19991216 TZHC Dar es Salaam 1

... i:- -~ ; •; , ,:; ~"f • ma~i·,·1···c:.,. ..Ll •.-..~•:·r;" :1..a.t.i. r; \..L!'-1- ._..,...,.. . . . n- 0"' .L 'I'tJ·iZANIA I\ ,, ..,...' P- .i ,, . 1 . .. • . ' •· · AT. DAR Es·~ SALitA.t-1 ...... 'ff -~ \. f "'. '·. • ''"' ,. . !' .. i ..· r~ •..,t;E_I~L BEVISI?N NO.·7 OF 1998,1 ' ( o'r:i;gintl · 1~slitu Resident Magistrates s. Court Natri,tnon-ia.JJ•i:atBe .Na. 61 of 199 6) • ,.,.. .RUKIA SADIK[ 1 ~ o o • o o. o _ o_._._._._._•_Rl_SS_P..,,O,...r_ID_EN....,· 1__T -· ., • • o • • o •. o o · o • • • • • • ...

R L I N G . .. S1.JBJEC~; 'Revision of the .Magistra_tes Court:::: Order; :Lu !fatrtnonicl ~, ·,n . Cause No. 6'1 01" 199G· ·•.\- • "".;., ... ;- . . One p.ili;\JI AMIRI S:illJ:iu, hence to be called the ,/..J)plicant perei:n ;· ha..s • •" I t~ough his Advoca_te Hr. Tas:Lirna, filed this. :3-ppLicatton' s,;:pported •by .:..ffida•":i.·,~ . ( _. ~-Peking·· the revision ' of Kisutu Resident Magistra:t_e 1's Court Order . . 'I .:1 , ... .delive:i:-.st'i. on the Yl/101 1997 compl2..ining: .. . ' ~ 1• That the• trial Court, proceeded· to hear. tlYe ca..s,/ 'des.pit e ' . his compJ.ro.-,.'1t~ that so long as th~ petitioner had no_t_ gone thro1,1gh the Concililtion ~_card, it ha.d no Jt1ri_sdiction. That the trial. Magistrate, wrongly hel.d the hQUEe. \.O be a me.trimonial. -property,; 'fh.at .._~:.3 Courts order, th.::..t the- petitioner Ji..11.ould occupy :-:ouse 1 and the aP,plicant the other is .a.:.--i impracticable order, and irregular. .

4. Tr-at the order, that he ::;!lould. ma:intain the petitionor, until she re-IU?.....rries, or dies, ha.s no legal justi_fication • .:~ • Tr.e fa.cts of this case, just cover a very narrow compass, th·ough • <-.-_ ... • • ~- .compa,;tJ.:,• r.ignifica;i;.t. ':l1.ey are "'·°: foll.ow:::;. The •al.1.elu.ia .songs sang, 1.n ·1973, when the parties r.::::..rried under Islamic rites in·that yea:r, d1d not last lo:-ii;, the parties marriage, th(?tJ.gh well blessed ,,,_ith six cl1_ildren,. wear . and tear scan invaded the said nurriage, -·abuse, phisical ~d mental t~rture dominated and the prone:::.s of marrying many wooen, being alleged against the applicant. Ho·.:.:·rer the respondent filed. the pe:t;ition fr,r divorce, the trial without the framing of issues, took :i.ts course, und at· the ,;:nd of ~he d~y , .. t_he trial Magistrate all!.de c~.ny (6) o:::-ders~ but according to the applice.nt~ the ~ffending ones -we:::-o a.'3 fol.low~: • I : " . 2 • no problem 2. That the respondent be allowed to occupy onz part of the house, and the respondent the second part of the house. no problem 4. That the respondent, is ordered to maintain all children of ·marriaget and the petitioner till she marries or dies. 5. •••••••••••••••••••~••• no problem In reaction~ to the above the respondent raised a preliminary objections~ hich. parties agreed to prosecute, and defend by way of written

submissions, ':i.,. were accordingly filed. The respondents objections which I consider ~tb __ al and relevant here, were basically that:-1- the application for revision c:1.s time barred, as per Part III of the First Schedule, para 21 of the Law f Limitation Act No.10 of 1971 sixty days had gene by and -2- that the pplicant has improperly involved the revisional powers, of the High Co1.1rt, ;1ereby circunventing the appeal process. However, the respondent went ·Q~ther and argued 1 the oerits of the applicction by the applicant. t--~. ·a.slima on the other ha."1d, equally noting that the respondent expanded her erritory, from the preliminary objections into the arena of·me:i;-its, the ,pplicants application, and has'accordingly like the respondent, c~vered both 1' :Teas. t--~. Taslima submitted first that-, -1- the applicant was served with /· tpplication on the 5th March,· 1998, she did not respond till 20/11/1998, v,hen ;i1e nid with her notice of Preliminary objection. 1 and that being more than ,:i,_ day the entire defence should be rejected, -2- that the applicants i.pplication, for revision was not time barred, as the applicant was inviting :he court, to invoke its inherent powers, under Section 95 of the Civil ">rocedure Code ,.citing the case of NBC vs JACKSON NAHIM.!\.vJA SINZOBAKWILA ( '1978) 'L..'{T No.39. He added that, the law not only does allO\v revision

u."'1.der Section --9(-i) of the Code, but too, Section. 44(1)(b) of the Magistrates Court Act, 981~ does allow revision, beyond Jurisdictional areas:-- citing the case of ;pJ3RON PANGEMALEZA vs JOACHIM KIWARAKA .AND ANOT"cJER. (1987)TLR '140, adding ;hat even though the case is appe·alable the High Court, has held that the High :ourt po•11ers of revision, was not limited to cases from which no appeal lies, - citi:n 6 HRS MALEK Po MJIJJJI vs MRS HAMMA M. HIZAN ( 1969) HCD No.272 a..'1d HA:.U A.ND OT.!-IEP.S Vs DHARAMSI AND ANOTHER ( Revision No. 7 of 1965) o I .shall now.take the Judicial floor to consider th~ asp~ct by the parties .nd in so doing, I shall deal with.the preliminary objections by the Respondent ,n.:i the applicru.t. ·' • 3 • s I prooeed, I shall always heed 1 not to put the cart before the horse, VMl if the order of the submissions seemingly over lap. It was the •eaction of Mr. Taslima for the applicant that the respondents total defence _ncluding the preliminary objection be rejected, or ignored, because, it .,:).s .claimedly ·filed· over sixty days after, without the leave of the Court. ~ia.ving· examined the record, I do not think:, that, Mr. ,Taslima is being fair to the respondent. For while I concede, that the ay.>plication was filed on the 5/3/1998, and thereafter the same Hr. Taslima undertook to effect service on her, it was not till 20/5/1999, when he

confessed to have been served with a Prelimi."lary objection, when in fact, the preliminary objection, was filed on the 20th November, 1998. His :failure to disclose as to when he was oerved, deprive$ us a base, of computing the time against hcr, and ! . tlt ..:efore blame her, a,.YJ.ci I would not attach much weignt, to this objection it v:ould appear the guilty might be ·condemning the innocent,,. On heels comes, the respondents objection, th,it tile ap1)l:i.cation for re.vision was time barred. In reaction to this, :Mr. Taslima seems to have been equivocatingo I shall here put into inquiry, the order complained against. The said order, Ha~ delivered on the 31/10/1997, in the presence of the parties, D..."ld z.ppeal rights accordi.r1gly explained; a.."ld yet this application was filed on the 18/9/1998, over a ye2.r after the decision was delivered. But it is significant, to note that under Part III pa.ra 21 of the-First Schedule to the Law_of Limitation, 1971, the period of limitation is sixty days, after which the law vide Section-3 mandates, that the application be dismissed, though for sufficient cause, the Court can condone ··_- - ·,lay and extend the date. Whatever are our wishes here t it is as true as the sun rises from the east and sets in the west, thut no application for condonation of delay, and extension of time was ever filed at all. I shall therefore not

instigate -the issue of extension of tir.ie now, but agree with the respondent. Hr• Taslima·was to save the day fast on his feet, to submit, that the applicant~ was actually/~ocking at the door, so that the High Court opens its _gates of its inherent Jurisdictiont to exercise its revisional power under Section 95 ,.. · His,· 'was a contention that the case for invoking inherent power knew, no limitation peric d. 1 I would have declined the invitation if the greater part of the sprum of the case did not show features, that rendered the trial Courts exercise of Jurisdiction a nullit~ 0 I shall demonstrate the areas involved as I move. The question is, now, whether, the invocation of inherent powers, is subject to the Law of Limitation? Mr. Taslima 1 cited no case to-support the proposition, that the invocation of Jurisdiction, is not affected by the Law of L:Lmitation, ,here and when- it may be nacessary for the ends of Ju...c;tir.e. C' • 4 • 'J: cannot a.void conceding that the in.-ierent powers Jurisdiction of the ~:ourt Court, is meant for.-•thc Court to ac~ ex debito justicie, i.e. they -c.ee such powers, as are meant to enable the Court, to pass such orders for , .:,e ends of justice, c.S may be neces&U'y, considering the rights which are c·:mferred upon the parties, by substantive lawa In tl·:is lii;ht, it does not ,1 ppear. consistent with justice, if t:1e Court fails to

correct an injustic_e, .s:...mply because of lapse of time, and where the other pa!"ty ca..."1r..ot be sa·id to ·be prejudiced. Having, eve1:. further considered tr:e matter, novel as it is,. and for assura..."'lce, the case of SAN.O..R Bi:HJIYA PliD OTEEES vs KP.?IL KUM.AR GAUTAM AIP 1974 PAT 289' opportunely comes, for buttressing the above view, - page 290 the Court observed: ::Therefore an application invoking the inherer;t powers 'if tbae Court under Section 151, was not covered by limitation. Counsel put reliance on Article 122 of the New Limitation Act, wl"!.ich by Article 181 ( t:1c New Article 137) or ::my other Article of the Limitation Act. I respect!11.lly agree: with the views expr·essed, in the said decisio:1. After coming to the above conclusion, their Lordships hO\·tever, further obse1;ved, that there was no limitation· for -invoking the irL':erent powers of the Court, under Section 151, a party invokin:; that Jurisdiction, must be diJ.igent, and not be i;uiJ.ty of laches. I may also refer to a Bench of this Court in tlle case of V.rs Minnie Lal vs Ma11adeo Lall, Air 1949 Pat 112 •••oa••••••••••••• a question of limitation was raised on hebalf of the respondents. It WaE ultimately held that, the application was not under XL Ru.le 19, but under Section 151 of t!1e Code which pr.-')serves the inherent power of the Court, to act as ex debito justicie. It has

clearly been held, in the said decision that when a Court, is called upon to exercise its iuherent pO\·ter, that power, is not affected by the Le,w of Limitation, a.s the Law of Limitation relates to, the action of the parties, but not to the action of the Court, and the mere·fact, that one of the parties makes en application asking the Cota't to exercise that power, will not render the action of the Court, subject to the Law of Limitation. ' . -. . •· From the discussion above, I do not feel any hesitation, in coming to the conclusion, that no '. period of limitation was applicable, to the application made by the plaintiffs opposite party und.er Section 151 of the Code. But at the sarne time, taking support from the view expressed by POORANCHAD 1 S Case AIR 1962 Mad..11. Pre. 64 (Supra), I also feel inclined to take the vie,:, that although no period of Limitation is prescribed for such an application, and a party is entitled to-ask the Court ~or invoking its inherent Jurisdiction, he must be diligent, and not ·guilty of laches, and make an u..'1.reason~ble ~elay in approaching the Court, otherwise it is likely to create great injustice, and harrassment to his adversiary. I am also supported in the above view 1 by a Bench decision of the Co.lcuta High Court in the case of DES\-/AMATH vs . AMAR NATH AIR . 1962 Cal.110. In this case, however, the application under se:ction 151

of the Code, w2..s made only after a period of about seven weeks, which does not appe,:rr to be ur...ree.son~tly belated. In my view, had the defendants J...'e ti tioners raised a question of limitation, in the tritl Court, the plaintiffs opposite party miGht have been called upon, to expl3.in the circumstanc·es, if any, for alleged late filint; of the application. 11 The above case, is interpretative of Section 151 of the Indian Code of -::i vil Procedure 1 identically worded as our Section 95 of our Code. Therefore in par materia. Taki_-rit; .seriously, t:1e e:rudi tion e...s expounded in the above case, I arn left heavily persuaded by the: approach. I have ther~-fore no hesitation in concluding, -1- that when a Court is called upon to exercise its inherent power, such power is not affected by law of limitation as limitation affects the actions of the parties, and not of the Court, -2- that a.riy party has liberty to apply to the. Court to invoke· it_s inherent power, -3- that the party praying to invoke i~s inherent powers 1 must have been diligent and not been a victim of laches 1 as to prejudice- the opposite party. Let us apply the above to the case at hand. It does seem c:..s truelly, as pointed out by the respondent, that althour,h the ruling was delivered on the 31/10/97, the present application '-las filed on the 5/3/1998. Mr. Taslima -invites me to revise such a

case, so belated and without explanation, • 6 • as to wh~t transpired as t0 occasion sue;h a delay. I clo not need tn / over'.""emphasise, that the High Court is mere likely to refuse to invoke its extraordi.'1.ary power A, if there is such ne5li 6 ence, in act ion, c-r O!;;mission, on the part of the applicc:nt, to m6.ke an application promptly as take?: in conjunctio:r: with the· lapse of ti1:ie, c::.nd other circ,.lll1stances, cause prejudice to the opposite party. I .?J!l in the circumst~ces reluctant, to exercise my Judicie.l indulgence, but for aspDcts tha~ conspicously appear cle.:u-ly to ce deliberate trans&--ression of tn.e law, that pert3.in to the Courts Jurisdiction. It is on record to be seen, that, the petition for divorce H.::i.s filed on the 13th day of August, 1996. The petitioner appr~ci,..:.tiog that refcronce of matrimonial problem, to· the Conciliation 3o.'.;l.X'd, \·:as 8.. condition precedent for exemption from such reference, for re~sons of irreccnciliability, though purport0gly under Section 101 ( a) and ( f) of the Law of Marriage Act, 1971. The applicution sb.ow.s it wns pt....rportedly hearc.l by i•l.rs., Kiw~1go., in - the presence of Mr. Erio Advocc~te rer--,ds: Temporr.i..ry Injuction 1:Jhereas tJ:-.e npplica.nt/i'eti tioner proys for: ( a) leave be granted, to the z.pplic,:mt to lodge petition or divorce, without Certificate of irreconcilibility

from the reconciliation Board. (b) An injunction to be issued again.st the respondent and/or his age,,ts not to harrass in e.rr·:r,,:ay the petitioner or to te:-::per ,dth l.Ja-trimonial property• (c) Costs to follow the event. This application co:ning on the 15th d.2.y of August, 1996 before Hon. Mrs Ki,ia;1ga Resident i'·lagistrate in the presence of Mr. Erio, Advocate for applicant w":.d in the presence of the Respondent. T:i-IIS COURT ORDERED THAT: The respondent is hereby ordered not to derJolish matrimonial home nor harrass the petitioner until the matter is determined by the C0:.:..rt. G:i,ven under my :1a."1d and Senl of the Court this 15th day of Aug-~st, 1996. Sgd: •• ·-" • 0 • • • • • • If/ • • • • • SENIOR :.rtESJJ)}:;j•;'i' ;·,IAGISTRATE But is is a stra.vige curiousity, that the relev2..nt record, only shows that it wa,s only the injunction that wns sought, on t:1e 15/8/'i996, a.'1d obtained, a,s indeed the order above holdly vi1:dica.tes. -.;\ut in the record, there is a document, •·•BARA?,,~ lJ. r:j:;l.JL~, ..... ~.--- ;;uQ,". LA Kt.}iISI·IriA \//, rn,·T:\HI WA J:HIII Ref. Nob UJ/3U/1158/96, dated 18/9/1996, addressed to the Resident .Magistrate, materially confessing its inability to ·econcile the parties. From the e-bove, wh2.tever the· respondent failed. to do, or fulfil, the above letter, and the order above reproduced shov:, co:1.'3picuou.sly th:?..t; the

parties nevE;r, referred their r,E,tri.m.o:nia1 diffi.cult;:r, to th(flt Cinciliation Board before petitioning for divorce, nor was the petitioner exempted from so doing, on'- any of the grounds, ·in provi.so to Section '101 of t:,e ?fiarriage -1 • Act, 1971. \-!hat ti1en is the legal Rce11erio creHted by the relevant party's omission, to refer the matrirr,o:--aial difficulty to the Board? The question needs no m2.gic to ansvier. The answer resides in t:F: provisio:i. of Section 10,, of the Marriage Aeft, 1971, which stipul-s,tes thf,.t 1 1..mles:::; the proviso prov:i.Gions intervene, -1- no person sh;:.1.ll petition for d.ivorce, unless he or sl1e, has referred the M""trimo:1ial problem to the }303.r-d, and -2- and the Board has certified tl.l.:::,t it has failed to reconcile ttie parties. It is v:ortt observing, that the Section used t:he word · s 1:all'•i, ar,d it :i.s a. rule of 1 statutory interpretation, that wl-cen a statute uses the word ·'s'.-:all·' prime::. facic, it is m.3.11datory. But I would p-::r~:aps hurriedly ndd, t!':.at su.oh use of word, may not be ci.lwa:/s be conclusi vc, for I think'k,_ whether the requirement is mE-21datory or not, the Court must cl.ecide it, not "by cor.sider- ring the word, in isolation, but on the purpose for which the rec;uirement has been enacted, p-:1.rticularly in context of other provisions of the Act,, the general scher.ie of

it, whet:1er the requ:i ::.·ement is insisted on, as a-· protection for the safe guardir:.g, of the risht of important institutibns, or libery of pe::.·son, or property, \vhich tl1E.: c~ctior.. might invoke - sec . -~ ---- -----·-- - -·-- -------- - re~s:L\V.:'.i. COLLSCTOR OF nONCHYR VS ... FlV1.S.\O G(Et-;l(..:._ ( 1963) IL~Cfi 98. --- ... ~------- -----· - --- ...... _ ·-·. --· ,,... And it is trite law, the m2..ndatory provisions, have to be obeyed strictly, obeyed, or fulfilled exactly. involves This section, with due res?ect / I-!arriage , a very important institution, the embryo of a' n:.:a.tion, it cc,1mot be c.llowed to be experimental nor 0:1. i:i.stc:nt taste abandon it at will, it is meant to be permanent even i.;...'1t.il Godputs the parties asunder. It is in that sense, that the policy of the LfavJ is of ti1c vie1-1, that the Concili,:,tion Board, can SE:lvage some Ma.rriages, and hence the ma..'1daLory provisim:s, to refer· m.:-,.trirr.o!'lial difficulties to the Boards, u.--iles circumst.:,:.nces m&ke it impossible. 8 • :,. V Thus fa.ilure to refer the matrimonial diffiv'ilt to the Board, to get •0 certificate ·that, it has failed to reconcile the parties r.1:-::.kes divorce incompetent. --- __ See the case o"f SHILO MZEE --- .......,_, ____ - ..... vs :i.<\\•fUf-'1.:\ AHI~H£D--·--- ---·· ----( 1984) TLR 112. Equally important i.s the quest of divi.son

of m~trirr.onial- property, the • ~ husband left to stay and live i~ one part. of the: house and the divor<f3e to ~A~+ve in ar1other part of the sa.-;ie house, amounted to no division at all ~~- ,ms like planting seeds for pe1·petual r.iisu_ride:::·stc..ndings. It must be ,\properly defined and diVided among the parties. Division of matrimonial assets can only be seen to l:<!.ve been done by the Court if the Court is seen t~ have Judicially d.irected its mints; to ti,c provisions of Sectiora 114 of the Marriage Act '1971, In this case the rn::..tter appe2..rs conspicuous for the non.;..application of the 3et::tion~ It h.2.s to be done to pe1."petuate pe~ae between the parties. From the aforegoing it seems clear, that the so obtained divorce v,e.E incompetont nnd it is so declm-ed. The parties are a.dvisecl to follow the law, the sooner the better. Each party to bear its own costs. Delivered this 16th day of December, 19994 Judge .~-. Partie6: Pre.cent ·on pers.c::i. - for tl::..B :~:;,µicnnt :~bsent For the Respondent E.VI. Kr.i.titi Judge 'i 6/;2/1999 I C~rtify that th.is is a true copy of Origintl. ,. 1