civil revision no 8931 of 2024 Chimbiyangu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL REVISION NO. 8931 OF 2024 {Arising from the decision of the District Court of Temeke at Temeke One Stop-Judicial Centre in Matrimonial Cause No. 1397 of2022} ALLY SAID CHIMBIYANGU APPLICANT VERSUS MARIAM SAID KANYOLI................................................................... RESPONDENT RULING 12th July & 27th August, 2024 BARTH Y, J.: The applicant moved this court under section 79(1 )(c) and 95 of the Civil Procedure Code, Cap 33 R.E. 2019, also section 44 (l)(a) and (b) of the Magistrates' Courts Act, Cap 11 R.E. 2019, seeking against the respondent for the following orders; 1. This honourable court may be pleased to call for and examines the records for revision in Matrimonial Cause No. 1397of2022 of Temeke Primary court before Hon. S.S. Kagaruki RM and Matrimonial Appeal No. 126 of 2023 before Hon. R.E. i Mwaisaka SRM of Temeke district court at Temeke at One Stop Judicial Centre, so as to satisfy itself as to the correctness, legality and propriety of the said decisions. 2. Any other relief(s) this honourable court may deem just and fit to grant. The chamber summons was supported by an affidavit from the applicant, who detailed the reasons for consideration by this court in determining the application. The applicant stated that he was the respondent in both matters; before the primary court of Temeke at One Stop Judicial Centre (the trial court) and the district court of Temeke at One Stop Judicial 4 Centre (the first appellate court). The applicant is claiming that there was an illegality in granting the respondent herein three acres of farmland in Kibaha, which the applicant had acquired before the marriage. He further asserted that there was no evidence or consideration that the property belonged to him and his first wife. The applicant also deposed that the court had disregarded the presence of his first wife and had failed to properly evaluate the evidence. As a result, the decision to classify the farm as matrimonial property was tainted with illegality. 2 The application was contested by a counter-affidavit filed by Mr. Dickson Matata, a learned advocate authorized to swear an affidavit on behalf of the respondent. He argued at the outset that the application for revision was untenable, as revision is not a substitute for an appeal. Mr. Matata further contended that the trial court had properly analyzed the evidence presented and rendered its decision. He insisted that there was no illegality in the court's decision and emphasized that Doroth Nguga, the applicant's first wife, was never a party to the case and had no involvement in the division of matrimonial assets. By agreement of the parties, the case was heard through written submissions. The court also directed the parties to address the propriety of filing for revision instead of an appeal, as well as the grounds for appeal. Throughout the trial, the applicant was represented by Mr. Jonas Kilimba, a learned advocate, while the respondent was represented by Mr. Dickson Matata learned advocate. In his submission on the issue raised by the court suo motu regarding the propriety of this application, Mr. Kilimba argued that both subordinate courts had acted with material irregularity in treating the farm land in Kibaha as matrimonial property and dividing it between the parties. He pointed out that the evidence, which was uncontested by the respondent, clearly 3 indicated that the farm was acquired by the applicant and his first wife, Doroth Nguga. He cited Section 79(1 )(c) of the Civil Procedure Code, Cap 33 R.E. 2019 (CPC), which empowers the court to call for and examine the records of subordinate courts where illegality or material irregularity has occurred in the exercise of jurisdiction. He referred to the material irregularity highlighted in the affidavit, namely the division of the farm in Kibaha to the respondent as matrimonial property. Mr. Kilimba further argued that the decree of the court was inexecutable, as a portion of the farm had already been given to his sons, a * fact undisputed by the respondent. He noted that the court had awarded the respondent three acres, leaving the applicant and his former wife with an unknown portion. He argued that this uncertainty made the matter fit for revision under Section 44(l)(b) of the Magistrates' Courts Act, Cap 11 R.E. 2019 (MCA). In supporting the grounds for revision, Mr. Kilimba adopted the applicant's affidavit and reiterated his earlier arguments, emphasizing that the farm in Kibaha was owned by the applicant and his former wife, and the court's decision to classify it as matrimonial property was incorrect. 4 He referenced the evidence presented before the trial court, where the respondent admitted to having found the applicant with the said farm in Kibaha, which they later expanded to 25 acres. This fact, he claimed, was disproven by the applicant during the trial, and the respondent failed to provide any proof of her contribution. He cited several cases, including Registered Trustees of Joy in the Harvest vs. Hamza K. Sungura (Civil Application No. 149 of 2017, Court of Appeal at Tabora) and Paulina Samson Ndawanya vs. Theresia Thomas Madaha (Civil Appeal No. 47 of 2017), where the courts required parties who make allegations to prove them. He emphasized that the respondent did not prove her contribution to the acquisition of the farm in Kibaha. He also referenced case of Gabriel Nimrod Kurjilwa vs. Theresia Hassan Malogo (Civil Appeal No. 102 of 2016), where the court relied on evidence to determine the extent of each party's contribution, aligning with Section 114(1) and (2)(b) of the Law of Marriage Act (LMA). Mr. Kilimba argued that the trial court did not consider the law and failed to ascertain the specific size of the farm to be divided among the parties, instead merely awarding the respondent three acres. He, therefore, requested that this court grant the prayers in the application. 5 In response, Mr. Matata countered that the applicant was seeking to revise the decision of the lower court, which had divided the farm in Kibaha— a property the applicant claimed to have acquired before his marriage to the respondent. Mr. Matata argued that the court's decision to divide the Kibaha farmland did not constitute irregularity. He asserted that if the applicant was dissatisfied with the court's decision, he had the right to appeal. He emphasized that an application for revision is only appropriate when there is evidence of illegalities, irregularities, incorrectness, or inappropriateness in the proceedings or decision of the court. •4 Mr. Matata stated that revision is not an alternative to an appeal, citing the case of Ramadhani Myelele vs. Hamadi Ally Islam (Civil Application No. 40 of 2022, High Court at Morogoro), where the court held that revision is exercised only when there is no right to appeal as a matter of right or law, or when initiated by a person who was not a party to the case. The court also stated that it cannot re-evaluate the evidence presented before the lower court. Countering the arguments for revision, Mr. Matata explained that after marrying the applicant, the couple moved into his house in Sinza, which they further developed, including other properties in Kinondoni Lindi and the farmland in Kibaha. He argued that during the 30 years of their marriage, the respondent had contributed to acquiring and developing matrimonial assets, including purchasing additional acres of farmland in Kibaha, bringing the total to 25 acres. He insisted that the respondent, who was also employed, had a significant role in developing these properties, making them subject to division as matrimonial assets. In conclusion, Mr. Matata prayed that the court uphold the decision in Matrimonial Cause No. 1397 of 2022 of Temeke Primary Court at Temeke One Stop Centre and dismiss the application for revision. The applicant did not file his rejoinder submission, leaving the court to determine first the issue raised by this court suo motu before determining the application at hand. The matter before this court involves an application for revision filed by the applicant, seeking to challenge the decision of the lower court. The respondent, through her learned advocate Mr. Matata, has opposed the application, arguing that the applicant should have pursued an appeal instead of filing for revision. The court therefore invited the parties to address this court on the issue whether the applicant's decision to file an application for revision, rather than an appeal, is proper in law. 7 It is well established that the legal process of revision is not intended to serve as a substitute for an appeal. Revision is a remedy provided by the court to correct any material irregularity, illegality, or injustice that has occurred in the proceedings of a lower court. The primary function of revision is to address errors that are so fundamental that they result in a miscarriage of justice. It is not a mechanism for reconsidering the evidence or re­ evaluating the merits of the case, which are the province of an appellate process. The distinction between an appeal and a revision lies in their purpose and scope. An appeal is a continuation of the original suit or case, where the higher court is tasked with go over the entire record of the lower court, including the evidence, to determine whether the judgment was correct. On the other hand, revision is concerned with procedural correctness and legality, focusing on the manner in which the lower court conducted its proceedings. In the present case, the applicant seeks to challenge the lower court's decision by alleging errors in the evaluation of evidence and misapplication of the law. Mr. Kilimba had stated in his submission that the trial court magistrate had included the farm land at Kibaha in the matrimonial assets and divided it to the parties, claiming the farm was acquired before the 8 parties had contracted their marriage. Also, stating the decree of the trial court was not executable as it did not state the size the applicant has to get in the said farm after the share of his children and former wife. These are grounds that would typically be addressed in an appeal, where the higher court would examine the lower court's findings in detail. The applicant's arguments do not demonstrate the existence of any material irregularity or illegality in the proceedings that would warrant the exercise of this court's revisionary powers. The respondent has rightly pointed out that the applicant had the opportunity to appeal the lower court's decision as of right. By choosing not to do so and instead filing for revision, the applicant has improperly invoked the revisionary jurisdiction of this court. It is also pertinent to note that the Court of Appeal in the case of Ramadhani Myelele vs Hamadi Ally Islam (supra) it underscored the principle that revision should not be used as an alternative to the appeal, except in circumstances where there is no right to appeal or where the interests of justice demand it. No such exceptional circumstances have been demonstrated in this case. In light of the foregoing, this court finds that the applicant has not properly moved this court for revision, as the grounds raised are more 9 appropriate for the appeal. Consequently, the application for revision is hereby dismissed. The applicant is advised that if he wishes to challenge the lower court's decision, the appropriate course of action is to file an appeal in accordance with the law. The application for revision is dismissed with no order costs. It is so ordered. Delivered in the presence of Ms. Mariam Taslima Learned Advocate for the Applicant, Ms. Bernadina Tayari, RMA and in the absence of the Respondent. 10