Civil Reference No. 7 of 2004
The applicant, African Barrick Gold Plc, was dissatisfied with a decision of the Tax Revenue Appeals Tribunal (TRAT) and lodged Civil Appeal No. 144 of 2018, which remained pending before the Court of Appeal. While that appeal was pending, the applicant separately lodged Civil Application No. 177/20 of 2019 under Rule 4(2)(a) of the Tanzania Court of Appeal Rules, 2009, seeking leave to adduce additional evidence in the pending appeal, rather than invoking Rule 36(1)(b), the specific rule governing applications to adduce additional evidence. At the hearing, the Court queried the propriety of using Rule 4(2)(a) instead of Rule 36(1)(b). After hearing both counsel, the Court, in its Ruling of 24th June 2019, held that the application was misconceived because the matter could be addressed at the hearing of the pending appeal under Rule 36(1)(b), and dismissed the application with costs. The applicant then lodged the present application under section 4(4) of the Appellate Jurisdiction Act and Rule 66(1)(a) and (b) of the Rules, seeking review of that dismissal, alleging manifest error on the face of the record and denial of the right to be heard.
Whether the applicant made out a case warranting review of the Court's earlier decision on the ground that the decision contained a manifest error on the face of the record resulting in a miscarriage of justice, and/or that the applicant was wrongly deprived of an opportunity to be heard, within the meaning of Rule 66(1)(a) and (b) of the Tanzania Court of Appeal Rules, 2009.
The applicant, through Mr. Kamugisha, argued that the Court erred by dismissing rather than striking out the application after finding it improperly predicated under Rule 4(2)(a), asserting that Rule 36(1)(b) was inapplicable because the TRAT decision under appeal arose from the Tribunal's appellate, not original, jurisdiction. The applicant further contended that the dismissal effectively barred her from reviving the matter, that the Court delved into the merits without a full hearing, and that she was denied the right to be heard, relying on Joseph Ntongwisangu and Another v. The Principal Secretary Ministry of Finance and Another and Emmanuel Luoga v. Republic to support the distinction between striking out and dismissal and the right to be heard. The respondent, through Mr. Tito, opposed the application, arguing that none of the grounds disclosed a manifest error on the face of the record, that Rule 4(2)(a) is a residual provision applicable only where no other rule addresses the matter, and that the Court had already determined the applicability of Rule 36(1)(b) versus Rule 4(2)(a) after full argument from both sides. He submitted that the applicant was properly directed to raise the additional evidence application at the hearing of the pending appeal, that the cited authorities were distinguishable since they concerned incompetent (not misconceived) applications, and that the applicant's refusal to comply with the Court's directive and instead file for review amounted to abuse of court process.
The Court of Appeal dismissed the application for review with costs, holding that the applicant failed to demonstrate any manifest error on the face of the record resulting in a miscarriage of justice, or that she was wrongly deprived of an opportunity to be heard. The Court clarified that in its earlier ruling it had not found the application incompetent but rather misconceived for being filed at the wrong forum, and had properly directed the applicant to seek leave to adduce additional evidence under Rule 36(1)(b) at the hearing of the pending Civil Appeal No. 144 of 2018, where the Court would be seized of the appeal record. The Court found the authorities cited by the applicant (Joseph Ntongwisangu and Emmanuel Luoga) inapplicable as they dealt with incompetent applications rather than misconceived ones. It held that both parties had been given ample opportunity to be heard on the propriety of the application before the original dismissal, so there was no denial of the right to be heard. The Court held that mere dissatisfaction with a decision does not amount to an error apparent on the face of the record justifying review, and that instead of complying with the Court's directive to raise the matter at the appeal hearing, the applicant improperly sought review, which constituted an abuse of court process.
The ruling reaffirms the narrow scope of the Court of Appeal's review jurisdiction under section 4(4) of the Appellate Jurisdiction Act and Rule 66(1) of the Tanzania Court of Appeal Rules, emphasizing that review is available only for manifest, self-evident errors on the face of the record—not for errors requiring extended reasoning or mere disagreement with the outcome. It clarifies the distinction between dismissing an application as 'misconceived' (for being brought at the wrong forum or under the wrong provision) versus striking it out as 'incompetent,' and confirms that a party directed to pursue relief through the correct procedural channel (here, Rule 36(1)(b) at the hearing of a pending appeal) must comply with that directive rather than seek review. The decision also underscores that being heard on the propriety/preliminary issue of an application satisfies the right to be heard, and that repeated or improper applications seeking to relitigate settled procedural points can constitute an abuse of court process.
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