IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: MWAMBEGELE, 3.A.. KOROSSO. 3.A. And KITUSI. J.A.^t

CIVIL APPLICATION NO. 69/2 OF 2023

BLUE ROCK LIMITED .............................. ............ 1st APPLICANT

GEM AND ROCK VENTURES CO. LIMITED.......................... 2nd APPLICANT

VERSUS

UNYANG ALA AUCTION MART LTD COURT BROKER...... 1st RESPONDENT

PATRICK KISWIVI SANGA (As Administrator

of the Estate of the Late ABELI SANGA ....................... 2nd RESPONDENT

(Application for Review from the Judgment and Order of the

Court of Appeal of Tanzania at Arusha)

(Mwariia. Kwariko. Mashaka. JJ.A.^

dated the 6th day of December, 2022

in
Civil Appeal No. 64 of 2017

RULING OF THE COURT

9th November 2023 & 19th January, 2024

KITUSI. J.A.:

The applicants successfully sued the respondents at the High Court

claiming general and specific damages for an alleged wrongful and

malicious eviction from premises which they were occupying as tenants.

However, on appeal to the Court, the judgment of the High Court was

quashed and its decree set aside. The applicants are relentless so they

have preferred this application for review.

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 The brief background of the matter is that Njake Enterprises Ltd,

not a party, obtained judgment in Commercial Case No. 7 of 2003 against

Tanzania Sewing Machine Company Ltd, hereinafter, TASEMA. Execution

of the decree in that case required removal of TASEMA from the house on

Plot No. 11 Block A, Sokoine Road in Arusha, and hand possession of that

house over to Njake Enterprises Ltd. The respondents were accordingly

appointed to remove TASEMA from the premises.

The essence of the complaints by the applicants was and is still that

the decree which the respondents were executing was from proceedings

to which they (applicants) were not a party. On that basis they maintained

that they were entitled to a notice before carrying out that eviction. The

High Court upheld the applicants but the Court took a different view. It

held that the eviction order was addressed to TASEMA, the landlord, so

the respondents had no duty to issue notice to the applicants who were

not cited in the eviction order. It further held that the applicants had no

cause of action against the respondents and that, if anything, they ought

to have proceeded against TASEMA, which they did not implead. There lie

the applicants' major complaints split in two categories as it will unfold in

due course.

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 The notice of motion cites section 4 (4) of the Appeilate Jurisdiction

Act, Cap 141, (the AJA), and specifically rule 66 (1) (a) and (b) of the

Tanzania Court of Appeal Rules, 2009 (the Rules). Although, as we have

shown above, the major complaints are in two categories, in the motion

the applicants have raised four grounds to support their application. These

are:

(i) The holding of this Honourable Court that"even though

the respondents were tenants in the suit promisesthe
eviction order from the court to the first appellant did
not mention them and there was no indication that the
suit promises had tenants in it so that they couid have
equally been served with the notice to vacate"is based
on a manifest error on the face o f the record resulting
in miscarriage o f justice in view o f the very Eviction
Order (exhibit D l) itself which directed the 1st and 2nd
respondents to "remove the said judgment
debtor/debtors and any person claiming or deriving title
from, through or under him/her/them any person or
persons bound by the order who refuses to vacate the
said premises and put the decree holder in possession".

(ii) The Honourable Court's holding that the applicants

herein had no cause o f action against the appellants
(now the respondents) was reached without affording a
hearing to the applicants, hence the applicants were
wrongly deprived o f an opportunity to be heard.
(Hi) The holding o f this Honourable Court that I f the
respondents had any claims flowing from the execution
o f the decree on the suit premises, they were supposed
to take them to their landlord (TASEMA)"is based on a
manifest error on the face o f the record resulting in the
miscarriage o f justice for shifting to the landlord
(TASEMA) liabilities arising from the illegalities
committed by the appellants (respondents herein) in
the course o f execution o f the decree.

(iv) The holding o f this Honourable Court th a t"there is no

way the first appellant could have issued a notice to the
respondents or any other occupants who were not
mentioned in the evection order"is based on a manifest
error on the face o f the record resulting in miscarriage
o f justice in the light o f Order XXI Rule 34 o f the Civil
Procedure Code (Cap. 33 R.E 2019) which provides
that:

"Where a decree is for the delivery o f any

immovable property in the occupancy o f a tenant or
other person entitled to occupy the same and not
bound by the decree to relinquish such occupancy-f
the Court shall order delivery to be made by affixing
a copy o f the warrant in some conspicuous place on
the property and proclaiming to the occupant the
substance o f the decree by such means as are used
locally to make public pronouncements".
 There are two joint affidavits to support the application. The first

was taken jointly by Eliamin Mgallah and Sammy Mollel as Managing

Directors of the first and second applicants, while the second affidavit was

also jointly taken by Mr. Mpaya Kamara and Ms. Neema Mtayangulwa,

both learned advocates, who had the conduct of this case at the trial and

before the Court on appeal. Mr. John Faustin Materu, also learned

advocate, took two affidavits in reply to each of the joint affidavits referred

to above. He has also been acting for the respondents before and has

resisted the present application on their behalf assisted by Mr. Ombeni

Kimaro, learned advocate. The applicants appeared through Ms. Neema

Mtayangula and Ms. Rehema Kitaly, both learned advocates.

In her submissions, both written and oral, Ms. Mtayangulwa learned

advocate addressed the application in the two limbs as earlier intimated.

The first limb is what the learned counsel considers to be a manifest error

apparent on the face of the record. The second is the alleged deprival of

the right to be heard.

We shall address the second limb first that alleges denial of the night

to be heard which falls under grounds 2 and 3 of the grounds supporting

the motion. The applicants' counsel maintained that the conclusion that
the applicants had no cause o f action against the respondents was arrived

at without affording the applicants a hearing. She cited the usual Article

13 (6) of the Constitution of the United Republic, 1977 (the Constitution)

and cases such as Mbeya -Rukwa Autoparts and Transport Ltd v.

Jestina George Mwakyoma [2003] T.L.R 251 on this settled principle.

As we shall later demonstrate, the issue requiring our determination is not

what the principle is all about and the fatality of violating it, which as we

have said is settled, but whether in fact, the applicants were denied a

hearing. Ms. Mtayangulwa pointed out that the issue of cause of action

was not one of the agreed issues during the trial nor a ground of appeal.

She then argued that if the Court was disposed to raise it as an issue, it

ought to have recalled the parties to address it. For that principle, the

learned counsel cited to us two cases bearing somewhat identical parties;

Charles Christopher Humphrey Kombe v. Kinondoni Municipal

Council, Civil Appeal No. 81 of 2017 and; Charles Christopher

Humphrey Kombe t/a Kombe Building Materials v. Kinondoni

Municipal Council, Civil Appeal No. 19 of 2019 (both unreported).

Responding to the alleged denial of the right to be heard, Mr. Materu

briefly submitted that in stating that the applicants had no cause of action

against the respondents, the Court had already decided the case and
therefore that statement was not part of the decision. From the paragraph

below, Mr. Materu underlined the words in other words to demonstrate

that at the time of making the statement about absence of cause of action,

the decision had been reached on the basis of other grounds. The relevant

paragraph reads : -

"In other words, the respondents had no cause o f

action against the appeiiants who were only
executing the eviction order directed to TASEMA

The learned counsel maintained that, in any event, the parties were

not prejudiced by that statement by the Court.

In her short rejoinder, Ms. Mtayangulwa submitted that the

statement that the applicants had no cause of action against the

respondent remains to be part of the decision and cannot be severed from

it. She pressed for a finding that the applicants were wrongly deprived of

the right to be heard. The learned counsel was not quite certain as to

what should be our consequential orders if we upheld her on this. She

suggested that we may remit the record to the trial court for it to hear

the parties on that point which was raised by the Court on its own motion.

From the submissions of both learned counsel, there is no dispute

that the parties were not invited to address the Court on the issue of

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cause of action, therefore, our preoccupation on this aspect is whether,

in line with Mr. Materu's argument, that statement was made after the

decision had been reached and therefore inconsequential, or it is an

integral part of the decision and fatal as suggested by Ms. Mtayangulwa.

We agree with Mr. Materu that the Court had three grounds of appeal

before it and disposed the appeal on one ground related to notice to the

applicants. Although there is no dispute that the Court raised the issue of

cause of action on its own motion while composing judgment and did not

afford the parties a hearing, that statement did not, in our view, inform

the final decision. This is evident in the statement made by the Court

subsequent to that reiterating its earlier finding that there was no need to

issue notice. It stated

'There is no way the first appellant could have

issued a notice to the respondents or any other
occupants who were not mentioned in the
eviction order. We find thus, that the first ground
has merit"

Therefore, we go along with Mr. Materu and reject Ms.

Mtayangulwa's argument on the point. In our view, for violation of the

right to be heard as envisaged in the Constitution as well as in the many

decided cases, to be held fatal, it must be relevant to the decision in

question. After all, there must be an exception to every rule, as the Court

stated in the case of Judge Incharge High Court Arusha & Another

v. Lord Munuo Ng'uni [2004] T.L.R 44 where it held in part that

" We are aware that the audi alteram partem, like

all legal rules, has exceptions"

In this case, we conclude that although the conclusion that the

applicants had no cause of action against the respondents was arrived at

without hearing the parties, that statement had no bearing to the final

decision of the Court, therefore not fatal. We therefore dismiss the second

ground of review for want of merit.

We go back to the first limb. Addressing us on it, Ms. Mtayangulwa

was of the view that the Court's interpretation of the eviction order was

narrow as it did not appreciate the fact that by referring to any other

persons deriving title under the judgment debtor, the eviction order was

addressing other occupants of the premises such as the tenants. She

therefore submitted that the omission to serve the applicants with the

eviction order rendered the execution illegal and the Court should have

held so, and further that the holding that the applicants were not cited in

the eviction order is a manifest error. The learned counsel insisted on the

fact that there was no dispute that the applicants were tenants in the

9
premises, and argued further that the Court did not effectively deal with

the eviction order and that, she submitted, constituted a manifest error.

The learned counsel buttressed her submission with the Court's decision

in the case of Edger Kahwili v. Amer Mbarak & Another, Civil

Application No. 21/13 of 2017 (unreported) where we allowed the

application for review because an important issue had not been effectively

dealt with.

In addition, counsel cited rule 34 of 0. XXI of the Civil Procedure

Code, hereinafter the CPC, which provides for the duty of the executing

officer to notify all those persons deriving title from the person targeted

in the eviction order. She cited the case of Balozi Abubakar Ibrahim &

Another v. M/s. Benandys Ltd, & Another, Civil Revision No. 6 of

2015 (unreported), for the holding that where enforcement of a decree is

through assistance of the court, the law must be strictly complied with.

The learned counsel prayed for an order vacating the Court's finding that

there was no need to notify the applicants.

On the other hand, Mr. Materu submitted in opposition drawing our

attention to the principles underlying applications for review, and

cautioning that the instant application seeks to invite us to rehear the

appeal, which is unacceptable. In support of his argument Mr. Materu

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cited the case of Huang Qin & Another v. Republic, Criminal

Application No. 30 of 2021 (unreported). First of all, he sought to

demonstrate that the Court's finding that the eviction order did not

mention the applicants is not an error apparent on the face of the record.

Corollary to that he argued that, in any event, to discover that alleged

error if any, it would require the Court to peruse the record, and that is

not what is expected of it when dealing with applications for review.

Similarly in relation to the argument that the Court did not

effectively deal with the eviction order, Mr. Materu submitted that the

Court dealt with it extensively and argued again that this too would

require search and a long-drawn argument to discover, which would be

against the norm in review applications. For this, the learned counsel cited

SGS Societe Generate De Surveillance SA & Another v. VIP

Engineering and Marketing Limited & Another [2016] 1 T.L.R 568

and Mathias Rweyemamu v. General Manager (KCU) Limited

[2017] T.L.R 322. He wondered how would the Court appreciate the

argument put forward by the applicants while the contents of the eviction

order, though admitted as an exhibit, were not reproduced in the

judgment. In conclusion, the learned counsel submitted that, at most, the

li
applicants have only managed to show that they have been aggrieved by

the decision of the Court.

In a rejoinder, Ms. Mtayangulwa submitted that in Felix Bwogi t/a

Eximpo Promotion & Services v. Registrar of Buildings, Civil

Application No. 26 of 1989, the Court went beyond its usualscope by

looking into an exhibit which was, however, not part of the record,and

she invited us to act in a similar manner in this application because the

record of appeal has been attached to one of the supporting affidavits.

Having received those arguments from both sides, our starting

point is, naturally, rule 66 (1) (a) of the Rules, which stipulates: -

" The Court may review its judgment or order, but

no application for review shall be entertained
except on the following grounds -

(a) the decision was based on a manifest error

on the face o f the record resulting In the
miscarriage o fjustice"

Caselaw has made this provision more elaborate by circumscribing

what a manifest error on the face of the record means. There is a large

family of decisions on this area and we have chosen to go by the

celebrated one in Chandrakant Joshubhai Patel v. Republic [2004]

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T.L.R 218 cited in the case of Edger Kahwili (supra). We too shall recite

the following oft-quoted paragraph from the decision: -

"An error apparent on the face o f the record must

be such as can be seen by one who runs and
reads, that is an obvious and patent mistake and
not something which can be estabiished by a long-
drawn process o f reasoning on points on which
there may conceivably be two opinions: [State o f
Gujarat v. Consumer Education and Research
Centre (1981) AIR GU 223].. Where the
judgment did not effectively deal with or
determine an important issue in the case, it
can be reviewed on the ground of error
apparent on the face of the record [Basselios
v. Athanasius (1955) 1 SCR 520]..."

Ms. Mtayangulwa has drawn our attention to the bolded part of that

paragraph calling upon us to grant the application on the ground that the

impugned judgment did not effectively deal with or determine an

important issue and that it constitutes an error apparent on the face of

the record. According to her, the issue that the Court did not effectively

deal with or determine is the eviction order and the need to have notified

the applicants. Mr. Materu submitted that the Court dealt with that issue

13
extensively and argued that it will require a long-drawn process of

argument to appreciate the alleged error.

In our determination of the complaint in the first limb, we wish to

observe that there is no denying the fact that the applicants' status as

tenants on the premises as well as the issuing of notice of eviction to them

were key in the determination of the appeal. In the impugned judgment

of the Court, it referred to part of the arguments by the counsel for the

applicants justifying issuance of notice to them as follows

"One, since the respondents derived title

from the judgment debtor■the first appellant
ought to have issued a 14 days' notice of
execution to them as they were not parties to
Commercial Case No. 7 o f2003 whose decree was
subject o f the execution order. He added that as
the first appellant did not issue the notice, the
respondents were not aware o f the eviction so that
they could make alternative arrangement for
relocation o f their offices or otherwise".

During the hearing of this application, the learned advocate for the

applicants insisted that there was no dispute that the applicants were

tenants. We agree with her because it can be inferred from the relevant

finding of the Court which is reproduced below: -

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 "In the case at hand, even though the
respondents were tenants in the suit
premises\ the eviction order from the court did
not mention them and there was no indication that
the suit premises had tenants in it so that they
couid have equally been served with the notice to
vacate".

We are afraid however, that the above exposition does not

represent an effective determination of the important point as to the

status of the applicants in relation to the suit premises. We are able to

identify one apparent error, and that is that, while the Court acknowledges

that tenants would be entitled to notice, it does not proceed to specifically

make a finding whether the applicants were tenants or not. With respect,

we do not agree with Mr. Materu that the above error is subtle and goes

against the norm in review cases. He was of the view that we cannot get

to that alleged error without accessing the notice, exhibit Dl. Ms.

Mtayangulwa submitted in opposition that we can go beyond the

judgment and take a look at exhibit Dl, citing Felix Bwogi (supra).

However, we do not agree with both learned counsel on their

submissions on the method of identifying the error. To begin with, the

decision in Felix Bwogi (supra) relied on by Ms. Mtayangulwa was on an

application for correction of an error in the judgment that had relied on a

15
document which was not part of the record. It was made under section 4

(2) of the Appellate jurisdiction Act, 1979 and Rule 40 of the Tanzania

Court of Appeal Rules 1979 which were in force in 1989. The Court had

to go into the details of the pleadings to appreciate the argument. Ours

is an application for review of our own decision governed by principles so

restrictive that they deny us the luxury of acting the way we acted in Felix

Bwogi (supra). We need to emphasize that in cases of review all that we

need to scrutinize is the judgment or order, which has been a subject of

many of our decisions. See for instance the cases of Isaya Linus

Chengula (as administrator of the Estate of the late Linus

Chengula) v. Frank Nyika (as administrator of the Estate of the

late Asheri Nyika), Civil Application No. 487/13 of 2020 and Attorney

General v. Mwahezi Mohamed (as administrator of the Estate of

the late Dolly Maria Eustace) & 3 Others, Civil Application No. 314/12

of 2020 (both unreported). In our view, Ms. Mtayangulwa's suggestion

that we should peep into the record of appeal because it has been

attached to the affidavit is a cunning attempt to circumvent the principle

stated in the two cases just cited above. If we accept that invitation by

the learned counsel then we will find ourselves sitting in a smoke screened

appeal of our own judgment.

 We agree with Mr. Materu in his argument that the error alluded to

by Ms. Mtayangulwa may only be detected by perusing the eviction order.

We have declined the invitation by Ms. Mtayangulwa to look into the

record of appeal attached to the supporting affidavit because that is novel

and a deviation from the established principles. We have expressed our

genuine fear that if we uphold Ms. Mtayangulwa's scheme there will be

no end to ingenuities.

Appreciated, there could be errors in the judgment sought to be

reviewed. However, have we not pronounced ourselves on that in a good

number of our decisions before? In Shadrack Balinango v. Fikiri

Mohamed @ Hamza & Others, Civil Application No. 25 of 2019 citing

Peter Ng'omango v. Gerson A. K Mwanga, Civil Application No. 35 of

2002 (both unreported) we stated that

"...nojudgment, however elaborate it may be, can

satisfy each o f the parties involved to the full
extent There may be errors or inadequacies here
and there in thejudgment. These errors could only
justify a review o f the Court's judgment, if it is
shown that the errors are obvious and patent".

In our considered judgment, since we need to look into the record

of appeal to appreciate the error that Ms. Mtayangulwa has attempted to

17
demonstrate, it cannot be said that the error is obvious and patent.

Besides, we reiterate that going through the record of appeal attached to

the supporting affidavit is quite unconventional in considering applications

for reviews as it amounts to sitting on appeal of our own decision, as it

were.

Ms. Mtayangulwa cited the case of Edger Kahwili (supra) to

impress on us that the Court did not effectively deal with an important

issue. It is true that in that case, the Court's judgment was reviewed on

the ground of failure to effectively deal with an important issue. However,

in that case unlike in the instant, the Court had wrongly nullified the entire

proceedings including the pleadings. In the review, the Court held that

there was nothing wrong with the pleadings and an order of retrial would

have been appropriate instead of nullifying the entire proceedings

including the pleadings, directing that any interested party could institute

a fresh suit. On the other hand, in this case, the Court dealt with the issue

of notice, as submitted by Mr. Materu, although its conclusion may have

been wrong. A wrong conclusion, in our view, is not the same as failure

to effectively deal with an important issue, justifying a review.

For the foregoing reasons, there is no merit in the first limb

contending that there was an error apparent on the face of the record in

18
the impugned decision. Consequently, we find the whole application

devoid of merit, and dismiss it with costs.

DATED at DAR ES SALAAM this 15th day of January, 2024.

J. C. M. MWAMBEGELE
JUSTICE OF APPEAL

W. B. KOROSSO
JUSTICE OF APPEAL

I. P. KITUSI
JUSTICE OF APPEAL

The Ruling delivered this 19th day of January, 2024 in the presence

of Mr. IMeema Mtayangula assisted by Mr. Henry Simon, learned counsel

for the 1st and 2nd Applicants and Mr. Ombeni Kimaro, learned counsel for

the 1st and 2nd Respondents vide video link from the High Court of

Tanzania at Arusha, is hereby certified as a true copy of the original.

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