Golden Globe International Services and Another vs Millicom (Tanzania) N.V and Another (Civil Application No. 195/01 of 2017) [2017] TZCA 171 (20 October 2017)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MBAROUK, J.A., MWARIJA, J.A, And MZIRAY. J.A.^ CIVIL APPLICATION NO. 195/01/2017

1. GOLDEN GLOBE INTERNATIONAL SERVICES } ..... APPLICANTS
2. QUALITY GROUP LIMITED VERSUS
3. MILLICOM (TANZANIA) N.V 1
4. JAMES ALAN RUSSEL BELL J .......................RESPONDENTS (Application for review of the Ruling of the Court of Appeal of Tanzania at Dar es Salaam) (Mbarouk, J.A., Mwariia, J.A., And Lila, J.A.) Dated 23r d day of February, 2017 In Civil Revision No. 3 of 2017 RULING OF THE COURT 27th July, & 20th October, 2017 MWARIJA. J.A.: The applicants, Golden Globe International Services and Quality Group Limited are the 2n d and 3r d respondents respectively in Civil Revision No. 3 of 2017 (the Main Application) which is pending before the Court. The Main Application was opened by the Court suo motu following the letter of complaint to the Chief Justice by the 1s t respondent herein, i

Millicom (Tanzania) N. V. The 2n d respondent, James Allan Russel Bell is the 1s t respondent therein. Against the Main Application were two preliminary objections filed by the learned advocates for the applicants. They challenged the Main Application basically on the ground that the same is incompetent because the 1s t respondent had alternative remedies of pursuing its rights and that in effect, it improperly preferred the complaint which led to the opening of the Main Application. In the alternative, the learned advocate for the applicants contended that the Main Application is bad in law for the reasons, firstly, of non-joinder of all the parties concerned and secondly, on the ground that the record of revision is incomplete. In the impugned ruling which was handed down on 27/2/2017, the Court overruled both preliminary objections and ordered the Main Application to proceed to hearing. The applicants were aggrieved hence this application for review. The application was brought by a notice of motion under section 4(4) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2002] (as amended by S. 4 (a) and (b) of Act No. 3 of 2016) and Rule 66(1) (a), (b), (d) and (e) of the Tanzania Court of Appeal Rules, 2009 (the

Rules). It is supported by an affidavit sworn by Mr. Mpaya Kamara, advocate. In the notice of motion, the applicants have based their application on three main grounds:- (a) That the decision o f the Court has serious manifest errors on the face o f the record resulting in miscarriage of justice.... (b) That the Honourable Court has no jurisdiction to entertain the complaint by the 1st Respondent suo motu.... (c) That the Ruling o f the Court was procured by the 1st Respondent by fraudulent concealment o f facts...." Ground (a) of the review consists of 14 items, [(i) - (xiv)] describing the nature of the manifest error complained of by the applicants. Ground (b) has three items [(i) - (iii)] stating the reasons for the contention that the Court lacks jurisdiction to entertain the Main Application while ground (c) has four items [(i) - (iv)], describing the nature of fraudulent concealment of facts alleged to have been committed by the 1s t respondent.

At the hearing of the application, the 1s t applicant was represented by Mr. Mpaya Kamara and Mr. Joseph Ndazi, learned advocates while the 2n d applicant was represented by Mr. Seni Malimi, learned advocate. On its part, the 1s t respondent had the services of Mr. Erick Ng'maryo, Mr. Fayaz Bhojani, Mr. Gaudiosius Ishengoma and Mr. Audax Kahendaguza Vedasto, learned advocates. The 2n d respondent did not enter appearance though he was duly served. In compliance with Rule 106 (1) of the Rules, the learned advocates for the applicants filed their written submission in support of the application. Similarly, the learned advocates for the 1s t respondent filed their reply submission in compliance with Rule 106 (8) of the Rules. The respective advocates for the parties did also file their lists of authorities consisting of a number of authorities, mostly on the scope of the Court's review jurisdiction. We appreciate their efforts. Before he proceeded to make his oral arguments highlighting on the written submission, Mr. Kamara informed the Court that the applicants had decided to abandon the whole of ground (b) and items (iii), (iv), (v), (vii) and (viii) of ground (a) of the review. As a result, ground (a) of the review

was based on the following nine factors which are stated in a form:-

1. The Court has ruled to proceed with the hearing of the substantive revision suo motu withoutjoining ai! concerned parties to wit; the Judgment Debtors and

Mr. Mustafa Nyumbamkali, the Court Broker who conducted the action ; contrary to the law, previous decisions o f the Court and express directive o f the Acting Chief Justice dated 2?h January 2017 directing the opening o f the revision suo motu. 2. The Ruling o f the Court has misapplied, ignored and overlooked the legal import and application o f Section 4(3) o f the Appellate Jurisdiction Act, Cap 141 [R.E. 2002] in holding that the Court when exercising suo motu supervisory jurisdiction is not bound to follow, during the conduct o f the proceedings any rule or specific procedure or to observe certain pre-requisite conditions established by the law and decisions o f the Court. The decision ignores various previous decisions o f the Court.... 3. That the Ruling o f the Court has serious errors occasioning injustice in that the Court treated the Acting Chief Justice directive to open revision suo motu as an order o f the Court, in holding that only 5 narrative

one issue was directed to be determined, that of whether 'the 1st Respondent was accorded right to be heard' leaving other relevant and necessary issues incidental and/or connected with the matter subject to the revision. To this extent, the Ruling o f the Court curtails the Applicants' right to be heard on the matters pertinent to the proceedings under revision exposing it to serious risk o f deprivation o f justice or lack o f recourse under section 4(3) o f the Appellate Jurisdiction Act, Cap 141 R.E. 141. That the Ruling o f the Court has serious errors that occasions miscarriage o f justice in holding that the record prepared by the Court is sufficient for purposes o f determining the issue on which the Acting Chief Justice directed opening o f the revision suo motu. The Court overlooked or ignored to consider that the Applicants and the 1st Respondent filed Supplementary Records and the same were used during the hearing for directions and preliminary objection. The Ruling o f the Court did not order to be joined to the proceedings Mr. Mustafa Nyumbamkali, the

Court Broker who conducted the auction which is under complaints in Civil Revision No. 3 o f 2017. Mr. Mustafa Nyumbamkali being the Court Officer who conducted the public auction has personal knowledge o f the entire process o f execution and is necessary party who is accouRtable for the propriety o f the execution o f the High Court's orders by way o f sale o f shares in MIC Tanzania Limited being complained of in the Revision. The Court has ordered hearing o f the revision without the said Court Broker and hence deprives him o f the right to be heard and makes it ineffective exercise o f that right by the Applicants. That complaint by the 1st Respondent in Revision No. 3 o f 2017 seeks to challenge the legality and regularity o f orders in execution o f the decree in Civil Case No. 306 o f 2002. The Court has ordered hearing o f the revision suo motu without calling all the concerned parties, persons who were parties to the suit which gave rise to the execution proceedings. This deprives them o f the right to be heard.

7. The Complaint by the 1s t Respondent raises various serious allegations o f fraud and corruption against Hon. P. S. Mazengo, the then Deputy Registrar of the High Court o f Tanzania (District Registry) at Dar es Salaam who is not a party to the Revision proceedings. The Ruling has allowed the hearing of the revision to proceed without giving directions on matters o f evidence relating to the serious complaints made against Hon. Mazengo which deprives the Applicants o f ability to be adequately heard in disproving the allegations o f fraud, corruption and forgery made against them that will ultimately affect their legal interests and rights.
8. The Complaint by the 1st Respondent raises various allegations o f fraud and corruption to be adjudicated and/or determined by the Court on revision suo motu without production o f evidence and hence deprive the Applicants effective right to be heard in the matter.
9. The absence o f the concerned parties compromises the Applicants' right to be heard in the revision. 8

As for ground (c), the four factors upon which that ground is based are as follows:- (i) That the 1st Respondent did not disclose to the Acting ChiefJustice and the Court that prior to their complaint letter dated lCfhJanuary 2017, had in two occasions written similar letters with same complaints seeking revision suo motu. These requests are contained in letters dated 8th December 2015 and $ h July 2016 which were rejected by the former ChiefJustice. This concealment to the Acting Chief Justice and the Court enabled the 1st Respondent to move the Court to deliver the Ruling date 23d February, 2017. (ii) In its letter dated lCfh January 2017, the 1st Respondent contends that neither MiHicom Tanzania N. V . nor MiHicom International Cellular SA knew o f the order by Mazengo, DR in regard o f Certificate o f Sale issued on lCfh November 2014. However, the said MiHicom International Cellular SA, is one o f the Judgment Debtor and entered appearance during execution proceedings. The said MiHicom International Cellular SA knew o f the auction o f its shares in MIC Tanzania Limited o f its shares in MIC Tanzania Limited on $ h November 2014 and that it 9

had its representatives at the auction. This fact was fraudulently concealed by the 1st Respondent. (Hi) That the 1st Respondent is a non-trading company wholly owned by MiHicom International Cellular SA with all its operations being conducted and/or financed by the said MiHicom International Cellular SA. This fact was concealed to the Acting Chief Justice and the Court. (iv) That the 1st Respondent has never complied with any o f the orders issued by the High Court o f Tanzania. Mr. Kamara argued the two grounds together. Starting with the contention that the ruling has a serious manifest errors, the learned counsel submitted that by allowing the Main Application to be heard without joining all the concerned parties, the decision occasioned a miscarriage of justice to the applicants. He named the persons who should be joined to be the judgment debtor- MIC UFA Ltd. and MiHicom International S.A., the Court broker who conducted the auction, one Mr. Nyumbamkali and the Deputy Registrar of the High Court against whom 10

the complaint was raised as regards the manner in which she conducted the execution proceedings. The submission by the learned counsel covers items (1) (5), (6) and (9) which are repetitive. It also covers items (7) and (8) which are

• • similarly, repetitive. In items (7) and (8) the applicants raised a ground that the ruling was based on an error which is manifest on the face of the record resulting in a miscarriage of justice because, although the 1s t respondent had raised an allegation against the Deputy Registrar, the Court ordered the Main Application to proceed to hearing without production of evidence hence depriving the applicants the right to be effectively heard in the matter. According to the learned counsel, to proceed without joining the Deputy Registrar will amount to condemning her unheard. As to item (9), Mr. Kamara argued that the decision to proceed without joining the concerned parties will prejudice the applicants because the effect is to make them answer the issues which would have effectively been answered by the concerned parties. Another effect, he contended, is li

that the intended consequential orders will not be appropriately issued in the absence of the parties concerned. With regard to item (3), the learned counsel argued that in the ruling, the Court erroneously treated the directive of the Acting Chief Justice as an order of the Court. This, he argued, is because the Court ruled that although the 1s t respondent's letter of complaint raises various issues, the Acting Chief Justice narrowed down the matters complained of to only one issue, whether or not the 1s t respondent was heard in the execution proceedings. According to the learned counsel, the letter of complaint raises other important issues which require to be addressed in the revision. It is for this reason, he argued, the Court wrongly treated the directive of the Acting Chief Justice as a Court order. In their submission, the learned counsel for the applicants concluded their arguments on that ground by stating as follows:- "The ruling o f the Court occasioned miscarriage o f justice in that it curtails the Applicants' right to be heard on the matters pertaining to the proceedings under the revision and hence expose them to serious risk o f deprivation o f justice or lack o f 12

recourse under section 4 (3) o f the Appellate Jurisdiction Act (supra) which require the entire proceedings o f the High Court be revised." They did not, however, cite any authority to support the argument that in exercising its revisional jurisdiction under S. 4(3) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2002] the Court must in all cases revise the entire proceedings, which are the subject of the applications for revision. On item (4) concerning incompleteness of the record of revision, Mr. Kamara submitted that the ruling was based on a manifest error on the face of the record in that, although the Court held that the record prepared by the Court is sufficient, in the course of hearing the preliminary objection, the Court acted on the supplementary records which, after having been filed by the parties, formed part of the record of revision. With regard to ground (c) of the grounds of the review, Mr. Kamara challenged the validity of the 1s t respondent's letter of complaint. He argued that in his letter, the 1s t respondent did not disclose the fact that he had previously written two letters to the office of the Chief Justice on 13

8/12/2015 and 5/7/2016 whereby the former Chief Justice directed the said respondent to file a case in court in accordance with the law instead of complaining by way of a letter. In the circumstances, the learned counsel argued, by writing another letter of complaint to the Acting Chief Justice, the 1s t respondent circumvented the law* leading to the re-opening of the matter which, according to the learned counsel, was re-judicata. The learned counsel submitted also that although on its letter dated 10/1/2017, the 1s t respondent stated that neither Millicom Tanzania N.V nor Millicom International Cellular SA were aware of the certificate of sale issued on 10/11/2014, the latter company is one of the judgment debtors and did, in fact, enter appearance through a representative at the execution proceedings. For that reason, the learned counsel submitted, the 1s t respondent was aware of auction of its shares in MIC Tanzania Ltd on 5/11/2014. The learned counsel added that the 1s t respondent lied about its corporate status. The true position, he submitted, is that the 1st respondent is wholly owned by Millicom International Cellular SA which is the judgment debtor in Civil Case No. 306 of 2002. It was argued further for the applicants, that the 1s t respondent had conceded to the existence of a pending Court proceeding in respect of the 14

parties. It was submitted that the 1s t respondent had renounced the jurisdiction of Tanzania Courts and decided to commence proceeding in the BVI (British Virgin Island) as regards the dispute arising from the sale of the shares. According to the learned counsel, the existence of Court proceeding in the British Virgin Island Is evidenced by the affidavit of Anthony Charles Sinclair dated 14/11/2016 (appearing at page 126 of the record). In his conclusion on that ground, the learned counsel stated as follows:- "With the above facts and disclosure,, the entire complaint by the 1st respondent, loses its merits and becomes exposed as a sham and a fraud against the Court. Had the Court been aware o f these facts, it would have hardly entertained the complaint and granted order for the present suo motu proceedings to proceed to hearing ." In their reply submission, the learned advocates for the 1s t respondent opposed the application contending that the same does not satisfy the conditions stipulated under Rule 66 (1) (a) and (e) of the Rules, the provisions upon which the submission in support of the application was based. The oral argument accentuating the 1st respondent's written 15

submission was made by Mr. Ng'maryo and Mr. Bhojani, learned advocates. By way of a prelude, Mr. Ng'maryo stated the principles which underlie a review of the Court's decisions; firstly, that a review is not a remedy which is available as a matter of course, secondly, that the purpose of a review is to correct a manifest error on the face of the record which resulted in a miscarriage of justice, thirdly, that a review is an exceptional process, fourthly, that the review process should not involve lengthy arguments on points which may have two opinions and fifthly, that a resort to the review process is discouraged by the Rules. On his part, while adopting the written submission filed in reply to the applicants' submission, Mr. Bhojani responded to the argument made in support of the application. He opposed the contention that the ruling is based on an error which is manifest on the face of the record. He submitted that the order of the Court overruling the objection that the Main Application should not proceed without joining the persons specified by the applicants' advocates does not constitute a sufficient ground of review. According to the learned counsel, that ground is devoid of merit because the Court decided the objection concerning non-joinder of parties stating that it does not qualify as a preliminary objection and observed that the 16

matter can be raised in the Main Application. He argued however that the persons who, according to the applicants' counsel, should be joined are not necessary for the determination of the issue involved in the application. On the contention that the Court erroneously treated the Acting Chief ♦ Justice's directive as a Court order, Mr. Bhojani argued that in directing the opening of the Main Application, the Acting Chief Justice exercised his authority where, upon his scrutiny of the complaint letter, he narrowed down the issues raised therein to the issue whether or not the 1s t respondent was accorded the right of hearing before its shares were auctioned. Mr. Bhojani responded further to the argument made by the applicants' counsel to the effect that the ruling is based on a manifest error on the face of the record on the ground that, apart from relying on the parties' supplementary records, the Court held that the record which was prepared by the Court is sufficient for determination of the Main Application. He submitted that from the arguments by the applicants' counsel, no genuine complaint can be sustained as regards the record 17

because the applicants did not show the manner in which the supplementary records had occasioned a miscarriage of justice. With regard to the submission made in support of ground (c) of the review, the learned counsel for the 1s t respondent opposed the contention that the ruling was procured by fraudulent concealment of facts. He argued that the submission on that ground, which is basically on non-disclosure of facts, are insubstantial because such non-disclosure does not fall within the scope of Rule 66 (1) of the Rules and cannot form a ground of review. He added that, in any case, the issue concerning non-disclosure of facts did not arise in the preliminary objection and was thus not decided by the Court. The above being the substance of the submissions made by the learned counsel for the parties, we wish to state at the outset that in the exercise of its powers of review, the Court is guided by the laid down principles which include those stated by Mr. Ng'maryo and agreed to by Mr. Kamara. These principles and others, which emanate from decisions of the courts within and outside our jurisdiction, were stated by the East African Court of Justice (Appellate Division at Arusha) in the case of Angella 18

Amudo v. The Secretary General of the East African Community, Civil Application No. 4 of 2015 (unreported). In that case, which was cited by the learned counsel for the 1s t respondent, the following principles were stated: - "(a) The principle underlying a review is that the court would not have acted as it had, if all the circumstances had been known.... (b) There are definite limits to the exercise o f the power o f review. The review jurisdiction is not by way o f an appeal. The purpose o f review is not to provide a back door method to unsuccessful litigants to re-argue their case. Seeking the re-appraisal o f the entire evidence on record for finding the error, would amount to the exercise o f appellate jurisdiction which is not permissible.... (c) The power o f review is limited in scope and is normally used for correction o f a mistake but not to substitute a view in law. This is because no judgment however elaborate it may be can satisfy each o f the parties involved to the full extent... 19

(d) A judgment o f the final court is final and review o f such judgment is an exception. (e) In review jurisdiction ; mere disagreement with the view o f the judgment cannot be ground for invoking the same. As long as the point is

• • already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the reviewjurisdiction.... (f) There is a dear distinction regarding the effect o f an error on the face of the record and an erroneous view o f the evidence or law. An erroneous view justifies an appeal. Therefore, the power o f review may not be exercised on the ground that the decision was erroneous on merit... (g) It will not be sufficient ground for review that another judge would have taken a different view. Nor can it be a ground for review that the court preceded on incorrect exposition o f the law..., (h) A Court will not sit as a court o f appeal from its own decisions, nor will it entertain applications for review on the ground that one 20

o f the parties in the case conceived himself to be aggrieved by the decision. 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.... (i) The term 'mistake or error on the face o f the record' by its very connotation signifies an error which is evident per se from the record o f the case and does not require detailed examination ; scrutiny and elaboration either o f the facts or the legal position. I f an error is not self-evident and detection thereof requires a long debate and process o f reasoning, it cannot be treated as an error on the face of the record. To put it differently, it must be such as can be seen by one who runs and reads..." The learned counsel for the 1s t respondent submitted that, in the light of the above stated principles, the grounds raised by the applicants do not satisfy the conditions stated under Rule 66 (1) (a) and (e) of the Rules upon which the submission in support of the application was based. As pointed out above, the gravamen of the applicants' submission on ground 21

(a) is that the ruling was based on an error which is manifest on the face of the record on the basis of the contentions stated in items (1), (5), (6), (7), (8) and (9) of that ground. According to the learned counsel for the applicants, the ruling was based on a manifest error because the Court overruled the point that the Main Application is incompetent for non-joinder of the parties concerned and ordered the matter to proceed to be heard in their absence. In overruling that objection, the Court stated as follows:- "All in aii, we are o f the considered opinion that the issue o f non-rejoinder o f any party cannot be raised as a preliminary objection as such an omission is not a pure point o f law which can lead the matter before a Court to be finally determined.... For the reasons stated above, we are o f the view that, the objection on non-joinder o f some parties ought to be argued in a normal manner hence the point o f objection was prima facie legally untenable, we therefore over-rule it ." In support of that view, the Court cited the case of Bendandy's Ltd v. Balozi Abubakar Ibrahim and Bibi Sophia Ibrahim, Civil Revision 22

No. 6 of 2015 (unreported), also cited in the 1s t applicant's list of authorities. In that case, upon finding that one of the parties, the Court Broker who conducted auction, was not joined in the application for revision, the Court did not strike out the application. It adjourned it and ordered that the said party to be joined in the application. In these items, the applicants are obviously challenging the decision of the Court to the effect that the issue concerning non-joinder of the parties does not qualify as preliminary objection. With regard to items (3) and (4) of ground (a) of the review concerning incompleteness or otherwise of the record and the contention that the Court treated the directive of the Acting Chief Justice as a court order, the applicants are also challenging the Court's finding that the Main Application was opened for the purpose of determining the issue whether or not the 1s t respondent was denied the right to be heard in the execution proceedings. The two items arose from the Court's decision that the record prepared by the Court is sufficient for determination of the above stated issue contained in the directive of the Acting Chief Justice. That part of the ruling states as foliows:- 23

"...before the Acting Chief Justice directed this revision to be opened suo motu, he narrowed down the applicant's complaints to the issue o f right to be heard.... Therefore, these revision proceedings are centered on that pertinent issue o f the right to be heard.... We are further o f the view that, if the Hon. Acting Chief Justice wanted to be incorporated other issues, we believe that, he could have indicated so in his directions. We further believe that the record prepared by the court is sufficient for the purpose o f determining the issue on which the Acting Chief Justice directed the opening o f the revision suo motu, which is limited to whether or not the Applicant was condemned unheard before its shares were sold by auction to the 2n d Respondent." The argument by the learned counsel for the applicants is that from the 1s t applicant's letter, apart from the issue which the Acting Chief Justice directed to be considered, there are other important issues which require to be addressed in the revision. He proceeded to propound the following five issues 24

" [1] Whether the 1st respondent is not the judgment debtor and thus his alleged shares were attached and sold fraudulent (sic), or [2] Whether the 1st respondent legally exists in Tanzania independent o f the judgment debtors, or [3] Whether the 1st respondent is different from the judgment debtors such that its assets in Tanzania are not attachable in execution o f a decree, or [4] Whether the 1st respondent was not aware o f the execution proceedings which led to attachment and sale o f its alleged shares. [5] Whether forgery and corruption was committed in the attachment and sale by public auction o f the 1st respondent's shares and who committed it ." From the matters which have been raised and the supporting submission, there is no gainsaying that the learned advocates for the applicants are challenging the findings of the Court. The issue is whether the matters complained of in ground (a) fall within the scope of Rule 66 (1) (a) of the Rules. 25

To answer this issue, it is apposite to consider what an apparent error on the face of the record entails. The phrase is defined in the case of Nguza Vikings @ Babu Seya & Another v. The Republic, Criminal Application No. 5 of 2010 (unreported), cited by the learned counsel for the V 1s t respondent. The Court stated as follows:- "There is no dispute as to what constitutes a manifest error apparent on the face o f the record. It has to be such an error that is an obvious and patent mistake and not something which can be established by a long drawn process o f reasoning on points which may conceivably be two opinions ...." In the same vein, in the case of African Marble Company Limited (AMC) v. Tanzania Saruji Corporation (TSC), Civil Application No. 132 of 2005 (unreported), the Court quoted with approval the definition of that phrase as stated in Mulla, Indian Code of Civil Procedure, 14th Ed., pages 2335 - 36 where the learned author states as follow: "An error on the face o f the record must be such as can be seen by one who writes and reads...," 26

As can be gathered from the matters raised in ground (a) of the review, the applicants are, in essence, challenging the findings of the Court on the points which were raised in the preliminary objection. In so doing, the learned advocates for the applicants have gone as far as touching on the merits of the Main Application. We find, with respect, that the same are going beyond the scope of the application for review. We wonder how could have the issues propounded in the applicants' submission be considered in the preliminary objection. The issue such as, whether or not the 1s t respondent was aware of execution proceedings and that which concerns the 1s t respondent's corporate status in Tanzania are obviously the issues which can appropriately be considered in the Main Application. They could not have been considered in the preliminary objection. From the authorities on the principles of review, there is no gainsaying that the matters raised in ground (a) of the review do not fall within the scope of Rule 66 (1) (a) of the Rules. As stated above, the* applicants are challenging the findings of the Court. It is trite law that the Court's review jurisdiction is not intended to be used to challenge the merits of a decision. That legal position was underscored in the case of Julius Rukambura v. Issack Ntwa Mwakajila & Another, Civil 27

Application No. 3 of 2004 (unreported). In that case, the Court had this to say:- "The fact that the applicant may have been unhappy with the decision or even that the Court was wrong in holding such view cannot provide a basis for review, although had there been a higher appellate tribunal the applicant might want to appeal against that decision." [Emphasis added]. With regard to ground (c) of the review, as stated above, some of the factors forming the basis of theapplications' contention that the impugned ruling was procured by fraudulent concealment of facts are a repetition of what were stated in ground (a) of the review. These are items (ii) alleging that the author of the letter lied when he contended that the 1s t respondent was not aware of the execution proceedings and item (iii) in which the 1s t respondent is alleged to have failed to disclose that it is wholly owned by Millicom International Cellular SA. We have already decided that these matters go to the merits of the Main Application. We find therefore that the same were improperly raised in this ground of review. 28

Similarly, as for the remaining items (i) and (iv), the issues firstly, whether or not the 1s t respondent had written two letters to the office of the Chief Justice prior to the letter which initiated the Main Application and secondly, whether or not the 1s t respondent had failed to comply with any of the orders of the High Court, could not have been the subject of decision in the preliminary objection. In fact, as submitted by Mr. Bhojani, the alleged facts which gave rise to these issues were not dealt with in the preliminary objection. Given the legal position as regards the nature of a preliminary objection, such unascertained facts could not be used to determine the points raised by learned counsel for the applicants in the preliminary objection. For these reasons, we are unable to comprehend how the alleged facts can support the contention that the ruling was procured by fraudulent concealment of facts. To recaputulate our view, the grounds of the preliminary objection were not based on the contents of the letter of complaint but on the competence or otherwise of the Main Application. For that reason therefore, these contentions are, with respect, misconceived and thus untenable. As a result, we do not, as well, find merit in ground (c) of the review. 29

On the basis of the foregoing, we are of the settled view that the applicants have not satisfied the required threshold for review of a decision of the Court under Rule 66 (1) (a) and (e) of the Rules. In the event, we find the application to be devoid of merit and hereby dismiss it with costs. DATED at DAR ES SALAAM this 18th day of October, 2017. M.S. MBAROUK JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL I certify that this is a true the original. A. H. MSUMI DEPUTY REGISTRAR COURT OF APPEAL 30