19960516 TZHC Mwanza2

t-T· ' / IN 'J;'HE HIGH crtmT 0F. . . TANZANIA . ;t· (, (\ l ' AT Mi't'i.NZA. REVISIONA.L JURISDICTION (Mwanza Registry) HIGH C0URT CIVIL REV!SICN Nf1o 30. OF 1995 {Original Tarime District Court Civil Case No. 8 of 1994 Before D. D. Malamsha, Esq .District Magistrate) 0 , • versus: GABRIEL P. MREMA RESFONDENT l RULI'NG MASANCHE, J • Mr. Byabusha, learned advocate, has sought to file an application supported by an affidavit asking this court to "revise11 its ruling made on 12th October 1995. I am not quite sure if Mr. Byabusha., learned advocate, actually asks for a 11 revisionir and not a 0 review17 • For a revision is done by a higher court - · a hi~her court revises the proceedings of a lower cotµ't.· It is the same court which will 11 review17 its own proceedings or. ruling or judgment. One goes to a higher court for revision and to the same court for revie.w. ,· r·am therefore of the opinion that MI:• Byabusha has wanted this court to review the ruling made on 12/10/95. 'lhe ruling that Mr. Byabusha wants reviewed is reproduced below: 2 ' I a IN 'IHE HIGH CC'1URT CF TANZ11.NI.11. . AT MJ."lNZll. ~ ..............._...-_~ HC CIVIL .".PPEAL Nr\ 25 CF 1995 (Original Tarime District Court Civil Case No. 8 of 199~) Ti\RIME· DISTRICT CC'UNCIL • o • • o • • • • • • • • • • • • . . . . . . . . AJ?PELIJ\.NTS. VBRSUS: GABRIEL_ P. MRSMA . R :~SPONDENT RULIID. Mr Byabusha, learned

advocate, has been engitged by the appel.lants, the Tarime District Council, to pursue this appeal. The appellants have, in fact, lost a case in the District Court of Tarime, at T.:.u-ime. Before, however, I had to listen to.Mr. Byabusha, learned advocate, I asked him a question whether some proceedings, which I will reproduce below, did not amount to proceedings which have ended into a consent order. Of course, he said they were not • . Here are proceedizms which took place in Court, in T.Qrime, before :the learned d:i,st;rict magistrate, MI:• Malamsha. They read: 11 10/4/95 Coram: DoD. Malamsha ... DM Plaintiff: Present I · Defendant: Pres(tnt . -=-=-i.~...-...- Plaintiff: I pray for execution of the _Ruling as the application to set aside the said Ruling was dismissed on 6/4/95 • . Defendant: -- I Represepted by Mr. Bigatnbo _(DED) your honour, I pray to pay the • decretal amount on inst~lments, I am .r . 3. .:. ready to pay the first insto.l.rnent on 13/4/95.,,. shs. 2,500,000/- followed a mon-e'hly instalment of shso 300,000/- w.e.f. July 1995. Plaintiff: •er-reset•-~ I have no objection. I pray the remaining balance be paid on interest. ~~: Both parties have consented for the · Payme.nts on instalment as shown o.bove. The same to be fulfiled as prayed. Sgd. D.D. Malamsha -.DM 10/4/95 I certify that this is a true copy of'the original. $gd 0 D.D. Malamsha., DM 11/4/95:

1 Mr. Byabusha tells me that there is no consent of anything there ·and, that is why he-is, appealing ·against the ruling of the trial Court - - ruling w~ich is dated 26/1/95. I w~ll not interpolate ,on the matter there is no need. The proceedings I have quoted above, have ended into consent orders: The law provides ,, that there cannot be an appeal against consent. 'orders, unless there is 'an allegation (and it must be a ·serious allegation) that the consent orders were obtained b y ~ • In fact, the consent orders given on 10/4/95, even go further to give modalities for the payme.nt. It was payment by instalments. Again, ~ the law-has it that.an order providing for payment by instalment is not appeallable ( see the case of ~~e£._]2~i,.~~~d · So~~•-,9~~~~~~~~~1}; Haji DSM Civil Appeal No 30 of 1967 -- not aw·are if reported: George CJ, was ,interprating Order 20 Rule 11 of Civi1J>!:oc2,,<1.~e Code 1966) If I may go back to say something more on consent orders, In Hirani v~ iassam (1952) . 1 XlX EAC 131 there is a passage from Seton _.,,_..~~~ . . on Jud.gments and Orders, 7th Edition Vql 1; page 124 whi_ch, -ene Court of Appeal for Eastern Africa has approved. Th~ ~assage says: . • ••/4 • 4 nprima f:\cie, any order mo.de in the presence md with the consent "of Counsel is binding on o.11 the parties to the proceedings o~ . section, and on those claiming under them---- and

cannot be vnried or disch~ged unless obtained·by . frnud or collusion . or bo". an .agreement contrary to the policy of the Court - - or if the consent 1;./ns given without sufficient material facts, or in misapprehension or in ignorance of mo.terial facts orin ge,neral for a reason which would enable the court to set aside an agreement 0 . 'Finally, the Civil Procedure Code 1966, in Section 7(J, (3) provides ·as follows: It aays ii No a,peal shall lie from a· de.cree passed by the Court with the consent of parties. :1 . After saying o.11 tho.t 1 I am of the settled vie.w that the appeal by Mr Byabusha is not tenable at lawo It is struck out as incompetent in law. It is struck out with costs. · SGD. J .E.C. M1\.SANJHE 12th October 1995 JUOOE Appellants: Mr Byabusha - absent I. Respondent: present in person. 11 N:iw, I want to mnke the following observa~ions about review, and these are observ.-;;tions made by R.D Ag.3.I'Wala, in 11 Tit~_Q,;v;,;~~ ~ - a .Q,~mmeztti:!'i, - 3rd edition: The author says: 11 -- ' It is• well settled th,'lt the power to review is not an inherent power of a judicial officer but such a right 9a.n ol]ly be conferred by statute. Ii •o••/5. t l ,,_. 5 A review is practically the hearing of an appeal by the same officer who decided '· · the case• ii ;1_ The judge cannot .set aside an order made by another Judge of the same co~t, although- it may be wrong11

• :1 . - - - - A court is not entitled to review its order without notice to the other side. 11 ll _.._ - Discovery of fresh evidence.is not ground for review 'in second a'ppealn i, _ An error of law is not sufficient reason 11 - - Any other. sufficien,t reason must be t"aken ej_U!?.,~ll!. ~r!!!!:..is with the clauses proceeding. a 11 -- The person who wants review should at least ~ prove strictly the diligence he claims to have exercised·D.nd also that the matter or evidence which he wishes to have access to i•s, if not absolutely conclusive nearly conclusive of the matter. The applic~tion for review cannot succeed on the_ ground of discovery of new and important matter.or evidence which after exercise of due diligent', could not be produced at the time of passing the decree 0 11 . II The ground for review must be something which existed on the date of the decision of decree· and not subsequent to the date of the decree." 'A court has jurisdiction.to decide wrongly11 Incorrect interpretv.tion of law is not nn apparent mistoke on the face of the record.a •••/6. ..... - - n_· An er:ror of law is .IlQi sufficient reason. for granting review 1 . "-- A party ought not to be allowed in review to raise a case which was never ra.isec at the trial .and on which no evidence was adduced•" ii - --Ground for review must be in existence on the date of review" ", 11 - When appeal is

preferred revie"w is out of ~'uestion and the partys' procedure is .to apply ·. to the appellate court to admit additional evidence" n - When an applicati~:in for review is ordered, the judgment sought to be reviewed is not set aside, but only held in suspence until the case -.- has been re-heard. 11 . lt i~s, however, important to know exactly what· in law is review and what in law is a revision. The two are not il;tE;_.rehangeabl~ nor(si'N. ?they ~ Now, in the instant application before me, a review \"1'.ould only lie to me if there is an error apparent on the face of the record GI" in ·rrr:, ruling dated 12/10/95!9 I see none ·in the record. If by way of postscript: The gist of my ruling made on 12/10/95 is that there could not be an appeal from the proceedings of the lower I . court, as on 10/4/95 both parties had recorded a consent . settlement. And that if that was so, then there could be no appeal unless there is strict proof that the consent order was arrived at by fraud. That is the·fardfact, . and one would expect that this hard . fact~ommunicated to-Tarime D:iistric~ Council by its advocate. It mn:y not be out of place if I could quote some ob.!;ervations made by Mr Mark Bomani; · the. Chairman of the Legal Task Force in a t:peech Mr Bomani was presenting the Report of the !_ask Force to' the M:inioter of Jus'tiee and Conati tutional. ':.-, Af'fa.il:"s on 15th March

1996. In saying somethizi&\about advocates·and the . \ unpalatable aspect of their work, he said: ~ \, . \. ',.\ • •••• I 7. ' ' ..... ':-....I '- If'' ""'~·- . 'l-.. . , . ..,, ' ..., .) if: - 7 - ·n Advocates have to ;-emember that they are ,. officers_ of the Court, fi':pst. so, ~heir main duJ;y is to advance the cause. of justice1' Their re5ponsibility to their cl~ents comes seeond. Advocates must advise their clients. ' ' . fr~L2!12-E.C?...~§.ify_~~~v.e ·t:_he~-~q_✓i2e t);tat ~ey think t~Lli~~ t()_h~ ( o ~ supplied) Having said all that,I have said, I am satisfied that this application is devoid,of any merit. f '· It i~ dist;.is~~_costs. ,,,,,_, ~ ·. \Jl. .}_· j_; . . ------,--...._ ·. ~-. . ,_. •~-'~/_..·~f;:~~l•· .. · •. ... r> Is.:. ·;~_ ~ . i~). b? i~"';'~-~' ·. ,-, ,~·, \"~ 'l-';:'i;t_..1.}' ~....• . '· ,,.1-_;_;.- . / . . _____,..,' ' i >·4->I'~ ~ "0 ,• .l,-1; \• " •;ii;-~:"-!). .... , ·r . !¥;&-.~, i~};l / ~i . : -,/"'i ~ -. .. ,_. . • .,, i ,.._; ...-:, ,. T !.,T MWANZA JO i:J. CO MASANCiiE 16th May 199 ,, . ~ 4 "' 1 /,(~j_ . . JUIXiE \~>· ~ / I -- Parties:· Absent·.,..,...._., , . ..,:/- ~ .\, / - ' ",