Civil Revision No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL REVISION NO. 3165 OF2024 (Arising out of Matrimonial Cause No. 130 & 141 of2023 of Temeke District Court at Temeke One Stop Judicial Centre) DAINES AVELDA ANAMONYISA MOSHI.............................................. APPLICANT VERSUS SAULI SAMWELI......................................................................... 1st RESPONDENT SILVIA VEDASTO........................................................................ 2nd RESPONDENT RULING 22nd May & 8th July, 2024 BARTHY, J.: The applicant named-above by way of chamber summons moved this court under section 79 (1), (b), (c) (3) and Section 95 of the Civil Procedure Code CAP 33 R.E 2019, to call for records of proceedings, examine the correctness and legality, revise, vary and quash the judgment and the drawn decree of the District Court of Temeke at Judicial One Stop Centre - Temeke —fem-, (the district court). rf i The application was supported by an affidavit of the applicant stating ground for moving this court to revise the decision of the trial court. The application was met with the preliminary objections raised by the second respondent based on the following; i. The application for revision is incompetent for contravening the pending appeal before this Hon. Court PC Civil Appeal No. 6907 of2024 ii. That the application for revision is incompetent for being containing false statement and/ or forged sale agreement. In that regard, the second respondent prayed for the application for revision to be struck out with costs. The hearing of the preliminary objections raised was disposed of by way of written submissions. The submission in chief, in support of the preliminary objection by the second respondent, was prepared by Mr. Ezekiel Joel Ngwatu, learned advocate. In his submission in chief, he abandoned the second limb of the objection and proceeded with the remaining ground of the preliminary objection. It was his submission that the first respondent and the second respondent were husband and wife, respectively. The second respondent petitioned for a decree of divorce before the primary court of Temeke, 2 followed by cross-appeals from both sides to the district court. This was then followed by both respondents lodging appeals to this court, which were withdrawn due to an error that occurred during the filing in the system. With the leave of the court, the first respondent lodged PC Civil Appeal No. 9907 of 2024, which is still pending before the High Court and has not yet been determined. On the other hand, the applicant has filed an application for revision, seeking the court to revise the decision of the district court, claiming ownership of the assets that were subject to division as matrimonial assets in the matter involving the respondents. Mr. Ngwatu was of the view that having the application for revision in the presence of the appeal is an abuse of the court process. To reinforce his argument, he cited with approval the case of Isidore Leka Shirima & Another vs The Public Service Social Security Fund & Others (Civil Application No. 151 of 2016) Court of Appeal at Dar es salaam [2021] TZCA 761, which cited the case of Attorney General vs. Hammers Incorporation Co. Ltd and another, Civil Application No. 270 of 2015. The court held that allowing a party to prosecute an application for revision while the other party has initiated an 3 appeal would bring confusion to the administration of justice. He therefore prayed for the application for revision to be struck out. The applicant in her reply to submission, she affirmed that there is a pending appeal involving the respondents before this court. She stated that she learned about the existing appeal after she had already filed her application for revision, claiming she was not a party to the original matter. Therefore, to protect her properties, she filed this application for revision. To buttress her argument, she cited the case of Augustino Lyatonga vs. Republic and another [1996] TLR 267, where the court held that the right to revision cannot be invoked when there is no right to an appeal. She further countered that the application before this court is not an abuse of the court process. Regarding the cited case of Isidore Leka Shirima (supra), she was of the view that the case is distinguishable from this matter as the former matter involved the same parties in both the application for revision and the appeal. She further contended that, the application for revision was instituted before the said appeal was filed. Considering the time limit for filing for revision provided under Item 21, Part III of the Schedule to the Law of Limitation of Act, Cap 89 R.E. 2019, it provides for a period of 60 days from - 4 the time the person gets knowledge of the transaction complained of. To stress her point she cited the case of Ramadhani Nkongela vs. Kasan Paulo [1988] TLR 56. She further stated, it was proper for her to file the application for revision regardless of whether there was an appeal or not. She therefore prayed for this court to dismiss the preliminary objection raised without costs. Alternatively, she prayed for the court to use its discretion to stay the application pending the determination of the pending appeal. In his rejoinder submission, Mr. Ngwatu maintained that the application for revision is incompetent, as the grounds in the appeal are the same as those in her application, which may lead to confusion. He refuted the claim that the applicant was unaware of the existence of the appeal, as it was withdrawn and refiled. He further recounted that it was the same advocate who prepared the appeal for the first respondent, was the one who prepared this application. He further rejoined that the applicant should have pursued her right soon after the decision of the district court was delivered, but she decided to sleep on her right. Therefore, at this stage, she cannot raise the issue of 5 limitation. He maintained his arguments made in the submission in chief and prayed to this court to dismiss the application. Having read the contending submissions from both sides, this court is now tasked with determining whether the preliminary objection raised has merit. Considering the arguments from both sides, it is evident that the applicant is claiming ownership of assets that are also involved in the matrimonial matter between the respondents in this case. The applicant and the 2nd respondent are in agreement that there is an appeal pending before •» this court involving the respondents in this matter, which pertains to the same reliefs claimed in the present application for revision. Regarding the arguments presented, it is clear that the respondents had already lodged their appeal, which was prior withdrawn with leave to refile the same. This indicates that the respondents had already moved the court with an appeal against the decision of the district court. Therefore, the applicant's contention that her application for revision was filed before the lodging of an appeal is unfounded. Given that the applicant was not a party to the original suit, she had the right to invoke the right to revision where there is no right of appeal. — nw-, 6 However, since the parties in the original suit had previously lodged their appeal, which was withdrawn, and the 1st respondent has refiled the appeal, which is now pending before this court, determining both matters would lead to conflicting decisions. In that regard, I agree with the submission of Mr. Ngwatu with respect to the authority cited in the case of Isidore Leka Shirima & Another vs The Public Service Social Security Fund & Others (supra) the position that was stressed in the case of Jalibu Mrisho Mwenemilao vs The Hon. Attorney General & Others (Civil Application No. 538/17 of 2022) Court of Appeal at Dar es salaam [2023] TZCA 17799, where the court reiterated its position, which has been restated in numerous cases, and held that; "We wish to add that the position of against invoking the two jurisdictions sim uitaneousiy does not change even where, like in th is case, the applicant is a stranger or an interested party who did not participate in the proceedings before the High Court. Besides, we think that in the circumstances like the one obtaining in the present application, to allow an applicant who was not a party in the previous proceedings to apply for revision where one of the parties has initiated an appellate process, is to 7 bring confusion in the administration of justice. This is SO because som e of the matters raised in the grounds of revision could be properly raised in an application for stay of execution or as grounds in the intended appeal by a party who has initiated the appeal process." [Emphasis is supplied]. This overlap indicates that the issues at hand are interconnected and could potentially lead to conflicting decisions if handled separately. The presence of a pending appeal that addresses the same matters as the current application for revision further complicates the situation. In light of these events, the application before this court is incompetent and is hereby struck out, and I make no order as to costs. It is so ordered. Delivered in the presence of the 1st respondent in person and Mr. Ezekiel Joel learned advocate for the 2nd respondent and RMA. Ms. Bernadina, in the absence of other parties. 8