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Ruling of The Court: ST ND
Ruling of The Court: ST ND
AT ARUSHA
VERSUS
KITUSI. J.A.:
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
i
The brief background of the matter is that Njake Enterprises Ltd,
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
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
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
shown above, the major complaints are in two categories, in the motion
the applicants have raised four grounds to support their application. These
are:
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
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
We shall address the second limb first that alleges denial of the night
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
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
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
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 : -
The learned counsel maintained that, in any event, the parties were
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
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.
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
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
stated in the case of Judge Incharge High Court Arusha & Another
without hearing the parties, that statement had no bearing to the final
decision of the Court, therefore not fatal. We therefore dismiss the second
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
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
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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
application for review because an important issue had not been effectively
dealt with.
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 &
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
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cited the case of Huang Qin & Another v. Republic, Criminal
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.
error if any, it would require the Court to peruse the record, and that is
effectively deal with the eviction order, Mr. Materu submitted that the
Court dealt with it extensively and argued again that this too would
against the norm in review applications. For this, the learned counsel cited
[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
li
applicants have only managed to show that they have been aggrieved by
looking into an exhibit which was, however, not part of the record,and
point is, naturally, rule 66 (1) (a) of the Rules, which stipulates: -
what a manifest error on the face of the record means. There is a large
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T.L.R 218 cited in the case of Edger Kahwili (supra). We too shall recite
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
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
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extensively and argued that it will require a long-drawn process of
observe that there is no denying the fact that the applicants' status as
of the Court, it referred to part of the arguments by the counsel for the
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
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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".
identify one apparent error, and that is that, while the Court acknowledges
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.
judgment and take a look at exhibit Dl, citing Felix Bwogi (supra).
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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
restrictive that they deny us the luxury of acting the way we acted in Felix
many of our decisions. See for instance the cases of Isaya Linus
late Asheri Nyika), Civil Application No. 487/13 of 2020 and Attorney
the late Dolly Maria Eustace) & 3 Others, Civil Application No. 314/12
that we should peep into the record of appeal because it has been
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
no end to ingenuities.
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demonstrate, it cannot be said that the error is obvious and patent.
were.
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
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
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
been wrong. A wrong conclusion, in our view, is not the same as failure
contending that there was an error apparent on the face of the record in
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the impugned decision. Consequently, we find the whole application
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
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
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