IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR-ES-SALAAM

COMMERCIAL REVIEW NO.3 OF 2020 IN THE MATTER OF ARBITRATION ACT, CAP.15 R.E 2002

AND

In the Matter of a Dispute in Connection with or Arising from the Construction of Diocese Building on Plot No.7 Main

Cathedral Madukani Area, Dodoma Municipality

AND

IN THE MATTER OF SECTION 17 OF ARBITRATION ACT, CAP 15

[R.E.2002]

BETWEEN

AFRIQ ENGINEERING & CONSTRUCTION CO. LTD.... APPLICANT

VERSUS

THE REGISTERED TRUSTEES OFTHE DIOCESE OF CENTRAL TANGANYIKA............ RESPONDENT

RULING

25/03/2020 & 04/05/2020

NANGELA, J:,

This is a ruling on review application filed by the Applicant, AFRIQ

ENGINEERING & CONSTRUCTION CO. LTD. The Applicant is a

Page 1 of 36

Claimant in Misc. Commercial Cause No.4 of 2020, a case in which,

acting under section 12 (2) of the Arbitration Act, Cap.15 [R.E. 2002],

the Applicant sought for registration and enforcement, in terms of

section 17 (1) of the same Act, of an Arbitral Award dated 13th

November 2019. The Award was filed in this Court on 21st January 2020.

I find it necessary to give a brief background of what transpired

in Misc. Commercial Cause No.4 of 2020. On 19th February 2020, the

parties appeared before this Court for purposes of enforcing the Arbitral

Award. The Applicant (Claimant) enjoyed the services of two learned

Advocates, Mr. George Shayo, and Mr. Adrian Mhina. They requested

this Court, in the exercise of its powers, to register and adopt the

Arbitral Award as its decree, unless the Court remits or set it aside.

On the material date, Mr. Gabriel Masinga, and Mr. Daniel

Eliamani (Advocates) represented the Respondent. Mr. Masinga

informed this Court, that, the Respondent had just been summoned to

appear and show cause why the Award should not be registered and

enforced as a decree of this Court. He argued, that, the Award was not

properly filed in the Court. He submitted, in the alternative, that, if the

Award is properly filed, then, the Respondent was praying for time,

within 30 days, to file its petition to challenge the Award.

Page 2 of 36

Mr Mhina resisted the prayer by Mr. Masinga on the ground that,

the Respondent was already time-barred. He submitted that, the

Respondent ought to have challenged the Award within 60 days from

the date when it was published.

After the closure of all submissions the Court set a date for its

ruling. However, before delivering its ruling, this Court was informed by

a letter, that, Mr. Masinga, one of the legal counsels who represented

the Respondent on 19th February 2020, was not qualified to practice law

because his practicing certificate was yet to be renewed. The Court was

requested to expunge from the record, all submissions made by Mr.

Masinga.

Having heard from both parties, on 26th February 2020, this Court

delivered its ruling in which it had made findings, inter alia, that:

(i) the filing of the Award was properly done in accordance with

the law.

(ii) The Respondent was not time barred because the 60 days'

period within which the Respondent was entitled to challenge

the Award starts to run, not from the date when the Award was

published, but from the date when it was filed in the Court.

(iii) That, Mr. Masinga was indeed disqualified to practice as an

advocate when he appeared before this Court on 19th February

2019. His case be reported to the Advocates' Committee.

Page 3 of 36

However, for reasons stated in the ruling, this Court did not

expunge from its record, the submissions which Mr. Masinga made

before the Court was informed of his status.

On 13th March 2020, the Applicant herein, filed, under a

certificate of urgency, an Application for Review of the ruling dated 26th

February 2020. The Application was made under Order XLII rule 1(b)

of the Civil Procedure Code, Cap.33 [R.E.2002], and, the urgency of the

matter was rested on the following factors, that:

(i) the subject matter of Miscellaneous Cause No. 4 of 2020

("the main Cause") is an Arbitral Award resulting from duly

instituted and determined arbitral proceedings between the

Applicant and the Respondent before a Sole Arbitrator,

Engineer Sudhir J. Chavda;

(ii) the Application for Review arises from the ruling of the

Honourable Court dated 26th February 2020 rendered in the

main cause on respect of the filing and registration of the

Sole Arbitrator's A ward;

(Hi) an urgent hearing determination of both the main cause and

the application for review would be in line with the parties'

wish and spirit to resolve their disputes or differences

through arbitration which is more expeditious and less costly;

and

(iv) any further delay in the hearing and determination of the

application will not only prejudice the Applicant's interests,

but also defeat the very purpose of having gone through the

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arbitral process which was to have the parties' disputes or

differences resolved expeditiously.

On the basis of the above stated grounds constituting the urgency

of the matter, a 'Memorandum of Review' preferred by the Applicant

had six grounds imploring this Court to review its ruling dated 26th

February 2020. I will reproduce the grounds of review hereunder, as

follows, that:-

(i) there is an error on the face o f ruling as the Hon. Court found and

held that, the period of 60 days within which to challenge an

award or its enforcement, starts to run from the date of the filing

of the award and not from the date of publication o f the award or

from the time the aggrieved party is made or becomes aware that

the award is ready for collection.

(ii) That, there is a manifest error on the face o f the ruling as the

Hon. Court finds and holds, at page 16, that, " the mounting of a

challenge to an award can only come, not before the filing but

after it is filed in Court."

(Hi) That, there is an apparent error on the face of the ruling at page

17 wherein the Hon. Court found and held to the effect that the

Respondent would not have known the next steps taken by the

Claimant (meaning the Applicant herein) to enforce the award so

as to exercise his rights of challenging the award, for the reason

that the Respondent had in this case, as from the day of

notification of publication of the award as per the NCC Arbitration

Rules, could have collected a copy thereof and taken steps to

challenge the same, either before or after its filing in Court.

(iv) That, there is an error on the face of the ruling, at page 25,

wherein the Hon. Court states that, " Mr. Masinga appeared as a

representative o f a client (the Respondent) who in bonafides hired

Page 5 of 36

him knowing that he was a qualified advocate," which statement

contradicts the recording of Advocates Gabriel Masinga, assisted

by Mr. Daniel EHamani, as appearing for or representing the

Respondent (at page 7 of the ruling). In addition, the recording at

page 7 indicates that the said Advocates were accompanied by

one, Mr. George Mandepo, a principal officer o f the Respondent.

(v) That, there is an apparent error on the face of the ruling (at page

16) wherein the Hon. Court finds that "the Respondent appeared

in this Court because of a summons to appear and show cause

why the reliefs sought in the award being filed in this Court should

not be granted" because so far, there is no any application or

petition filed by the Applicant seeking for any relief arising out of

the award".

(vi) That, there is a manifest error on the face o f the Court's finding

for not expunging from record, the appearance and submission of

the purported Advocate Gabriel Masinga who was disqualified

to practice as an advocate on the date and time he appeared

before and addressed the Hon. Court. The error is inconsistent

with this Court's many decisions on the point and more (sic)

importantly is contrary to the settled legal position thereon by the

Court o f Appeal in CAT (DSM) Civil. Appeal.No. 140 of 2006,

between Edson Osward Mbogoro and Dr. Emmanuel

Nchimbi & Another (Unreported) with a copy attached as "A-1".

On 23rd March 2020, having ascertained that all pleadings were .

complete and properly filed in this Court, the application was set for

hearing on the 25th day of March 2020. On the appointed, the Applicant

was represented by Mr. Michael J.T. Ngalo, learned Advocate, while the

Respondent enjoyed the services of Mr. Dennis Malamba, learned

Advocate.

Page 6 of 36

Mr. Ngalo rose to address the Court, and, in his submissions,

consolidated grounds 1, 2 and 3 to form a first category, Ground 5

remained as a second category and grounds 4 and 6 were

consolidated to form a third category of review grounds. He thereby

proceeded to argue these three categories.

Regarding the first category, Mr. Ngalo submitted that, the gist

of the error in the Court's ruling was the holding, that, an aggrieved

party can or should file a petition to challenge an Arbitral Award within

60 days after the Award is filed in Court. He submitted that, in the

Applicant's view, it is not always that a petition to challenge an Award

has to await the filing of that Award in Court.

Mr. Ngalo submitted further that, in this particular matter, the

parties had agreed to follow the Arbitration Rules of the National

Construction Council (NCC). As such, they were bound by the NCC Rules.

He referred to Rule 12.1, 12.2 and 15 of the NCC Rules. The said Rules

provide as follows:

12.1 The arbitrator will make his Award in writing and unless all

parties otherwise agree, his reasons will be set out or

referred to in the Award.

12.2 The arbitrator will send his Award to the National

Construction Council within 14 days after the conclusion of

the final hearing. The National Construction Council,

Page 7 of 36

thereafter, will notify the parties that, the Award is ready to

be taken up.

Mr. Ngalo also referred to Rule 15 which I see no reason to cite

here. He submitted that, there is no dispute that the Award was

published on 13th November 2019 and, that, the parties were notified

about the award on 14th November 2019. In view of that, he submitted

that, either party was at liberty to collect the Award within a month and

would have known its contents.

He submitted, therefore, that, the 60 days (which are the concern

in this review application) would have run from 15th of December 2019

to 14th of February 2020 and either party could have challenged the

Award. Mr. Ngalo further submitted, that, there is a distinction between

challenging the validity of an Award and its enforcement. In his view,

enforcement starts with the filing of the Award in the Court.

Mr. Ngalo, thus, submitted that, the question is: when does the

filing take effect? Responding to his own question, Mr. Ngalo was of the *

view that, it takes effect when it is received by the Court. He called to

his aid and placed reliance on the case Tanzania Cotton Marketing

Board v Cogegot Cotton Company SA [1997] T.L.R. 165.

Mr. Ngalo submitted that, from the above cited judgement, the

mere receipt of an Award by the Court is enough for the Court to make

Page 8 of 36

an order that the Award is duly filed and registered as an order of the

Court. Mr. Ngalo submitted that, this was the finding of this Court

captured on page 31 of its ruling dated 26th February 2020. However, he

submitted that, the only problem is that, the Court did not go an extra

mile to immediately have the Award registered as a decree of the Court.

In his submissions, Mr. Ngalo asserted that, under the law and

practice, neither party is expected to challenge the filing of an Award or

object to it. In his views, parties could only challenge the validity of an

Award as per section 16 of the now repealed Arbitration Act Cap. 15 [R.E.

2002].

In regards to the first category of grounds of review, therefore,

Mr. Ngalo submitted, that, the Respondent should not have waited until

when the Award was filed to challenge its validity.

To reinforce his submissions, he called to aid and placed reliance

on the judgment of this Court, Mapigano, J., (as he then was) in the

case of Cagecot Cotton Co. Ltd v Tanzania Cotton Marketing

Board & Another, Misc. Civil Cause No.34 of 1996, HC (DSM)

(unreported). He referred to page 2 of the said judgment, where the

Court stated as follows:

"As I observed in Misc. Civil Cause No 58/96, a kindred case, it is

not a wrong idea that a party to an arbitral proceeding who

Page 9 of 36

wishes to challenge the validity of the award in this Court can do

so even before the award is filed, upon being duly notified of the

making and signing the same."

However, Mr. Ngalo acknowledged, in his submission, that, there

is a diversity of ideas on the point he had raised, i.e., whether a

challenge o f an Award comes before or after its filing. To that effect, he

cited the decision of this Court, in the case of ISOP BPO Tanzania Ltd

v Equity Bank (T) Ltd, Misc. Civil Cause No.659 of 2016 (HC) (DSM)

(Unreported). On page 10 of the judgment, this Court stated as follows:

" With respect, I do not think that is legally tenable, for two

reasons. First, the power of this Court to set aside the Award

under section 16 of the Arbitration Act Cap. 15 [R.E. 2002]

presupposes that the said award has been filed. I do not see how

a court would venture to set aside an Award that is not before

it...."

Despite of the above decision, still Mr. Ngalo requested this Court

to revise its findings, on page 18 of the Ruling dated 26th February 2020,

regarding the time when the 60 days limitation period starts to be

reckoned. He submitted that, the basis of his request is that, challenging

the validity of an Award does not need to await for its filing. As it may be

noted, his assertion is contrary to the position of this Court in the above

cited case.

Page 10 of 36

As regards the 2nd category of grounds of review, Mr. Ngalo

submitted that, the finding of this Court, on page 16 of its ruling dated

26th February 2020, which was to the effect that, "the Respondent

appeared in this Court because o f a summons to appear and show cause

why the reliefs sought in the Award being filed in this Court should not

be granted," constitute an error on the face of record.

Mr. Ngalo argued that, this was an error because there is no

application by the Applicant for any relief in terms of the Award. As for

him, what was before the Court was an Award brought by an Arbitrator

for its filing. He stated that, the Applicant has not filed any application

for execution of the Award because there is no decree which can be

executed. He submitted, therefore, that, the notice issued to the

Respondent was erroneously issued because it should have been a

notice that the Award has been filed. He, therefore, prayed that, the

Court's finding be reviewed as there was no reason to show cause why

the Award should not be registered as a decree of the Court.

As for the last category, combining ground 4 and 6 of the

Memorandum of Review, Mr. Ngalo submitted that, not expunging the

submissions made by Mr. Gabriel Masinga from the record was an error

in law because there is a consistent position of this Court that, in any

Page 11 of 36

appearance or filing of pleadings by an unqualified person, such should

be expunged from the record.

Mr. Ngalo called to his aid and placed reliance on 3 decisions of

this Court, namely, the case of Dr. Salim Ahmed Salim v The Editor,

The East African Newspaper & Another, Civil Case No.332 of 2002

(HC) (DSM) (Unreported); Ahmed Jamal v Yeslam Said Bin Kulaib,

Civil Appeal No.312 of 2004, (HC) (DSM) (unreported); and Islam Ally

Saleh v Akbar Hameer & Another, Civil Case No. 156 of 2016, (HC)

(DSM) (unreported), submitting that, these decisions, consistently

expunged from their records, the pleadings filed by an unqualified

Advocates.

Mr. Ngalo finalized his submissions by referring this Court to the

decision of the Court of Appeal in the case of Edson Osward Mbogoro

v Dr. Emmanuel Nchimbi & Another, Civil. Appeal.No.140 of 2006,

CAT (DSM), (Unreported). He submitted that, in that case, it was found

that the Advocate who prepared and filed the Memorandum of Appeal in

Court was unqualified, and, the Court held that:

"if an advocate practices as an advocate without having a current

practicing certificate, not only does he act illegally but also

whatever he does in that capacity as an unqualified person has no

legal validity. We also take the liberty to say that, to hold

otherwise would be tantamount to condoning illegality. It follows,

the notice of appeal, the memorandum of appeal and the record

Page 12 of 36

of appeal which were prepared and filed in this Court ... were of

no legal effect."

Mr. Ngalo submitted that, since the decision of the Court of

Appeal was not brought to the attention of this Court, if Mr. Masinga's

submissions are not expunged from the record, that will amount to

condoning an illegality, a fact which the Court of appeal has declined.

Mr. Ngalo noted, that, even the issue regarding non-punishment

of an innocent litigant was addressed by the Court of Appeal but the

Court was not ready to admit that ground. He contended, therefore,

that, the Respondent ought to have known that Mr. Masinga was not

qualified to practice law before engaging him. He also maintained that to

be the correct view, since, as the record shows, Mr. Masinga was, on the

material date accompanied by Mr. George Mandepo, who is a principal

officer of the Respondent ,and, an advocate who should have advised

the Respondent that Mr. Masinga was unqualified.

Finally, Mr. Ngalo requested this Court to review its earlier ruling

to the extent and in the manner submitted, including vacating its orders

that allowed the Respondent to file a Petition to challenge the Award

because it was made based on submissions of a person who was

unqualified to appear before the Court.

Page 13 of 36

For his part, Mr. Dennis, the learned advocate who appeared for

the Respondent, made a brief submission. He submitted that, as regards

the first category of compressed grounds of review, his take was that,

the time to challenge an Arbitral Award does not start to run before such

an Award is filed in Court. He firmly stated that the limitation period runs

after the filing of the Award as stated in the ruling sought to be

reviewed.

In an attempt to ward-off the tides, Mr. Dennis lowered the

anchors of his submission to the decision of this Court in the case of

Kigoma/Ujiji Municipal Council v Nyakirang'ani Construction

Limited, Misc. Commercial Cause No.239 of 2015 (unreported). In this

decision, this Court, Mwambegele, J., (as he then was) stated, at page 6,

as follows:

"For purposes of regularizing ... understanding, I hasten to

observe that a party aggrieved by an arbitral award has no

avenue to challenge the same through a Court of law until and

unless the award if filed in court for purposes of registration as a

decree of the court- See Tanzania Cotton Marketing Board v

Cogegot Cotton Company SA [1997] T.L.R. 165."

It was Mr. Dennis's submission, therefore, that, the ruling of the

Court cannot, in that regard, be faulted as containing an error in law,

and, Mr. Ngalo's submissions, should be dismissed.

Page 14 of 36

Mr. Dennis submitted, further, that, the basic legal principle

applicable to review of a decision is that, the error to be corrected must

be apparent on the face of the decision sought to be reviewed. He

argued that, the error should not be one that should be established after

a long drawn reasoning. He posited, further, that, such an error must

have occasioned a miscarriage of justice.

To tighten the nuts and bolts of his submission, Mr. Dennis called

to his aid and placed reliance on the case of Boniface Sigale and 72

Others v TRA, Civil Appeal No. 185 of 2002, (HC) (DSM) (unreported).

In this case, Mlay, J (as he then was) had the following to say:-

"With respect, an error in law, which is based or (sic) an arguable

point of law, is not an error apparent on the face of the record. If

the applicants have to go into the decision of the Court of Appeal

in S. S. Makongoro / Severino .... to establish the legal error

committed by this Court, this cannot be an error apparent on the

face of record. This is an appealable matter on legal point."

In view of the above, Mr. Dennis submitted that, if one was to

look at the grounds 1-3 of the Memorandum of review, it will be found

that the contents therein are subject to a long reasoning which, on the

face of it, seems to be akin to arguing an appeal. He, therefore,

concluded that, such Grounds of Review appear to be grounds for an

appeal.

Page 15 of 36

As regards the 2nd category of the Applicant's submission, Mr.

Dennis submitted that, Mr. Massinga was not the only Advocate who was

entered on record to have appeared for the Respondent on the material

date, and thus, the decision of the Court was correct. He submitted that,

there is no any contradiction on page 7 of the ruling of the Court. Mr.

Dennis submitted that, the Respondent had appeared before this Court

on the material date, to show cause as there was an award that had

been filed in this Court.

Further, regarding Mr. Masinga's misconduct, Mr. Dennis

reiterated the position that his misconduct should not be imputed to his

client. He strongly denounced the assertion put forward by Mr. Ngalo to

the effect that the Respondent had prior knowledge of the status of Mr.

Masinga, arguing that, it was not the duty of the client to ascertain the

practicing status of his advocate.

Mr. Dennis submitted, further, that, expunging Mr. Masinga's

submissions from the record of the proceedings will be a big punishment *

to the innocent client. He argued, and correctly so, that, on the 19th

February 2020, Mr. Masinga did not appear alone in the Court, but was

assisted by another Advocate who was duly qualified to practice.

Finally, he, implored this Court to take into account the overriding

objective principle, arguing, that, it ought to be relied upon to uphold

Page 16 of 36

substantive justice in favour of the Respondent. As such, he implored

this Court to dismiss all the prayers made by the Applicant with costs.

In a brief rejoinder, Mr. Ngalo reiterated his submission in chief.

He submitted that, he had nothing to add as regards the decision of

Mwambegele, J (as he then was) in Kigoma/Ujiji Municipal Council

v Nyakirang'ani Construction Limited, Misc. Commercial Cause

No.239 of 2015 (unreported).

Mr. Ngalo observed, however, that, his colleague, Mr. Dennis, did

not comment on the decisions which Mr. Ngalo had relied on in his

submission, especially the one by the Mapigano, J (as he then was). As

regards Mr. Masinga's appearances and submissions, he reiterated his

submissions that the same should have been expunged from the record.

He expressed his worries about Mr. Dennis's submission that a client is

not duty bound to verify the status of his advocate before engaging him.

In Mr. Ngalo's views, doing so will be as good as condoning laxity, as

many people nowadays masquerade as advocates.

As regards the applicability of the overriding objective principle,

Mr Ngalo strongly opposed Mr. Dennis's view arguing that such a

principle cannot be relied on to sanction an illegality, more so when the

advocate appeared while well aware that he was not qualified. He

submitted that, it will be a serious contradiction to overlook such a fact.

Page 17 of 36

I have given due consideration to the rival submissions by both

learned counsels. I am grateful to them for the various authorities

availed to me in the course of their submissions. Let us now turn to the

merits of this Application. In my view, there are two issues in this

Application which I am supposed to address. The first of such issues has

been raised by this Court suo moto. The issues, therefore, are as

follows:

1. Whether, taking into account section 78 (1) and (2) o f the

CPC and Order XLIII rule 2, the Application was tenable

before the Court

2. Whether there are sufficient causes or grounds to warrant

this Court to review its ruling dated 2(?h February 2020.

Before I address the two issues above, let me set out some

principles that need to be taken on board in the course of determining

this application.

First, it is trite that, unlike the Court of Appeal, which has

inherent powers of review (see Ngasa s/o Nhabi v Republic, Crim.

Appl. No.2 of 2014, CAT, at Tabora (Unreported)) and

Chandrakant Joshubhai Patel v Republic [2004] TLR 218), the

power of review exercised by this Court is a creature of statute. (See

Erimiya Serunkuma v Elizabeth Nandyose [1959] EA, 127).

Page 18 of 36

Second, it is also trite law, that, review is not an appeal in

disguise whereby an erroneous decision can be reheard and corrected

(See Ngasa s/o Nhabi v Republic (supra)). See also the Case of

James Kabalo Mapalala v British Broadcasting Corporation,

[2004] TLR 143.

Third, where an application for review is based on the ground

that there is an error on the face of record, the error complained about

must be apparent, eye-striking or self-evident and not one which needs

to detain a person through a long process of reasoning on points where

there may be two opinions. See Bulyanhulu Gold Mine Ltd & 2

Others v Isa Limited & Another, Misc. Commercial Review No.01

of 2018, (unreported). See also the case of East African

Development Bank v Blueline Enterprises Tanzania Ltd, Civil

Appl. No.47 of 2010, (unreported).

In the East African Development Bank case (supra), the Court

of Appeal cited with approval the case of Chandrakant Joshubhai '

Patel v Republic [2004] TLR 218, that adopted a reasoning in

MULLA, 14th Edn, pp. 2335-2336 thus:

"An error apparent on the face of 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 established by a long

drawn process of reasoning on points which may conceivably be

Page 19 of 36

two opinions... A mere error of law is not a ground of review....

That a decision is erroneous in law, is no ground for ordering

review.... It can be said of an error that is apparent on the face of

the record when it is obvious and self-evident and does not

require an elaborate argument to be established."

Fourth, the error apparent on the face of record must also have

occasioned an injustice, and the applicant must prove, very clearly, that,

such manifest error occasioned an injustice to him. See the case of

Kiara v Republic, Criminal Application No.4 of 2007

(unreported). In this case, the Court of Appeal, citing its own decision

in Tanzania Transcontinental Co. Ltd v Design Partnership Ltd,

Civil Appl. No.762 of 1996 (unreported), went ahead to state, further,

that:

"... the Court's power of review ought to be exercised sparingly

and only in the most deserving cases, bearing in mind the demand

of the public policy for finality of litigation and for the certainty of

the law as declared by the highest court of the land."

Having set out the above principles, let me now address the first .

issue: Whether, taking into account section 78 (1) and (2) of the

CPC and Order XLIII rule 2, the Application was tenable before

the Court.

As stated earlier, the power of this Court to review decisions of its

own is statutorily provided. In our jurisdiction, such power is premised

Page 20 of 36

on section 78 (1) and Order XLII of the Civil Procedure Code, Cap.33

[R.E.2002].

Section 78 (1) of the CPC, (as amended) provides as follows:-

"78. (1) Subject as any conditions and limitations prescribed

under section 77, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed

by this Code, but from which no appeal has been

preferred; or

(b) by a decree or order from which no appeal is allowed

by this Code,

may apply for a review of [the] judgment to the court which

passed the decree or made the order, and the court may make

such order thereon as it thinks fit."

Order XLII, rule 1 (a) & (b), 3 and 4, which are relevant to this

Application, reads as follows:-

l.-(l) Any person considering himself aggrieved-(a) by a decree or from which an appeal is allowed, but

from which no appeal has been preferred; or(b) by a decree or order from which no appeal is allowed,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order mode, or, on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order.

(2 ) ..........3. The provision as to the form of preferring appeals shall apply, mutatis mutandis to applications for review.

Page 21 of 36

4.-(l) Where it appears to the court that there is not sufficient ground for a review, it shall reject the application.

(2) Where the court is of opinion that the application for review should be granted it shall grant the same:

Provided that-(a) no such application shall be granted without previous

notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.

As noted earlier, this Application for Review is premised under

Order XLII rule 1 (b) of the CPC, Cap.33 [R.E.2002]. The Applicant,

however, did not cite section 78 of the CPC at all. I could have

proceeded with the determination of the application since the Applicant

had cited Order XLII rule 1 (b) of the Civil Procedure Code. However,

during their submissions, neither of the parties took into account what

section 78 (2) of the CPC provides, and, whether the same has any

effect on this Application.

Considering the necessity of affording the parties an opportunity

to be heard, this Court, on 2nd April, 2020, re-summoned the learned

counsels for the parties and tasked them to address the Court on what

has been framed herein as the first issue, i.e., whether, taking into

Page 22 of 36

account section 78 (1) and (2) o f the CPC and Order XLIII, rule 2d\ the

Application was tenable before the Court. The purpose was for this Court

to be satisfied as to whether the application was supposed to have

complied with the requirements of these provisions.

On the appointed date, however, Mr. Ngalo was indisposed and,

therefore, the parties could not submit their respective positions orally

before me. In view of that, this Court made an order requiring the

parties to file written submissions and address the point raised suo moto

by this Court. They dutifully filed their submissions.

In his additional written submissions Mr. Ngalo submitted that,

the application was preferred under Order XLII rule 1 (b) of the CPC. Mr.

Ngalo submitted that, whereas section 78 (2) prohibits applications for

review of interlocutory or preliminary orders or decrees, section 78 (1) of

the CPC makes provision for the right or remedy of review. In his view,

the Applicant was in compliance with section 78 (2) of the CPC since the

Applicant was and is still aggrieved by the ruling and orders of this '

Court, dated 26th February 2020, and which, by their nature and effect

are final as far as Misc. Cause No. 4 of 2020 is concerned.

As regards Order XLIII, rule 2, Mr. Ngalo submitted that, that rule

2 of that Order refers to the mode or format of making all sorts of

applications. He conceded that indeed the application at hand did not

Page 23 of 36

follow that format, but he also was quick to point out that rule 3 of

Order XLII provides for the format which an application for review should

take, which is mutatis mutandis that of preferring an appeal. As such, he

argued that the common format is to file a Memorandum of Review and

there is nothing wrong about that.

Mr. Dennis also filed his written submissions in response to Mr.

Ngalo's and addressed the point raised by this Court suo moto. In his

submissions, Mr. Dennis was of the view that, the application before this

Court was incompetent for not being filed by way of Chamber Summons

supported by an affidavit as per Order XLIII rule 2 of the CPC. He cited

the case of Ashraf A. Kimaro v Mariam Mohamed Kihiyo, Civil

Appeal No.45 of 2003, (unreported), and the case of National

Bank of Commerce v Cosmas Mukoji [1986] T.L.R. 127.

Mr. Dennis argued that there was also a failure to cite a specific

provision of the law, and, hence, the application is incompetent. He cited

several cases including City Bank Tanzania Ltd v TTCL & 30thers,

Civil.Appl.No.64 of 2002, CAT (unreported).

Finally, he submitted that, the application was in breach of section

78 (2) of the CPC, because, the ruling sought to be reviewed did not

have a finality effect, as far as Misc. Cause No.4 of 2020 is concerned.

He cited, to his aid, the Court of Appeal decision in the case of Issa

Page 24 of 36

Hassan Uki v R, Crim. Appl.No.112/07 of 2018, (unreported).

On the basis of such submissions and authorities cited, Mr. Dennis

prayed for the dismissal of the application with costs.

Mr. Ngalo filed a very brief rejoinder submission. He only

reiterated what he had earlier filed to the effect that, the Applicant was

compliant with the requirements of the law. He asked this Court to reject

Mr. Dennis' submissions and case laws as having gone overboard.

I have careful considered the additional written submissions made

by both legal counsel regarding the first issue raised by this Court suo

moto. As regards the format of an application for review, I am aware,

that, there has been two schools of thoughts, regarding whether an

application for Review should be by way of "Memorandum of Review"

(taking into account Order XLII rule 3 of the CPC), or by way of a

Chamber summons supported by an affidavit, (taking into account what

Order XLIII rule 2 of the CPC provides).

In the first school of thought, which Mr. Dennis seems to support

in his submissions, Mlay, J., (as he then was) held, in the case of Ashraf

A. Kimaro v Mariam Mohamed Kihiyo, Civil Appeal No.45 of

2003, (unreported), as follows:

"I am of the settled view that the applicant's submission that,

there is no requirement for an application for review to be

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made by a Chamber Summons supported by an affidavit, is

misconceived. Section 78 of the Civil Procedure Act, which the

Applicant has quoted in full, and also the provisions of Order

XLII Rule 1 provide for the circumstances in which a party may

apply for review, but the procedure for making all

applications, including an application for review, is

contained in Order XLIII Rule 2 which provides as follows:

2. Every application to the court made under this Code shall,

unless otherwise provided, be made by a chamber summons

supported by an affidavit Provided that the court may where it

considers it fit to do so, entertain an application made orally, or

where all the parties to a suit consent to the order applied for

being made, by a memorandum in writing signed by all the

parties or their advocates, or in such other made as may be

appropriate having regard to all the circumstances under which

the application is made." Both section 78 and Order XLII Rule I

provide that, a party "may apply for review ..." and Order XLIII

Rule (2) which provides for the procedure of making

applications under the Civil Procedure Code, requires,

mandatorily, that, "Every application to the court made under

this Code, shall unless otherwise provided be made by chamber

summons supported by affidavit'.

In the second school of thought, Makaramba, 1, (as he then was)

held, in the case of Shirika la Usafiri Dar-Es-Salaam and Another v

Brands International Ltd and 3 Others, Misc. Commercial

Review, No.3 of 2014 (Unreported), that, an application for review

does not fall under Order XLIII rule 2 of the Civil Procedure Code but

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rather under Order XLII rule 3, which provides for the form of preferring

an application for review.

In addition to the above cited case, the Court was of the view

that:

"since the application for review takes the form of an appeal, and

given that in an appeal there is no requirement of citing the

enabling provisions of the law, it boils down to the conclusion

that, citation of an enabling provision of law in an application for

review is not mandatory."

Both schools, however, seem to be inspired by one and same

decision of this Court, in National Bank of Commerce v Cosmas

Mukoji [1986] T.L.R. 127, where, on page 128, Mwalusanya, J., (as

he then was) held that, an application for review, filed by way of

Chamber Summons, but not accompanied by an affidavit, was irregular

but, the irregularity, was not fatal.

Specifically, the Court said as hereunder:

'It is conceded by this Court ... that, the application for review is

irregular in that there is no affidavit accompanying the application

but a mere statement of facts. But I hold that the irregularity is

not fatal. There is no magic in affidavits and so we should not

tend to canonize them. The Oral Statements which the applicant

made in court were sufficient to support the chamber application

instead of the affidavits."

Page 27 of 36

Looking at the opposing decisions referred to herein above, I

subscribe to the second school of thought. I consider it to be giving the

correct interpretation of what the law is. In particular, although I am

unaware of a decision of the Court of Appeal which might have

addressed the two conflicting positions, nevertheless, I find that, the

Court of Appeal decision in the Case of Chiku Hussein Lugonzo v

Brunnids S. Paulo [2001] T.L.R 498, indirectly provide a reliable

source upon which the proponents of the second school of thought may

comfortably peg their tent of argument.

In that decision, the Court of Appeal was concerned with whether

under the CPC there is a provision regarding what should accompany a

Memorandum o f Review. The Court observed and held as follows:

"As to what is to accompany the Memorandum of Review, it is our

settled view that, there is no provision under the Civil Procedure

to that effect."

In my view, the above pronouncement of the Court of Appeal

dispels the darkness and confirms the views of the second school of

thought because the Court of Appeal had referred to a 'Memorandum

of Review', as provided for under Order XLII rule 3 of the CPC. As

stated herein, this is the format under which the current application is

framed and, I am in agreement with Mr. Ngalo that, the application is

properly premised and the format it has taken is appropriate.

Page 28 of 36

The next step in relation to the first issue, however, is whether

the application is affected by section 78 (2) of the CPC. Section 78 (2) of

the CPC provides as hereunder:

(2) Notwithstanding the provisions of subsection (1), and

subject to sub-section 3, no application for review shall

lie against or be made in respect of any preliminary or

interlocutory decision or order of the Court, unless

such decision or order has the effect of finally

determining the suit, (emphasis added)

In his additional written submissions, Mr. Ngalo has submitted

that, the ruling and the Orders given by this Court on the 26th day of

February 2020, were final and conclusive in effect as far as the Misc.

Comm. Appl.No.4 of 2020 is concerned. Mr. Dennis has an opposite

view. He considers the Application as incompetent for having breached

section 78 (2) of the CPC because the ruling of this court did not have a

finality effect as far as the Misc. Comm. Appl.No.4 of 2020 is concerned.

In my view Mr. Dennis is correct, and, I beg to differ with Mr.

Ngalo's position on this. The basis for such a departure is that, the ruling

and orders issued by this Court on the 26th February 2020 did not

dispose the matters that were laid before it to their finality.

Essentially, the key to the filing of the Misc. Comm. Appl.No.4 of

2020 was the Claimant's (Applicant's) desire to have the Arbitral Award

Page 29 of 36

registered and adopted as an enforceable decree of the Court. However,

in the course, the Respondent applied for leave to file a petition in

objection to the enforcement of the Arbitral Award. The Court delivered

its ruling in the interim and granted the prayer.

In my view, therefore, the finality of the matters placed before

this Court through the Misc. Comm. Application No.4 of 2020, can only

come when this Court issues a final ruling, either granting an order

which adopts the Arbitral Award as a decree of the Court, in terms of

section 17 of the Arbitration Act, Cap.15 [R.E.2002], or setting it aside,

in terms of section 16 of the same Act. In view of that, I find that, this

application for review is in breach of section 78 (2) of the CPC and,

therefore, it is incompetent.

On the other hand, even if one was to assume that the

application has been validly filed and is not affected by section 78 (2) of

the CPC (a fact which I find it to be otherwise), I also do not find it to

surmount the second issue raised herein above, i.e., Whether there are

sufficient causes or grounds to warrant this Court to review its ruling dated

2&h February 2020.

As pointed out earlier, the current application is premised under

Order XLII rule 1 (b). The same is brought on an account of some

mistake or error apparent on the face of the record. Let me

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briefly, examine Mr. Ngalo's grounds of review in category one, in light

of the earlier mentioned principles that apply to review.

The applicant's grounds in category one, were mainly premised

on the finding of this court, that, 'the period o f 60 days within which to

challenge an award or its enforcement, starts to run from the date o f the

filing o f the award and not from the date o f publication o f the award or

from the time the aggrieved part is made or becomes aware that the

award is ready for collection'

Mr. Ngalo submitted that, there is an error in that finding.

However, with much respect, I beg to differ with Mr. Ngalo. There is

nothing in that finding which amounts to an error on face of record. As

correctly pointed out by Mr. Dennis, the decision of this Court,

Mwambegele J (as he then was), in the case of Kigoma/Ujiji

Municipal Council v Nyakirang'ani Construction Limited, (supra),

correctly stated the appropriate legal position. I thus subscribe to that

decision as well.

Besides, the Court of Appeal decision in the case of Tanzania

Cotton Marketing Board v Cogegot Cotton Company SA [1997]

T.L.R. 165, further, and, authoritatively, clears all controversies. It is

therefore correct, as submitted by Mr. Dennis's submission, that, Mr.

Page 31 of 36

Ngalo's submissions in the first category of grounds in the Memorandum

of Review, are devoid of merits and should fail.

As it was stated by Mlay J., (as he then was), in the case of

Boniface Sigale and 72 Others v TRA, (supra), "an error in law,

which is based or (sic) an arguable point of law, is not an error apparent

on the face o f the record. I f the applicants have to go into the decision

of the Court o f Appeal in S.S.Makongoro v Severino .... to establish

the legal error committed by this Court, this cannot be an error apparent

on the face of record. This is an appealable matter on legal point"

I think the same applies here, in respect of Mr. Ngalo's

submissions. In view of that, all category one grounds of Review are

without merit. I, therefore, dismiss them.

As regards the second category of grounds of review, referring

this Court to page 16 of its Court's ruling dated 26th February 2020, Mr.

Ngalo argued that, there is on it, an error on the face of record. On that

page, this Court made a finding that, "the Respondent appeared in this

Court because o f a summons to appear and show cause why the reliefs

sought in the award being filed in this Court should not be granted. "Mr.

Ngalo submitted that, such a finding amounts to an error on the face of

the ruling because there is no application by the Applicant for any relief

in terms of the Award.

Page 32 of 36

With respect, I also find that, this submission by Mr. Ngalo is

devoid of merit and should be dismissed. I hold so because, there is

nothing, in such a finding of the Court, which amounts to an error on the

face of record. Mr. Ngalo acknowledges that the Respondent was served

with a summons and appeared in court. Mr. Dennis submitted that the

summons was indeed issued to the Respondent to appear. These are

purely uncontested factual aspects.

I do not, however, see how such factual aspects amount to an

error on the face of record. Moreover, even if they would be said to

amount to an error on the face of record (a fact which I find to be

incorrect), it is a cardinal principle of law, as stated by the Court of

Appeal in the case of Kiara v Republic, Criminal Application No.4 of

2007 (unreported), that, such an error must also have occasioned an

injustice to an applicant, and, that, the applicant must prove that such

manifest error occasioned an injustice to him. The Applicant has not

proved any injustice suffered by issuance of the summons to the

Respondent. It follows, therefore, that, the second category of grounds

of review must, as well, collapse.

The final consideration goes to the last category of grounds of

review. This is about the findings of this Court regarding Mr. Masinga's

submissions. Mr. Ngalo has submitted, that, the Court's refusal to

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expunge Mr. Masinga's submission from the record after it had made a

finding that he was unqualified to appear on the 19th February 2020,

amounted to an error on the face of record.

I respectfully decline to accede to that submission. As stated by

the Court of Appeal in the case of East African Development Bank v

Blueline Enterprises Tanzania Ltd, Civil Appl. No.47 of 2010,

(unreported), and, in the case of Chandrakant Joshubhai Patel v

Republic [2004] TLR 218, an error complained about must be

apparent, eye-striking or self-evident and not one in need of a long

process of reasoning on points where there may be two

opinions.

As it may be noted herein, contrary to what is expected of an

error apparent on the face of record, Mr. Ngalo has made very elaborate

submissions when arguing the consolidated grounds of review. In view

of that fact, and, as correctly submitted by Mr. Dennis, if one was to look

at the grounds of the Memorandum of review, he will find that their

contents call for an elaborate and long process of reasoning.

In fact, I agree with Mr. Dennis, that, what is contained in the

Memorandum of Review filed in this Court, is more of arguable points of

law that befit being raised in an appeal. I fully associate myself with the

ruling of this Court in the case of Boniface Sigale and 72 Others v

Page 34 of 36

TRA, (supra), whereby, (Mlay J., as he then was), stated, that, an

error in law, which is based on an arguable point o f taw, is not an error

apparent on the face o f the record. That is more of an issue for an

appeal.

It was also emphasized by the Court of Appeal in the in the case

of East African Development Bank v Blueline Enterprises

Tanzania Ltd, (supra), and, Chandrakant Joshubhai Patel v

Republic, (supra), that, even if a party thinks that a decision rendered

is erroneous in law, still, that is no ground for ordering review.

Let it be emphasized here, that, the principles relating to what a

review process stands for, as articulated in the cases of Ngasa s/o

Nhabi v Republic (supra) and James Kabalo Mapalala v British

Broadcasting Corporation, (supra), need to be strictly observed. As

stated in those cases, a review is not an appeal in disguise whereby an

erroneous decision can be reheard and corrected. The Applicant should

not, therefore, turn this Court to an appellate court where he can seek a

rehearing of the already heard and determined facts. For that reason,

Mr. Ngalo's submission on the first category of grounds is also devoid of

merits and hereby dismissed.

In conclusion, I find that, the Application for Review, and the

grounds upon which it is premised, is devoid of merits and should be

Page 35 of 36

dismissed. Besides, since the ruling sought to be reviewed did not have

the finality effect, the filing of the Application for Review was, as well, in

breach of section 78 (2) of the Civil Procedure Code, Cap. 33 [R.E.

2002].

In view of the above reasoning, the Application is hereby

dismissed in its entirety and with costs to the Respondent.

It is so ordere

DEO JOHN NANGELA JUDGE, HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

04/ 05/2020

Ruling delivered on this 04th day of May 2020, in the presence of the

Advocates for the Applicant and the Advocate for the Respondent.

DEPUTY REGISTRAR HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

04/ 05/2020

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