| dc.description | AUSTACK ALPHONCE MUSHI v. BANK OF AFRICA TANZANIA LTD & ANOTHER
COURT OF APPEAL OF TANZANIA AT MBEYA (Mwambegele, Korosso and Rumanyika, JJ. A) CIVIL APPLICATION NO. 644/06 OF 2021
(Application for review against the decision of the Court of Appeal of Tanzania at Mbeya, Ndika, Sehel, and Kente, JJ.A., dated 25th day of September, 2021 in Civil Appeal No. 373 of 2020.)
Court of Appeal Rules – Review – Grounds for Review – Whether there is a manifest error on the face of the record resulting in the miscarriage of justice.
This is an application for review decision of the Court of Appeal of Tanzania at Mbeya in Civil Appeal No. 373 of 2020 where the applicant’s appeal was dismissed for want in merit. In that appeal, the applicant was challenging the decision of the High Court at Mbeya in Land Case No. 15 of 2015 where he had sued the respondents claiming for the declaration that the intended sale of land on Plot No. 1541 Block M at Forest Area and Plot No. 191 Block T situated at Mwanjelwa area in Mbeya (the suit land) was premature as the applicant was in ongoing negotiations to pay the outstanding loan balance. The suit was dismissed for want of locus standi on the part of the applicant. When called for hearing, the applicant adopted the notice of motion and the supporting affidavit, while the respondent’s learned advocate opposed to the application despite having failed to duly file the affidavit in reply. The court granted the respondent leave to address the Court on points of law only, whereby he pointed out; one, that the notice of motion and supporting affidavit do not comply with the requirements envisaged in Rule 66(1) (a) of the Rules which include outlining the presence of a manifest error on the face of the judgment sought to be reviewed resulting in miscarriage of justice. Two, the fact that upon applying the said tests to the instant application, the alleged manifest error cannot be detected on the face of the record as envisaged by Rule 66 (1) (a) of the Rules. Therefore, the question for determination before the Court was whether there is a manifest error on the face of the record as envisaged in Rule 66(1) (a) of the Rules, to warrant the Court to review its decision.
Held: (i) An error on the face of the record essentially envisages a plain error that is obvious, discernible, and substantial. After the Court perusal of the notice of motion and its supporting affidavit has not been able to see any averment or statement providing a description or detail of the said error. There being nothing expounded in the notice of motion on the apparent error, the applicant has only presented his dissatisfaction with the holding of the Court.
(ii) Having found that the applicant has failed to establish any apparent error in the impugned judgment subject of the instant review, to justify the Court to exercise its review mandate, the Court constrained to find that the application is wanting in merit. It thus stands dismissed with costs.
Order Accordingly.
Case Laws referred to:
• Shami Shaha v. Ibrahim Haji Selemani and 2 Others, Civil Application No. 163/17 of 2019 (unreported).
• Chandrakant Joshubai Patel v. Republic [2004] TLR 2018.
• George Mwanyingili v. The Director of Public Prosecutions, Criminal Application No. 27/6 of 2019 (unreported).
• Elia Kasalile and 17 Others v. Institute of Social Work, Civil Application No. 187/18 of 2018 (unreported).
• Minani Evarist v. Republic, Criminal Application No. 5 of 2012 (unreported).
• Blueline Enterprises Tanzania Limited v. East African Development Bank, Civil Application No. 21 of 2012 (unreported).
Statutory provisions referred to:
• The Court of Appeal Rules, 2009 under rules Rule 66 (1) (a) to (e).
• Appellate Jurisdiction Act, Cap 141 R.E. 2019 (the AJA) under section 4(4).
Applicant, appearance in person.
Dr. Tasco Luambano, for the Respondent. | en_US |
| dc.description.abstract | (i) An error on the face of the record essentially envisages a plain error that is obvious, discernible, and substantial. After the Court perusal of the notice of motion and its supporting affidavit has not been able to see any averment or statement providing a description or detail of the said error. There being nothing expounded in the notice of motion on the apparent error, the applicant has only presented his dissatisfaction with the holding of the Court.
(ii) Having found that the applicant has failed to establish any apparent error in the impugned judgment subject of the instant review, to justify the Court to exercise its review mandate, the Court constrained to find that the application is wanting in merit. It thus stands dismissed with costs. | en_US |
