IN THE COURT OF APPEAL OF TANZANIA
AT PAR ES SALAAM
fCORAM: KILEO. J.A., LUANDA. J.A.. And MASSATI. J.A.)
CIVIL APPLICATION NO. 21 OF 2013
1. MUSSA HAMISI MKANGA |
2. AGNESS GIDION MOLLEL |
3. HAPPY EMMANUEL KIVUYO |................................................ APPELLANT
AND
GODBLESS JONATHAN LEMA.................................................... RESPONDENT
AND
THE HON. THE ATTORNEY GENERAL................... THE NECESSARY PARTY
(Application for a Review by the Court of the Judgment
and Order of the Court of Appeal of Tanzania
at Dar es Salaam)
(KimaroJ., Luanda., Massati, JJJ.A)
dated the 21st day of December, 2012
in
Civil Appeal No. 47 of 2012
REASONS FOR THE DECISION
22nd April 2013 & 19th September, 2016
LUANDA, J.A.:
On 21/12/2012 we allowed the appeal lodged by Godbless Jonathan
Lema (henceforth the respondent) in respect of Civil Appeal No. 47 of
2012, set aside the decision of the High Court (Arusha Registry) which
unseated the respondent as a Member of Parliament for Arusha Constituent
and declared him as a lawful elected Member of Parliament. The above
named applicants have come to this Court for a .review. The application for
review was made under Rules 48(1)(2) and 66(l)(a)(b) of the Court of
Appeal Rules, 2009 (henceforth the Rules). After we heard the application
on 22/4/2013 we dismissed it as we were satisfied that the application had
no merits. We accordingly dismissed it with costs and certified costs for
two advocates for the respondent and the Hon. Attorney General a
necessary party in those proceedings. We reserved our reasons which we
promised to give out at a later date which we now give.
In this application Mr. Mughwai Alute learned counsel assisted by Mr.
Modest Akida learned advocate represented the applicants; Mr. Method
Kimomogoro and Mr. Tundu Lissu learned counsel appeared for the
respondent; whereas Mr. Vincent Tangoh learned Principal State Attorney
represented the Hon. Attorney General.
Submitting about refering the matter to a full bench of seven Justices
to rehear the appeal excluding those who first heard the appeal Mr. Alute
said they were making the request because the decision of the Court was
arrived at per incuriam in that it conflicts with its previous decisions of
the Court.
Responding Mr. Kimomogoro and Mr. Tangoh strongly opposed the
suggestion. Mr. Kimomogoro said Mr. Alute had mixed up things. He went
on, the powers to resolve conflicting decisions of the Court are distinct
from those of review. The powers of review are geared towards correcting
•>
errors which are patent and obvious. The suggestion made by Mr. Alute
is tantamount to sitting on an appeal which the seven Justices have no
such powers, the learned counsel argued.
On the other hand Mr. Tangoh said the Court has no such powers for
a panel of three Justices to submit to the seven Justices. The composition
of the Court which is empowered to hear the review is provided under Rule
66(5) of the Rules. Like Mr. Kimomogoro, he submitted that the Court has
no such power to rehear the appeal.
We entirely agree with both Mr. Kimomogoro and Mr. Tangoh that
the powers to resolve conflicting decision and review are quite distinct.
Whereas the purpose of review is to correct or amend errors which had
been inadvertently omitted and which if not considered will result into a
miscarriage of Justice, on the other hand to resolve a conflicting decision is
to declare which among the two decisions of the Court is correct. The
procedure pertaining the two scenarios differ.
3
In Mussa Arbogast Mutalemwa V R, Criminal Application No. 5 of
1996 (unreported) this Court said:-
" But it is dear that where conflict exists between two
decisions o f this Court on the same matter, the position
is not resolved by invoking the power o f review o f the
Court."
The Court went on,
"In the event a conflict does exist between the
decisions in the applicant's case and that of Stephano
Ndagizi and Another such conflict will be resolved by
constituting a full bench to consider the matter, in an
appeal coming before it and involving the issue at
»
hand, and to decide which o f the two views is right. As
there is no appeal before the Court now there is no
basis for deciding which o f the two views is right"
As for review the Court is asked to correct an obvious error on the
face of the record. In this case Mr. Alute neither did he point out the
manifest error on the face of the record nor did he show that the
applicants were not afforded an opportunity of being heard. Even if,
assuming there had been an error on the face of record, it was not shown
how it occasioned a miscarriage of justice. It was for the foregoing
reasons that we dismissed the application.
DATED at DAR ES SALAAM this 5th day of September 2016.
E.A. KILEO
JUSTICE OF APPEAL
B.M LUANDA .
JUSTICE OF APPEAL
S.A. MASSATI
JUSTICE OF APPEAL
