tanzlii ocr CIVIL REVIEW 3179 OF 2024 ASHA OMARI MATIMBWA VS SHAMTE RAMADHANI

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE

AT TEMEKE CIVIL REVIEW NO. 3179 OF 2024 (Arising from PC Civil Appeal No. 12 of2023 in the High Court of Tanzania (Temeke High Court Sub Registry) One Stop Judicial Centre Temeke) ASHA OMARI MATIMBWA............................................. APPLICANT

VERSUS SHAMTE RAMADHANI.............................................................RESPONDENT

RULING Date of last order: 05/07/2024 Date of Ruling: 09/08/2024 OMARI, J. This is an Application for review predicated under section 78 and Order XLII Rule 1 and 3 of the Civil Procedure Code, Cap 33 R.E 2019. The Applicant is beseeching this court to review its own decision in PC Civil Appeal No. 12 of 2023 between her and her former husband that was delivered on 07 December, 2023. In the said decision that the Applicant is seeking to be reviewed she (then the Appellant) was challenging the decision of the first appellate court that ordered a farm in Luzando, Mkuranga is a matrimonial property and subject to equal division Page 1 of 6 between the parties. In its judgment, this court after going through the record found that the first appellate court properly analysed the trial court's record, thus, concluded that the property in dispute is marital property therefore, it is subject to equal division was upheld. This means the appeal was dismissed for want of merit. The Applicant came to this court once again, going through the Memorandum of Review, she is armed with five grounds to wit: i. That the decision (sic) based on manifest error on the face of the record which resulted in miscarriage of justice. ii. That the party was wrongly deprived an opportunity to be heard. iii. That the decision was procured by fraud from the Respondent. iv. That the honourable appellate court

erred in law and in fact whereby the order for division of matrimonial property is not clear and is ambiguous. v. That the court decision is a nullity. It is on the basis of the five grounds that the Applicant prayed for the Application to be allowed so that the court reviews its orders and entire decision and therefore issue orders that the Respondent pays costs for the Application and any other orders that it deems fit and just. The Respondent challenged the Application in his reply to the Memorandum of Review. Page 2 of 6 The record shows, at first both parties appeared unrepresented, later on one Adam Kasengenya appeared for the Applicant. The matter was ordered to be disposed of by way of written submission. However, none of the parties complied with the scheduling order. When they appeared on the date set for checking compliance Mr. Kasengenya informed this court that they had not been served with the Respondent's submission. The Respondent retorted by stating he could not have filed any submission in reply since he was never served with the Applicant's submission. It is against that background that this Application is determined based on the Memorandum of Review and the reply by the Respondent. The Applicant's Memorandum of Review is tethered on the disputed property in Luzando, Mkuranga. The Respondent is disputing the Application. Having gone through the grounds as

stated in the Memorandum of Review and the record of the court, I now determine if this Application is meritorious and if so, what would be the way forward. It is settled law that for a court to grant an application for review, certain grounds have to be met. These grounds have been discussed in various case laws, one among them is the case of Transport Equipment Ltd v. Devram P. Valambhia, Civil Application No. 18 of 1993, it was held that: "The court has inherent jurisdiction to review decision and it will do so in any of the following circumstances to Page 3 of 6 wit, where there Is a manifest error on the face of the record which resulted in miscarriage ofjustice, or where the decision was attained by fraud; or where a party was wrongly deprived of the opportunity to be heard." In another case, Masudi Said Selemani v. The Republic, Criminal Application No.92/107 of 2019 it was held that: "The Court has powers to review its own decisions. Rule 66 (1) of the Rules provides thus: - The Court may review its judgment or order, but no application for review shall be entertained except on the following grounds; a) The decision was based on a manifest error on the face of the record resulting in the miscarriage ofJustice; or b) A party was wrongly deprived of an opportunity to be heard c) The court’s decision is a nullity; or d) The court had no jurisdiction to entertain the case ;

or e) The Judgment was procured illegally or by fraud or perjury”. In both of the above cases, the Court of Appeal has set forth the four grounds for review clearly stating that there must be; a manifest error on the face of the record which resulted in miscarriage of justice, or where the decision is attained by fraud; or where a party was wrongly deprived of the opportunity to be heard. Furthermore, in the case of Chandrakant Joshubhai Patel v Republic [2004] TLR 218 it was held that where a decision is erroneous in law is no ground for ordering review. It is therefore clear that the objective of review is to address irregularities in the decision and not to challenge the merits of the case. In the Application before me, the Applicant alleged the above-mentioned grounds as grounds for review before this court. She has not shown the court what is an Page 4 of 6 error on the face of the record in that decision. For an application of review to succeed, there must established an apparent error on the face of the record. And, such error must have resulted in a miscarriage of justice. As stated earlier, the Applicant does not show the manifest error on the face of the record. The argument that the division of matrimonial property is not clear and is ambiguous is itself not clear. In my reading and view the court’s decree is clear and unambiguous. The decision of the first appellate

court is upheld, the appeal is dismissed and there is no order as to costs. The said decision that is upheld clearly and concisely explains why the said property is matrimonial property and since neither of the parties had adduced any evidence of their contribution to the acquisition of the property it has to be divided equally. Another reason for the ground of review that the Applicant gives is that she was deprived of the right to be heard. She has not explained how this is so. The record does not in any way depict that there is either party that was deprived of the right to be heard. The matter was disposed of by way of written submission to allow the parties to benefit from legal assistance and legal aid and both parties submitted their written submission. Furthermore, the Applicant has not shown how the decision was procured by fraud of the Respondent. When looked at in context, the Applicant seems to be dissatisfied with this court's decision to uphold the first appellate court's findings. If this is so, in my opinion, Page 5 of 6 the right course for the Applicant ought to have been filing an appeal rather than an application for review. This was stated by the Court of Appeal in the case of Ngasa s/o Nhabi v. Republic, Criminal Application No. 2 of 2014. In this case, the Court stated: "An application for review is by no means an appeal in disguise whereby an erroneous

decision can be reheard and corrected". (Emphasis Supplied) It is therefore trite law that where a party is dissatisfied with a decision they cannot seek for review on the basis of their dissatisfaction, thus filing an appeal in disguise. On the whole, it is my conclusion that this Application for review has not established anything to warrant review of the decision. It lacks merit and is therefore dismissed. As the matter emanates from a matrimonial one, I order no costs. It is so ordered A.A. OMARI

JUDGE 09/08/2024 Ruling delivered 09th day of August, 2024. At hkki A.A. OMARI

JUDGE 09/08/2024 Page 6 of 6