NGALULA JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA MATRIMONIAL APPEAL NO. 5660 OF 2024 (Originating from Matrimonial Cause No. 100 of 2014 in the Mkuyuni Primary Court and Matrimonial Revision No. 32 of 2023 in the Nyamagana District Court at Nyamagana) DENIS MADUHU NGALULA………………………………………………APPELLANT

VERSUS MERCY GEORGE NYEREMBE…………………………………………RESPONDENT

JUDGMENT 31st October & 4th November, 2024 KAMANA, J. In this appeal, Mr. Denis Maduhu Ngalula, the appellant, challenges the decision of the Nyamagana District Court in Matrimonial Revision No. 32 of 2022 which in his opinion was in favour of Ms. Mercy George Nyerembe, the respondent. His grounds of appeal were: 1. That the learned Magistrate erred in law by failing to find that the order of the primary court was issued illegally as the said court was functus officio.

2. That the learned Magistrate erred in law and fact by sustaining the objection that the application for revision was brought as an alternative to appeal. 1 3. That the learned Magistrate erred in law and fact by erroneously deciding based on the extraneous matters that were not before him. To appreciate the gist of this judgment, I think it is apposite to recapitulate the facts that led to this appeal. The appellant and the respondent were a married couple. Through Matrimonial Cause No. 100 of 2014 in the Mkuyuni Primary Court, the parties divorced each other. Consequent to the divorce order, the primary court ordered the appellant to pay the respondent TZS 100,000/- a month for the maintenance of their children commencing October, 2014. On 14th April, 2022, the respondent moved the primary court praying the same to vary its maintenance order from TZS 100,000/- a month to TZS 200,000/-. She cited the growing up of the children as the reason for varying the maintenance order. The respondent did not agree contending that TZS 200,000/- was on the high side considering that he had another family that depended on him. However, the appellant was ready to pay TZS 150,000/- a month. After pondering the arguments, the primary court varied the maintenance order from TZS 100,000/- a month to TZS 200,000/-. 2 The appellant was not pleased by the primary court’s decision. By way of

Chamber Summons, he knocked on the doors of the Nyamagana District Court seeking revision of the primary court’s ruling that varied the maintenance order. His efforts proved futile as the district court dismissed the application for revision for being brought as an alternative to an appeal. Undeterred, the appellant preferred this appeal. The appeal was argued by way of written submissions. Submitting for the first ground, Ms. Agnetha Kamala, learned Counsel for the appellant, contended that the district court erred in law by not considering that the order of the primary court issued in 2022 was made when such court was functus officio. She amplified that in 2014 the primary court ordered the appellant to pay TZS 100,000/- for maintenance of his children. Given that, he held the view that by varying the said amount to TZS 200,000/- in 2022, the primary court was functus officio. Concerning the second ground, Ms. Kamala contended that the appellant’s application for revision was proper and timely before the district court by virtue of section 22(1) of the Magistrates’ Courts Act, 3 Cap. 11 [RE.2019] (MCA). He amplified that the primary court’s decision which varied the maintenance order was tainted with illegalities. On the third ground, Ms. Kamala contended that the district court directed its minds to extraneous matters and decided on the same without considering the

application before it. She explained that instead of concentrating on the application for revision, the district court focused on the respondent’s objection that the application was preferred as an alternative to an appeal. Based on those grounds, Ms. Kamala implored this Court to quash and set aside the decision of the primary court made in 2022. Responding to the first ground, Mr. Alhaj Majogoro, learned Counsel for the respondent, contended that what the primary court did was right as the appellant did not, at any time, pay TZS 100,000/- as ordered by the primary court in 2022. He amplified that following the appellant’s failure to comply with the maintenance order, the respondent moved the primary court to execute its maintenance order whereby the appellant was ordered to pay TZS 300,000/- a month to settle the outstanding maintenance pay. On the second ground, Mr. Majogoro contended that the district court was right to dismiss the application for revision as the appellant 4 had the right to appeal. He amplified that the appellant’s contention that the appeal would not do justice to him is devoid of merits. He explained that an application for revision should not be used as an alternative way to circumvent time-barred appeals. On the third ground, Mr. Majogoro reiterated his arguments on the first and second grounds. Rejoining, Ms. Kamala maintained her position during the

submission in chief. I have given a thorough thought to the arguments of the learned Counsel. The issue that invites my determination is whether the appeal is meritorious. In determining the appeal, I wish to start with the second ground which in essence formed the ground for the dismissal of the application for revision by the district court. According to Ms. Kamala, the application for revision was proper and timely before the district court under section 22(1) of the MCA. This was opposite to Mr. Majogoro’s view who asserted that an application is not an alternative to an appeal. As rightly argued by Ms. Kamala, section 22(1) of the MCA vests in the revisional powers to the district courts over the matters decided in primary courts. Such powers, according to the section as exercised by the district court with a view to satisfying itself as to the correctness, 5 legality or propriety of the decision or order of the primary court. Further, such powers are also exercised to ascertain the regularity of the primary court’s proceedings. However, as rightly contended by Mr. Majogoro, an application for revision is not an alternative to appeal. This means that when there is a decision or order appealable, the aggrieved party must use the appeal avenue to challenge the decision unless he is blocked by the judicial process from pursuing the avenue. This position was restated in

the case of M/S NBC Ltd vs. Salma Abdallah and Faisa Abdallah, Civil Application No. 83 of 2001- CAT (Unreported) where the Court of Appeal had this to state: ‘Revisional powers conferred to the court are not meant to be used as an alternative to the appellate jurisdiction of the court. Therefore, the court cannot be moved to use its revisional jurisdiction where an applicant may exercise his right of appeal to the court.’ Having laid that foundation, I think it is apposite to determine whether the order issued by the primary court to vary the maintenance order is appealable or otherwise. In this regard, I wish to first examine whether the primary court had the power to vary its maintenance orders 6 which were first issued in 2014. In this, I reproduce section 133 of the Law of Marriage Act, Cap. 33 [RE.2019] (LMA) as follows: ‘The court may, at any time and from time to time, vary or rescind, any order for the custody or maintenance of a child on the application of any interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.’ Deducing from the quoted section, it is clear as crystal that courts have been vested with powers to vary their maintenance order provided the conditions set under the said section are met. In this regard, I wish to make it clear that the

only court that is vested with such powers is the court that originally made the maintenance order. To be precise, the court that enjoyed the power to vary the maintenance order is the one that had original jurisdiction in the matrimonial proceedings concerned. See: Pacificus Joseph Rutakumilirwa v. Mariam Ally Kihelelo, HC Civil Appeal No. 48 of 2021-HC (Unreported). Having taken position, I now turn to determine whether the varying order is appealable or otherwise. According to section 80 of the LMA, any party aggrieved by the decision of the resident magistrates’ 7 court; district court; or primary court has the right to appeal to the High Court within 45 days from the date of the impugned decision or order. The section reads: ’80.- (1) Any person aggrieved by any decision or order of a court of a resident magistrate, a district court or a primary court in a matrimonial proceeding may appeal therefrom to the High Court. (2) An appeal to the High Court shall be filed in the magistrate’s court within forty-five days of the decision or order against which the appeal is brought. (3) N/A (4) N/A (5) N/A (6) N/A’ From the above-quoted section, the question is whether an application for varying maintenance orders is a matrimonial proceeding. According to section 2 of the LMA, matrimonial proceeding means all proceedings instituted under Parts IV and VI of the LMA. Section 133

of the LMA which is about powers of the court to vary maintenance order falls within PART VI of the LMA. Given that, it is my holding that an 8 application for varying maintenance orders is a matrimonial proceeding that is appealable under section 80 of the LMA. That being the position, the appellant’s only recourse was to appeal against the order. Having taken that position, I perused the records specifically the appellant’s affidavit. In his affidavit, the appellant assailed the primary court’s decision of 2022 which varied the maintenance order from TZS 100,000/- to TZS 200,000/- for being tainted with irregularities as the same matter was already decided by the same court in 2014. In this, I hasten to state that since there was a right to appeal under section 80 of the LMA, the appellant’s option was to appeal instead of filing an application for revision. This is because, as I have stated earlier, a revision is not an alternative to an appeal. In the case of Said Ally Yakut and 4 Others v. Feisal Ahmed Abdul (Administrator of the Estate of the Late Ahmed Abdul), Civil Application No. 4 of 2011-CAT (Unreported), the Court of Appeal had time to give a thought to the contention on whether a party with a right to appeal may seek revision of the impugned decision. In resolving the matter, the apex Court had the view that when there is a right to appeal, such aggrieved party has

to use such right. It went on to 9 conclude that an application for revision is tenable only when there is no right to appeal. It said: ‘The conditions in the Mwakibete and Halais cases cited above do not cover the circumstances of the instant application where the applicants have another remedy provided by law, that is, to institute an appeal. It is only where there is no right of appeal, the applicants have a right to move the Court to exercise its revisional jurisdiction to resolve their grievances. The Court of Appeal reiterated its position in the case of Moses J. Mwakibete v. The Editor Moses Mwakibete v. The Editor - Uhuru, Shirika la Magazeti ya Chama and National Printing Company (1995) TLR 134 in which it was stated: ‘(i) The revisional powers conferred by section 4 (3) of the Appellate Jurisdiction Act, 1979, are not meant to be used as an alternative to the appellate jurisdiction of the Court of Appeal; accordingly, unless acting on its own motion, the Court of Appeal cannot be moved to use its revisional powers under Section 4 (3) of the Act in cases where the 10 applicant has the right of appeal with or without leave and has not exercised that right. (ii) The Court of Appeal can be moved to use its revisional jurisdiction under section 4(3) of the Appellate Jurisdiction Act, 1979 only where there is no right of appeal, or where the right of appeal is there but has

been blocked by judicial process. (iii) Where the right of appeal existed but was not taken, good and sufficient reasons are given for not having lodged an appeal.’ From that principle which I found to be binding to this Court when exercising its appellate or revisional jurisdiction, the revisional powers of this Court are only exercised when there is no right to appeal. In this matter, as I have held, the appellant had the right to appeal against the order issued by the primary court under section 133. The apex Court made an exception to the rule when it suo motto calls for the records and revises the decision, which is not the case in this matter in which the appellant did not appeal without any justifiable reasons. Further, the apex Court had the view that the revisional powers are exercisable when the applicant has been blocked by judicial process 11 and when good and sufficient reasons are supplied for not pursuing an appeal. I have perused the affidavit and I find nothing suggesting that the appellant was blocked by the judicial process to file an appeal. Further, the affidavit did not provide any reason for the appellant to fail to file an appeal. That being the position, the district was very right in dismissing the appellant’s application for revision as he had the right to appeal against the decision that varied the maintenance order. By sitting on his rights for

almost a year before seeking revision, the appellant’s action is, in my view, an afterthought that lacks legal support. The second ground is devoid of merits. It should be noted that the district court dismissed the application for revision after the preliminary objection raised by the respondent. That being the case, the said application was not determined on merits. That being the position, I thought it not proper for this Court to decide on the first ground which was not decided by the district court. I would hold otherwise if the application before the district court had been decided on merits. Further, in case the second ground would have been decided in favour of the appellant, the recourse would be to remit the file to the district court to hear and determine the application. Since the 12 application was dismissed, it was wrong for the appellant to raise the first ground which was not decided by the district court. Concerning the third ground, the reasons supplied when determining the second ground dispose of the ground. The third ground is devoid of merits. In the final analysis, the appeal is dismissed. I order no cost. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 4th of November, 2024.

KS KAMANA

JUDGE 13