWARD RWEGASIRA vs THE JUDGE ADVOCATE GENERAL, Criminal Application No. 5 of 2011 (unreported). Eight, a Court will not sit as a Court of Appeal from its own decisions, nor will it entertain applications for review on the ground that one of the parties in the case conceived himself to be aggrieved by the decision. We shall be guided by the above firmly stated legal principles to determine the present application. In the light of the firmly stated legal principles in disposing of this application, we shall be guide by Rule 66 (1) (b) of the Rules, upon which the rival arguments of the parties basically revolve. It is not in dispute that, at the hearing of the preliminary objection against the reference centred on the violation of Rule 62(2) of the Rules, the applicant simply pleaded to be a layman and that he would abide by the determination of the Court as reflected at page 4 of the impugned ruling. Thus, the Court having heard both parties, it expunged the affidavit 8

• which had no adverse effect since the reference was not bound with formalities of filing notice of motion and the supporting affidavit applicable in other applications. Ultimately, upon hearing the parties guided by the principle of achieving substantive justice as prescribed under Rule 2 of the Rules, the Court proceeded to hear the substantive reference application. This is reflected at page 6 of the impugned Ruling whereby the applicant is on record to have fully adopted his written submissions and attempted some oral elaboration. Therefore, the applicant was given an opportunity to be heard before the determination of the substantive application as opposed to what he suggests and the record does not bail him out in his complaint. Thus, we are in agreement with the respondent that, in the reference under scrutiny, the applicant was not denied an opportunity to be heard. Therefore, reiterating what we said in BLUE LINE ENTERPRISES LTD. vs. EADB (supra), in the present application, since the applicant's points of grievance were sufficiently dealt with in the reference under scrutiny, he is not entitled to challenge the reference by invoking the review jurisdiction. In a nutshell, apart from the applicant raising complaints on discontent at the application before the single Justice and the reference, 9

his complaints were dealt with and answered by the Court in the impugned ruling. Moreover, the Court's rejection of the applicant's point of view which resulted to the dismissal of the reference may be a ground of appeal but not a ground of review under the pretext of not being heard. [See P 9219 ABDON EDWARD RWEGASIRA VS THE JUDGE ADVOCATE GENERAL (supra)]. Besides, the applicant's grievance on the Revision before the High Court which handed down the trial court's decision suffices to be a ground of appeal and not ground of invoking the review jurisdiction as a backdoor for re-arguing the reference. This we cannot condone because the applicant is not permitted to challenge the impugned decision in the guise that an alternative view is possible under review as we said in the case of BLUE LINE ENTERPRISES LTD. vs. EADB (supra). All the decisions cited by the applicant are distinguishable from the present case not bailing out the applicant's case. We say so because none of those cases was in respect of exercising the review jurisdiction and the related remedy. Finally, since the complaints raised in the motion and at the hearing were dealt with and answered in the reference at hand, in our considered 10

... view; in the present application, the applicant was all out to re-open the re- hearing of the reference in a review which is by no means an appeal in disguise because public policy demands that litigation must come to an end. We entirely agree with the learned counsel for the respondent that the applicant has not made out a case for reviewing the impugned ruling. The applicant's intended re-opening, re-hearing and re-arguing of what is already determined by the Court is an abuse of the court process. In view of the aforesaid, the application is without merit and we accordingly, dismiss it with costs. DATED at BUKOBA this 5 th day of December, 2017. K. M. MUSSA JUSTICE OF APPEAL S.EA. 'MUGASHA JUSTICE O'F APPEAL S.A. LILA JUSTICE OF APPEAL I certify that this is a true copy of the original. ~~ P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 11