19921026 TZCA Mtwara

' r IN TIIE IIIGii COURT OF WJTZA!JIA CIVIL R-SVISIGJ" N0.3 (,J' 1992 Songea District Court Civil Appeal lfoo 15/92 Original Hfara.nyaki Pr.c~ Civil Case :Ho.,10/92 Songea District Court Civil Revision No.1/92 ~ . ' IiA.BIITU IJ>DI NGALILILA ••••••••••• APPELLANT Versus Tu~/J.[:::IA MCIIATA •• o...... .. . . . . . . . . RES.PONDENT JUD GHENT lCAZIMOTO 9 J • liabibu Idcli Ngalilila and Rehema Mchata were married in 1956 according to i'-lohamedan ri"ceG. 'i'hey have a nwnber of c!1ildreno In 19DO ITabibu divorced his v1if e by tala)~. In 1992 Rehema went to coUI't to petition :tor di voroe and. as they acquired properties jointly she prayed for an order c:f division of property specifically a house she had ::.i ved in all the time and which Ra.bibu sold to I,iary Shirima in 1991,, The prima:r;y- cnurt ordered Tiabibu to refund. the purchase money to Mary Shirima and ordered that house to remain a. family property and respondent and her children to continue living in the house. In the meantime :H£ary Shirima appealed anc~ a civil revision. file was opened in i~hich the order made by the primary crmrt was quashed and set aside• , The District Cov..rt (Mnu.."lguye, DM) in revision/appeal declared that the house should belong to Mary Shirima as the lawful purchaser for value. At the same time Habibu appealed to the District Court ancl. the Distr,ict Court (Amuli, SDU) dismis'Sed the appeal with costs. The file was placed before this court for revision as it appears these two decisions of the same court cannot be enforced in law. For the purpose of these proceedings I will refer to Habibu as the appellant and Rehema as the respondento The respondent was represented.by Mr. Hwingira leaxnecl advocate and the appellant appeared in person. There was no dispute that the appellant has sold the house in dispute to Mary Shirima in 1991. I am not impressed by the appellant's submission before me that before selling the house ,he consulted the respondent and j ... _1 - 2 - shared the proceeds with her. This submission has contradicted his submission ~ · fore the District Court where he -was :recorded to have said: It is true that when I sold the house the respondent had gone to D 'Salaam t1 to visit oux chilc1.reno Thus I sold the houseo I did not inform the respondento I first took ad.vantage when she lefto Thus the house is mineo I h;'tt~)not given the respondent even a single cent out of the shs.200,000/=-• '\:,:, I thus pray the coi,trt to set aside the order ~f.' the primary court since the house is rn;i.ne • t: I am satisfied -~}1at appellant sole:. the ;.,ouse in question witl1out consulting the respondent and for the reasons which he gave the respondent was not given '.1er 'shareo As I have said. above the appellant sole: the house to Mary s:1irima who got aggrieved. by J.;he order of the prir:-ry court instructing -~he appellant to refund the money t0 her and the house should vest on the respondent. I have e:;;;aminecl the record of the revision before V111ung1.i.ye, Dill learned magistrate. The file cover and the judgment sl1011 that it was a C:!'i.;:.:: 'l&l revision No.1 /92 betueen the Republic and. i'Iary Shirima, a strange anomaly. The Republic was 110t a party nor was Kary Shirirna a party in original civil \ case Ifo.10/92,, Secondly even if it was a civil revision ancl a.s tl1e decision affected the respon<lent 1s rights the learned magistrate should have afforded the respondent t;_:e opportunity to be heard as required under section 22(3) of tlie Magistrates Courts I Act, 1984. This was not done. So s ec1; ion 22( 3) above cited has been contravened. This was a fatal ommission.- Next 1 this is a clear case of justice burried. The learned District Magistrate received. the complaint on 21/2/92. There are no proceedings from the primary court to be revised. On the same date and in the absence of both parties, a judgment was written revising the decision of the trial court., It is not clear ,ihere he got the material :from which he wrote the judgmento So this was irregularo Mary Shirima has complained against the order made by the trial court and her complai2Yt s}1.0ws that she was appealing~ That being an appeal it is incompetent as earlier stated because she was not a party to the proceedings in civil case No.10/920 IIer only remedy is to sue the appellant-for the refund of the purchase price of the houseo Even if she was a party to the proceedings the appeal cou.ld nn.t be disposed of without notice to the respondent and ,1ithnut hearing hero The court has denied her the basic right to be heard.o This am0w.1ted t·o a breach of natural justice. - 3 - Again Niary S)1irima filed her memorandum of appe::=.l on 21/2/92. On the same date the learned magistrate delivered his judgment. There were no proceedings in the record. And the proceedings before the primary court had not been concluded.,, It was finally decided by the trial Cotu:'t on 11 /3/92• So there was nothing 1fary 3hirima could have appealed against on 21/2/92. In his judgment the learned District Ivla.gistrate stated~ ::The Oimersllip of the matrimonial properties ceased since the elate the h0usc was sold and changed the · right of om:1ership · 1egal ly .. n It is dif.ficuH to know where he got this evidence,, As there was no evidence to support the decisi-011 in criminal rcvisirm ifoo1/92 that Mary Shirima had b0ught the hnuse L1 quest ion t]1e proceedings i'n criminal revision :tfo o 1/~2 are quashed and set aside. Even if there was evidence that Mary Shirima ;bought the house the subject of civil revisinn Ifoo1/92 the decision of the District Court cai.111ct be upheld for the reasons which I have stated above6 It is also quashed. and set asideo For t;1e avoidance of doubt I declare the proceedings bcf ore }1.1.unguye 9 Dl\1 in Crimi;.1al cum civil revision between Republic ancl Mary Shirirna nnl1 and void and the 0rc~er of the primary court that appellant should refv.nd -;;>_e purchase price to Mary S;,.irima. is upheld. As there was no appeal against -:;;.ie clecision of' the Distric·i; Cnurt (Amuli 7 3DI.i) in Civil Appeal . N0015/92 tha:1; c~ecision stands,, ~ 11A-_..__ rl_ ~ . Kazlmo~ Judge 26 10/92 11 Coram: Kazimoto, Jo Appellant~ Hwingira for·respnndent absent Res ponclent in person o Judgment delivered,, Judge