dinna onyango vs kigacha wambura 2014 tzhc 2160 29 august 2014

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA HC CIVIL APPEAL N0.42 OF 2013 (Arising from Nyamagana District Court Misc Civil Application No. 70/2013 Originating from Matrimonial Cause No. 6/2012 Nyamagana District Court) DINNA ONYANGO.................................... APPELLANT VERUS KIGACHA WAMBURA.......................... ...RESPONDENT JUDGEMENT 05/08/ & 29/8/2014 SUMARI, J. The appellant Dinna Onyango and the respondent Kigacha Wambura were husband and wife. The facts on record shows that in 1993 the two couples contracted a civil marriage but later in 2007 they religiously officiated their marriage by contracting a Christian marriage. After happily life together things started to fall apart of which the appellant petitioned for divorce, division of matrimonial assets and an order for maintenance of their five legal issues (children) whom two of them are twins. After full hearing the trial Court decided that the marriage between the appellant and respondent had broken down irreparably to warrant♦ divorce. The trial Court accordingly dissolved the said marriage. The respondent was ordered to provide maintenance for his children to a tune of Tshs. forty thousand (40,000/=). The learned trial Magistrate went on to distribute the matrimonial properties as I hereby quote:- "g) I divide or distribute matrimonial properties as follows:- i. AH domestic utensils be divided in the half way. //. Petitioner to get house plot No.717 Block "FF"Nyakato Mwanza City, House Plot No.232 Block "GG" Nyakato Mwanza City, House Plot No.204 and House Plot No.205 as well as those hard ware shops located at Rwagasore. Hi. Respondent to get House Plot No.246 Block "GG"Nyakato and House Located on un-surveyed area that is Nyamayuki Mahina" The said judgment was written by Hon. Njuu, learned Resident Magistrate but due to the transfer it was read over in presence of the appellant and respondent on 18/10/2013 by Hon. Mpaze, learned Resident Magistrate, Now, after the trial Court findings and decision the respondent.filed a memorandum of-review vide Misc Civil Application No. 70 of 2013. The said memorandum was filled on 28/11/2013 exactly a month after the judgement delivered. Paragraphs 1, 2 and 3 of the respondent's memorandum of review reads as follows:- 1. That the applicant has after the judgement was pronounced on 18/10/2013, discovered an important matter of fact that in the judgement and decree showing that the house he was given to own, as part of matrimonial properties, is situated at Nyamayuki area, Mahina. 2. That the truth is that the said house is situated at West Maswa, Mahina Ward, Mwanza and not Nyamayuki area as it has been shown in the decree. 3. That the mistake demonstrated herein above constitutes sufficient reasons to warrant this Court review its judgement and decree dated 18/10/2013. 3 4. The relief sought by this application is to have the decree corrected to show the house the applicant was given to own is situated at West Maswa, Mahina Ward and not Nyamayuki area as shown in the decree. Having brought his application for review Hon. Kalegeya, RM proceeded to entertain the same ex-parte, that is, in the absence of the appellant the reasons being that the appellant was served with summons but neglected to accept it. The respondent was duly heard and the Court went on to review the Court decree dated 18/10/2013 as follows:- THIS COURT DOTH hereby order that the decree on l& h October, 2013 is corrected to the extent that the house which was given to the respondent on unsurveyed area in matrimonial cause No. 16/2012 is located at Magharibi Maswa Mahina and not at Nyamayuki Mahina. It is the said order which has aggrieved the appellant, she consequently preferred an appeal before this Court setting forth the following grounds of appeal:- Jmr 1. That the learned Resident Magistrate erred in iaw in reviewing the judgment of the trial Magistrate with ♦ «• the concurrent jurisdiction in the Matrimonial Cause No. 06 o f 2012. 2. That the learned Resident Magistrate erred in iaw and fact in deciding that house No.002/91 situated at Maswa Street Mahina in Mwanza City is the same as that mentioned in the judgment/decree in Matrimonial Cause No.06/2012 that is in NyamayukfArea Mahina in Mwanza City. 3. That the learned Resident Magistrate erred in law in entertaining an application for review without giving notice to the appellant. During the hearing of this appeal, the appellant appeared in person unrepresented whereas the respondent was represented by Mr. Kelvin, learned counsel. In support of his grounds of appeal the appellant submitted that when their case was heard at the trial Court she listed the list of matrimonial properties including the properties that were misused by his husband. That the respondent also listed the matrimonial properties and the trial Magistrate Hon. Njuu read them aloud during the hearing. The appellant submitted that she listed all the properties they jointly acquired with her husband and the respondent did not object. The respondent admitted to have sold the goods, as he is a man. At the end of the day he was awarded three houses out of 7. The appellant supplemented further that the respondent was awarded Houses situated at Nyamayuki, Mahina Ward, Block GG Nyakato Nundu Plot No.246 and he was also given a house situated at Kangaye Ward at Mwanza which is un-surveyed, which he resides. She continued to explain what the trial Court judgement entailed. That in December, 2013 it was when she discovered that the respondent had an extract order from Hon. Kalegeya, RM reviewing the judgement by Hon. Njuu dated 18/10/2013. That the extracts order is dated 05/12/2013 correcting the judegment and decree of Hon. Njuu. Thus, Hon. Kalegeya RM reviewed the judgment in favour of the respondent's wishes. The appellant submitted further that if Hon. Kalegeya was of the view that Hon. Njuu was wrong she could advise her former ♦ husband to pursue the matter by way of appeal and not to review it. The appellant challenged the review order that the house at Nyamayuki, Mahina Ward which was given to the respondent in the Extract Order does not belong to the respondent. Her contention is that the house situated at Nyamayuki is different from the house situated at West Maswa which Hon. Kalegeya ordered it to be in the hands of the respondent while , the said house in Maswa is registered in the names of their five children as house No. 002/5/91. The appellant finally complained of the review order on ground that it was given in her absence and thus was condemned unheard. That she was not served and there is no summons to that effect. She added that, the respondent knows where she lives; that he could even go to her and told her there is a case and instructed her to go. She called upon the judgment which was delivered by Hon. Njuu to be upheld. J& L In reply, Mr. Kelvin, learned counsel for the respondent very briefly and vigorously submitted on the first ground of appeal that the Magistrate was correct to issue a review order as per Order 42 Rule l(l)(b) of the Civil Procedure Code, Cap 33 (R.E.2002). As for the 2nd ground, it was his contention that the reviewing Magistrate, Hon. Kalegeya, RM was correct for her decision that the house No.002/591 is the same house mentioned in the judgement/decree No.6/2012 as the house situated at Nyamayuki area. His concern was that the house mentioned in un-surveyed area that is Nyamayuki is no longer the matrimonial property as it was sold in 2005 at the knowledge of the appellant at consideration price of 1.5 Million. That the said house was sold to one Mayai. It was his view that because the two houses are both in Mahina ward, it was wrongly listed as a matrimonial property by both parties. That under such circumstances the respondent had to apply for review to show that the house in place was house No.002/591. On the 3rd ground, Mr. Kelvin insisted that the appellant was served but declined to accept the summons on the basis that she had already won the case. That the Court broker Mr. Isangi who served the appellant filled an affidavit of. one Albert Makoye who was the one who served the «• appellant. That the appellant's grounds of appellant are'all unfounded so the appeal should be dismissed with costs. Having addressed the submissions of both parties I should now resort to discuss the appellant's 1st ground of appeal that the learned Resident Magistrate erred in law in reviewing the judgment of the trial Magistrate with the concurrent jurisdiction in the Matrimonial Cause No.06 of 2012. As amply demonstrated above, the respondent's counsel has maintained that the reviewing Magistrate had powers to do the same in terms of Order 42 Rule 1(1) (b) of CPC, supra. The fundamental question is whether the reviewing learned Magistrate, had concurrent jurisdiction with the trial Magistrate, therefore had no powers to review. Order 42 Rule 1 (1) (b) provides as follows:- A review, on the other hand, is also a correction of errors apparent on the face of the record. But, this is done by the same court that gave the earlier judgment. This is what the author Agarwala says, in The Civil Procedure Code - 3rd edition, on reviews:- a. It is well settled that the power o f review is not an inherent power of a judicial officer, but such a right can only be conferred by statute. b. Review is practically the hearing o f an appeal bv the same officer who decided the case. c. A right to review is not an inherent power. d. One judge cannot set aside an order made bv another iudoe o f the same court, although it mav be wrong. e. Court is not entitled to review its order without notice to the other side. f. Discovery o f fresh evidence is not ground for review 11 g. An error o f law is not sufficient reason for granting ' review. Any other sufficient reason must be taken «A rejusdem generis with the clauses preceding. h. The person who wants review shouid at least" prove strictly the diligence he claims, to have exercised and also that the matter or evidence which he wishes to have access to is, if not absolutely conclusive, nearly conclusive o f the matter. The application for review cannot succeed on the ground of discovery o f new and important matter or evidence which after exercise o f due diligence, could not be produced at the time of passing the decree. i. The ground for review must be something which existed on the date o f the decision of decree: and not ' subsequent to the date o f the decree. j. In correct interpretation of the law is not an apparent mistake on the face o f the record. An error o f iaw is not sufficient reason for granting review. 12 k. party ought not to be allowed in review to raise a case which was never raised at the•trial and on which no evidence was adduced. I. Grounds for review must be in existence on the date o f the decree. m. When appeal is preferred, review is out o f question and the party's procedure is to apply to the appellate court to admit additional evidence. n. When an application for review is ordered, the judgment sought to be reviewed is not set aside, but only held in suspense until the case has been re-heard. It is quite clear from the astute words of Agarwala that review is practically done by the same officer who decided the case. Alsor One judge cannot set aside an order made bv another iudae of the same court, although it 'may be wrong7. These astute words audibly speaks for themselves the reviewing Magistrate having same powers with the trial magistrate was not allowed to review the judgement and decree of his fellow learned Magistrate as the two had concurrent jurisdiction. The respondent's counsel has really missed a point when he insisted that the reviewing Magistrate was right to do what she did. She was wrong, so to speak. With the above analysis I find the appellant's appeal meritorious on this ground alone. I see no need of discussing the rest of grounds as this one is enough to dispose of the appeal. Consequently, the Extract Order, proceedings and entire decision of the reviewing Magistrate in Misc. Application No. 70/2013 by Hon. Kalegeya, RM is hereby quashed and set aside. The decision by Hon. Njuu in Matrimonial Cause No. 06 of 2012 is hereby restored. It is accordingly ordered. No order for costs. A.N.M. SUMARI JUDGE AT MWANZA 29/08/2014 14