IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA

MISCELLANEOUS LAND APPEAL NO. 09/2023

(Arising from the Misc. Land Application No. 86 of 2019 before the District Land and
Housing Tribunal for Singida at Singida vide which it reviewed its decision in Land
Appeal No. 15 of 2018).

AMOSI NYAMBI........................................................... APPELLANT

VERSUS
SAIDI ABDALLAH................................................... RESPONDENT

JUDGMENT
Date of Last Order: 21/6/2024

Date of Judgment: 02/8/2024

MASABO, J:-
Amosi Nyambi, the appellant herein, was the plaintiff in Madai (Civil Case)
No. 88 of 2018 before Mwasauya Ward Tribunal (the trial tribunal). He was
suing the respondent for trespassing on his land. After the hearing of the
matter, the trial tribunal found him to have proved his claim and it declared
him the owner of the suit land. The respondent was aggrieved. He appealed
before the District Land and Housing Tribunal of Singida (the appellate
tribunal or the DLHT) vide Land Appeal No. 15 of 2018. The appeal ended
in his disfavor as the decision of the trial tribunal was upheld.

The respondent was still aggrieved but he did not appeal to this court.
Rather, he went back to the DLHT and filed a review which was admitted

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and registered as Miscellaneous Land Application No. 86 of 2019. In the said
review, he beseeched the tribunal to reverse its decision on the ground that
he had found the evidence that had been "unreasonably removed
malafidely" from the case file and hence was neither seen not considered in
the appeal. This time, he won. The DLHT reversed its judgment and decree.

The appellant was aggrieved by the reversal. He has come to this court
armed with an appeal based on three grounds of appeal as follows:
1. That, the presiding chairman of the District Land and
Housing Tribunal erred in law and fact to entertain the
chamber application which resulted into the impugned
decision knowingly that he was functus officio.

2. That, the presiding chairman of the District Land and

Housing Tribunal, erred in law and fact to entertain the
chamber application contrary to the provisions of Order
XLII, rule 1(a) & (b) of the Civil Procedure Code, Cap 33
R.E 2019.

3. That, the presiding chairman of the District Land and

Housing Tribunal, erred in law and fact to entertain the
chamber application which resulted in the impugned
decision and made it conclusive contrary to provisions of
Order XLII, rule 8 of Civil Procedure Code Cap 33 R.E 2019.

The appeal was heard viva voce. The appellant was represented by Mr.
Raymond Joachim Kim, learned counsel whereas the respondent appeared
in person, unrepresented.

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Supporting the appeal Mr. Kim submitted that the DLHT ought not to have
entertained the review as he was functus officio. By entertaining it, he
revised his own decision in the name of review. This, he argued, was wrong
as the evidence of sale was considered in Land Appeal No. 15 of 2018 and
he, personally, decided that the sale agreement was legally perfect. Later
on, he reversed the decision holding that the sale agreement was improper.
He argued that this was legally wrong. The respondent alleged that there
was a discovery of evidence but there was none. He argued further that,
even if there was such a discovery, the appellate tribunal could not have
entrained the application as such evidence could only be entertained by the
trial tribunal. It was contended further that the review is invoked only where
there is no appeal, or where there is an apparent error on the face of the
record or discovery of new evidence which is not the case here as the
respondent had the right to appeal but he forfeited it.

Moreover, it was submitted by Mr. Kim that the discovery of new evidence
can only be entertained in the trial stage. He argued further that even though
there was new evidence, the chairman was required to issue a date for a
hearing but this was not done. By way of conclusion, Mr. Kim prayed that
the review and its subsequent decision be quashed and set side with costs.
In reply, the respondent submitted that the chairman did not anyhow err.
He did what was required to be done in a review and exercised his role in
supervising ward tribunals. He argued that the appeal has no merits because
the trial tribunal had no jurisdiction to hear the case as there was already a
decision on the disputed land by this court. The decision was tendered before

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the trial tribunal but it was not considered. When he appealed to the first
trial tribunal, the documents were nowhere to be found as they had been
removed from the case file by a registry officer. He argued that had the
documents not been maliciously removed from the case file, the appellate
court could have seen them and it could have decided in his favour as it did
in the review by declaring him the owner of the suit land. Mr. Kim rejoined
by reiterating his submission in chief.

I have considered the submission by the parties and thoroughly read and
considered the trial tribunal's records alongside the grounds of appeal. The
sole issue for determination is whether the DLHT tribunal properly exercised
its powers for review.

The Land Disputes Courts Act which establishes and clothes the DLHT with
jurisdiction over land matters is silent on review and the procedure thereto.
Thus, recourse must be sought from Section 78 and Order XLII of the Civil
Procedure Code, Cap 33 R.E 2019, which regulates review proceedings in
ordinary courts. Section 78 gives the power of review and Order XLII sets
out the rules. Its Rule 1 (a) and (b) state as follows:
l.-(l) any person considering himself aggrieved-
fa) by a decree or order 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

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 passed or order made, 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
[the emphasis is added].

These rules specifically lay down the parameters under which the review
jurisdiction can be exercised. As per these rules, the powers for review can
only be exercised if there is a discovery of new and important matter or
*
evidence; where there are some mistakes or errors apparent on the face of
the record and for other sufficient reason. The powers for review are,
sparingly, exercised only on deserving cases based on the above grounds.
As stated by the Court of Appeal in the case of Tanzania Transcontinental
Co. Ltd v Design Partnership Ltd, Civil Application. No.762 of 1996
(unreported):-
"... 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 the finality of litigation and for
the certainty of the law as declared by the highest court of the
land."

Cementing this rule in Rizali Rajabu vs Republic, Criminal Application No.

4 of 2011[2013] TZCA 452 TanzLII the Court stated that:-
"First, we wish to point out that the purpose of review is to
re-examine the judgment with a view to amending or
correcting an error which had been inadvertently committed
which if it is not reconsidered will result into a miscarriage of
justice. We are alive to a well-known principle that a review

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 is by no means an appeal in disguise. To put it differently, in
a review the Court should not sit on appeal against its own
judgment in the same proceedings. We are also mindful of
the fact that as a matter of public policy litigation must come
to an end hence the Latin Maxim- Interestei reipubiicae ut
finis Litium.

Also, in Hassan Ng'anzi Khalfan vs Njama Juma Mbega & Another

(Civil Application 336 of 2020) [2021] TZCA TanzLII, the Court of Appeal
while citing C. K. Takwani Civil Procedure, 5th Edn page 400 held that:-
"...... powers of the Court to review its decision constitutes an
exception to the general rule that once a decision is composed,
signed and pronounced by the Court, the Court becomes functus
officio in that it ceases to have control over the matter and has
no jurisdiction to alter or change it. Needless to overemphasize
that a review is called for only where there is a glaring and patent
mistake or grave error which has crept in the earlier decision by
judicial fallibility. Simply stated, the finality of the decision should
not be reopened or reconsidered so as to let the aggrieved party
fight over again the same battle which has been fought and lost.
It is obvious therefore that the court's power of review is limited."

In the light of these authorities, I am fortified that the argument that the
DLHT ought not to have reviewed its decision as it was functus officio, is
misdirected as the review proceedings are an exception to the rule on
functus officio.

As regards the grounds of review, further to the principles above stated, the
Court of Appeal has in numerous decisions underscored that review should

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not be regarded as a substitute for an appeal or an appeal in disguise. In its
landmark decision in Chandrakant Joshubhai Patel vs Republic
(Criminal Application 8 of 2002) [2003] TZCA 37 (29 April 2003) TanzLII, the
Court of Appeal while citing its previous decisions in Transport Equipment
Ltd vs. Devram Valambhia, Civil Application No. 18 of 1998 (unreported)
and persuasive authority of the Supreme Court of India in Thungabhadra
Industries Ltd v. State of Andhra Pradesh, (1964) SC 1372 and of the
High Court of Uganda in Balinda v. Kangwamu [1963] EA 55 it
instructively held that:
"....... a review is by no means an appeal in disguise whereby an
erroneous decision is reheard and corrected, but lies only for
patent error.................. a point which may be a good ground of
appeal may not be a good ground for review although it may be
a good ground for an application for review and an erroneous
view of evidence or of law is not a ground for an appeal.... an
error which will ground a review, whether it be one of fact or one
of law, will be an error over which there should be no dispute and
which results in a judgment which ought to be corrected as a
matter of justice.

A court invited to review its decision must, therefore, be properly guided by

the principles enunciated in the above authority and a plethora of other
authorities. It must be certain that the grounds set out in the memorandum
of review fall under the scope of Order XLII rule 1(a) and (b) of the Civil
Procedure Code and the authorities above cited else it would risk
reconstituting itself into an appellate court for its own decision. Mr. Kim's
submission suggests that the DLHT did not fall under the scheme of Order
XLII rule 1(a) and (b) of the Civil Procedure Code and the authorities above

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cited henceforth it traversed beyond its jurisdiction. To appreciate his
argument, I have scanned through the grounds for review as set out in the
memorandum of review. It states:
"the appellant erred on law and fact to uphold the decision of
the trial ward tribunal which unreasonably removed
malafidely the applicant's strong and reliable evidences which
if the tribunal had received would decide in his favour."

Although not specifically stated, it would appear to me that, the applicant's

memorandum of review impliedly suggests that it was based on the
discovery of evidence that was lost. He beseeched the tribunal to reverse its
decision on the ground that he had found the evidence that had been
"unreasonably removed malafidely" from the case file and hence was neither
seen nor considered by the tribunal. He appended to his memorandum for
review a bundle of documents comprising of the judgment of this court in
Civil Appeal No. 28 of 1993; a letter from the DLHT for Singida dated
13/4/2011, a letter by one Said Abdallah Nkundwa dated 11th January 2018;
and summons issued by Ngamu police post.

While pondering what amounts to discovery of new evidence in the context

of review, I was attracted to a decision of the High Court of Uganda
(Commercial Division) in Ojijo Pascal vs Eseza Catherine Byakika
Miscellaneous Application No. 1028 of 2020 that dealt extensively with
reviews predicated on discovery of new evidence. I will extensively quote
the relevant part of this decision which I find to be highly persuasive. The

court stated thus:

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There is an expectation imposed upon litigating parties to place
the whole of their case before the court at the time of the initial
hearing......... review is not designed for the purpose of
allowing the parties to remedy their own failings or oversights
during trial. In all such cases, the test for review of the matter
and permitting the calling of new evidence is the same. An
unsuccessful litigant, save in very special circumstances, should
not be allowed to come forward with new evidence available
prior to judgment when he or she was content to have the trial
judge deliver judgment based on the evidence produced at a
trial in which that litigant actively participated. Therefore, the
applicant must satisfy the Court that the proposed
evidence would probably change the result, and that it
could not have been discovered by the exercise of due
diligence.
..... The unavailability of the "new evidence" must not result
from the lack of due diligence on the part of the
applicants or their counsel. The new and important
matter of evidence discovered must be one which, after
the exercise of due diligence was not within the
knowledge of the person seeking the review or could
not be produced by the applicant at the time when the
order was made. The evidence upon which the review is
sought must be relevant and of such a character that if it would
have been brought into the notice of the court, it might have
possibly altered the judgment.
Since review of the judgment is neither an appeal nor a second
inning to the party who has lost the case because of his
negligence or indifference, the party seeking review on this
ground must show that there was no failure on his or
her part in adducing all possible evidence at the trial.
The party seeking review must show that he or she
exercised the greatest care in adducing all possible

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 evidence and that the new evidence is relevant and that
if it had been given in the suit it might possibly have
altered the judgment. This provision applies to evidence that
existed at the time of a motion or trial but that could not have
been discovered with reasonable diligence prior to a court
ruling upon the motion or the trial's completion. [The emphasis
is mine].

What I decipher from this decision which I fully subscribe, to benefit from
the ground of discovery of new evidence, the applicant must demonstrate
that, one, the evidence is relevant and would probably change the result
and two, that, the failure to produce the said evidence during the trial did
not result from his negligence or lack of due diligence. In other words, he
must demonstrate that, even though he exercised due diligence in search
and producing all the relevant evidence in support of his case, the discovered
evidence was not in his knowledge or he could not produce it for reasons
other than his own negligence or apathy in the pursuit of his right.

Therefore, for the respondent's review to succeed, he had to demonstrate

these two things. The record shows that the respondent was invited to
address the court during the hearing of the review held on 3rd December
2019. From his submission reflected on page 6 of the typed proceedings of
the DLHT, it appears that the documents introduced were not new as they
were known to him. His sole task was to demonstrate that he was diligent.
He had to demonstrate that he exercised due diligence in obtaining and
tendering them before the tribunal but he could not do so for reasons other
than his negligence, apathy or lack of diligence but he miserably failed.

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Although he alleged that he previously tendered the documents before the
ward tribunal, the record from the ward tribunal does not show so. All it
shows is that when testifying before the ward tribunal as DW1, the
respondent told it that in 1992 one Emannuel Nyambi trespassed into the
suit land and that, they litigated over the suit land before Ilongero Primary
Court in Case No. 77 of 1992 where he emerged successful but the said
Emannuel Nyambi appealed to the district court. There was no mention of
the decision of this court let alone tendering of the decision of this court
which was produced in the review. As per the record, the only evidence
tendered before the ward tribunal was a contract for sale of the suit land
which was tendered and admitted by the ward tribunal on 23.01.2018. The
lamentation that the documents were in the court file but malafidely
removed by registry officers was with no merit.

It would appear that the chairperson did not address his mind to this issue.
Had he properly directed his mind to this issue, he would found that there
was nothing on the record to support the blanket accusations made by the
respondent. He would have found the application for review unmeritorious
and a mere attempt by him to remedy his negligence or lack of diligence as
manifested by his failure to produce the said documents during trial although
he had full knowledge of their existence.

For reasons above demonstrated, I am satisfied that, the tribunal materially

erred in entertaining the review as it was outside the scope of Order XLII
rules 1 (a) and (b) of the Civil Procedure Code.

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Accordingly, the appeal succeeds. The ruling of the DLHT in Miscellaneous
Land Application No. 86 of 2019 is quashed and set aside. The costs shall
follow the event.

DATED and DELIVERED at DODOMA this 2nd day of August 2024.

J. L. MASABO
JUDGE

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