CIVIL REVISION NO

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CIVIL REVISION NO. 15463 OF 2024 CASE REFERENCE NO. 202407011000015463 NASRA HAMISI NAMTEMA - ---------- ------------------ — APPLICANT VERSUS HASSANI SEIF BANYANI ——------ -------- —----- — RESPONDENT RULING Date of last order: 13.08.2024 Date ofRuling: 04.10.2024 Ebrahim, J.: The Applicant herein instituted the instant application praying for the following: a. That, this Honourable Court be pleased to call and examine the record Of proceedings of Mtwara District Court in Matrimonial Appeal No, 2454/2024 and revise, quash and set aside the proceedings, judgment and order so delivered. b. Costs of this application be provided for. Page 1 of 11 c. Any other order(s) this Honourable Court deems fit to grant. The application was supported by an affidavit sworn by the Applicant, Nasra Hamisi Namtema. The Respondent protested the application by filling his respective counter affidavit. Alongside the Respondent, his legal counsel, Mr. Rainery Songea raised a preliminary point of objection (PO) that: 1. The application for Revision is misconceived and bad in law for being an alternative to appeal or appeal in disguise. In this application, Advocate Gide Magila represented the Applicant. Arguing the points of preliminary objection, Mr. Songea submitted briefly that the application for revision ought to have been filed as an appeal and he referred to the reasons stated in paragraph 10 of the Applicant's Affidavit as grounds of appeal but not revision. He cited the case of Harith Rashid Shomvi vs Aziza Juma Zomboko (Civil Application 496 of 2020) [2022] TZCA 547 (6 September 2022) TANZLII where the Court observed that revisional powers of the Court are not an alternative to its appellate jurisdiction. He explained the circumstances under which a party can seek for revision which are; one, where the matter complained of is not appealable; two, Page 2 of 11 where the process of appeal has been blocked by judicial process; three, where there are special circumstances and; four, by the court suo motto. Mr. Songea was adamant that the Applicant's affidavit does not reflect any of the above-stated circumstances, hence it is not legally untenable as the Applicant ought to have filed the appeal. To bolster his argument he referred this court to the case of D.B. Shapriya & Co. Ltd vs Stefanutti Stocks Tanzania Ltd (Civil Application 205 of 2018) [2021] TZCA 613 (27 October 2021) TANZLII, page 9 where the Court held that revision is not an alternative to appeal. He concluded therefore that, since the Applicant had the right of appeal, she ought to have lodged an appeal and not revision, ultimately, Mr. Songea implored this court to strike out this application with costs. In response, Mr. Gide for the Applicant argued that the objection raised is not relevant and should be dismissed on the reasons that the application has been brought under section 44 (1) (a) and (b) of the Magistrate's Court Act, [Cap 11 R.E 2019] read together with section 79 (1) (c) of the Civil Procedure Code, [CAP 33 R.E 2019]. He argued further that the law allows this court to conduct revision where there are material irregularities; and that paragraphs 3 and 4 of the Applicant's affidavit state Page 3 of 11 the irregularities occasioned at the District Court by entertaining matter which it had no jurisdiction. He referred to the Court of Appeal decision in the case of Ramadhani Mikidadi vs Tanga Cement Company Ltd (Civil Application 275 of 2019) [2022] TZCA 578 (26 September 2022) TANZLII, page 6 - where the Court outlined the circumstances to invoke revisional powers one being where there are exceptional circumstances. He said the same position was also discussed in the case of Nondo Kalombola t/a NJ. Petroleum Sprl & Another vs Broadgas Petroleum (TZ) Limited (Consolidated Civil Application 165 of 2019) [2022] TZCA 395 (27 June 2022) TANZLII, page 8. He thus prayed for the point of objection to be dismissed. In his rejoinder, Mr. Songea reiterated his submission in chief and contended that the cases cited by the counsel for the Applicant support their contention that it should be an appeal and not revision, speaking about Ramadhani Mikidadi's case (supra) he said the same was dismissed and equally, in the case of Nondo Kalombola (supra), the application for revision was also dismissed. He added that the issue of time limit can be raised at any stage even on appeal. Having gone through the rival submissions of both parties, the question for determination is whether this revision is tenable before this court. The law Page 4 of 11 i .e., Section 44 (1) (a) and (b.) of the Magistrate^ Court Act, [Cap 11 R.E 2019] provides that; "44. -(1) In addition to any other powers in that behalf conferred upon the High Court, the High Court- (a) shall exercise genera! powers of supervision over all district courts and courts of a resident magistrate and may, at any time, call for and inspect or direct the inspection of the records of such courts and give such directions as it considers may be necessary in the interests ofjustice, and all such courts shall comply with such directions without undue delay; (b) may, in any proceedings of a civil nature determined in a district court or a court of a resident magistrate on application being made in that behalfby any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit: ................... ........ ."[Emphasis added] Also, section 79 (1) (c) of the Civil Procedure Code, [CAP 33 R.E 2019] provides that; "79. -(1) The High Court may call for the record ofany case which has been decided by any court subordinate to it and in which no appeal lies thereto, and if such subordinate court appears- Page 5 of 11 (a)....... ■............. ....... (b)-....... .......................... (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit." [Emphasis added] Subordinate courts for the purposes of this Code, are Resident Magistrates7 Courts and District Courts as per section 4 of the Civil Procedure Code, [CAP 33 R.E 2019]. The above statutory provisions confer powers of revision and supervision and direction to the High Court in the instances of irregularities and illegalities of the proceedings leading to an error material to the merits of the case involving injustice. It is a settled position that the conferred revisional powers of the court are not an alternative to its appellate jurisdiction. That being the position, the law has set circumstances where an applicant aggrieved by the decision of the lower court may seek for revision instead of appealing. Those circumstances are; where the court on its own motion calls for the record of the lower court for revision; where there are exceptional circumstances; where matters complained Of are not appealable with or without leave and; Page 6 of 11 where the process of appeal has been blocked by judicial process. This position has been well expounded in the case of Modest Joseph Temba vs B Akari Selemani Simba & Chiku Zuberisaium & Another (Civil Revision 223 of 2019) [2022] TZCA498 (10 August 2022) which quoted with approval the case of Halais Pro-Chemie v. Wella A.G. [1996] T.L.R. 269. The rationale is to prevent the usurping of the revisional powers as a substitute to appeal. A number of Court of Appeal decisions have clearly affirmed such position. Those decisions are; Moses J. Mwakibete vs. The Editor-Uhuru, Shirika La Magazeti ya Chama and National Printing Co. Ltd (1995) TLR 134, Halais Pro-Chemie v. Wella A.G. [1996] T.L.R. 269, Augustine Lyatonga Mreina v. R [1999] T.L.R. 273, Dismas Chekemba v. Issa Tanditse, Civil Application No. 2 of 2010 (unreported) and Felix Lendita v. Michael Longido, Civil Application No. 312/17 of 2017 (unreported), to mention but a few. In Moses Mwakibete case, it was instructively held; "Before proceeding to hear such an application on merits, this court must satisfy itself whether it is being properly moved to exercise its revisional jurisdiction. The revisionalpowers conferred by accordingly to laws were not meant to be used as an alternative to the Page 7 of 11 appellate jurisdiction of this court. In the circumstances, this court, unless it is acting on its own motion, cannot properly be moved to use its revisiona!powers in cases where the applicant has the right ofappeal with or without lea ve and has not exercised that option." [Emphasis added] Applying the above position in the application at hand, after the appellate court delivered its judgment, the Applicant ought to have appealed against such decision under section 25 (l)(b) of the Magistrates' Courts Act Cap 11 R.E 2019 instead of filing the current application. The section reads; "25. -(1) Save as hereinafter provided- fa)............ .i.................... . (b) in any other proceedings any party, if aggrieved by the decision or order ofa district court in the exercise ofits appellate or revisiona!jurisdiction may, within thirty days after the date of the decision or order, appeal there from to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired. "[Emphasis added] The complaints raised by the Applicant in this application is that the District Court determined the appeal without jurisdiction and also it has dealt with Page 8 of 11- the issue which was not part of the grounds of appeal. These are the irregularities and illegalities which the Applicant would like this court to correct per the averment in paragraph 10 of his affidavit. The issue of jurisdiction can be raised at any stage and be determined at any stage on appeal or revisional stage. But on the issue of the determination of the ground which was not part of the grounds of appeal it goes to the merit of the appeal of which the court has to determine the rights of the parties. So, the same can be determined at the appeal stage and not at the revisional stage as for the revision does not adjudicate the case. K- That being said, the remedy available to the Applicant after being aggrieved by the decision of the District Court was to file an appeal to this court. Mr. Gide informed the court that he preferred revision before this court on the ground that all irregularities are subject to revision as per the requirement of the law in respect of the jurisdiction of the District Court. Nevertheless, the issue of jurisdiction that Mr. Gide is readily banking on can as well be raised at any stage even on appeal. Since the Applicant had a right of appeal and her complaints in the affidavit are appealable; it would be frivolous to prefer revision. I seek guidance from the Court of Appeal Page 9 of 11 case of Tanzania Revenue Authority vs Tango Transport Company Ltd (Civil Appeal No. 84 of 2009) [2016] TZCA 84 (27 October 2016)TANZLII where it was observed that: "..... . a question ofjurisdiction can be taken at any stage of the proceedings, even on appeal." Moreover, in Mansoor Dava Chemicals Ltd vs National Bank of Commerce (Civil Application 464 of 2014) [2020] TZCA 183 (15 April 2020) TANZLII, pages 6 and 7 it was held that: "It has insisted that revisionalJurisdiction Cannot be invoked as an alternative to the appellate Jurisdiction except under exceptional circumstances like in situation where the appellate process has been blocked by Judicial process. This is evident from the decisions of the Court in a number ofcases. For instance, in HaiiaisPro- <• Chemie /. Wella A.G. (1996) TLR 269 the Court inter alia stated: (0 -............... (ii) Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the revisionaljurisdiction of the Court as an alternative to the appellate jurisdiction of the Court." [Emphasis added] Page 10 of 11 Deriving from the above observation of the Court of Appeal and since the Applicant complaints gits squareiv as grounds of appeal; then the right of appeal has to be pursued first unless otherwise. That being said and for the foregoing reasons, I sustain the preliminary objection raised and find the application to be misconceived. In the event, I dismiss this application for revision with costs. Accordingly ordered. . A. FRRAHIM Judge Mtward 04.10.2024. Page 11 of 11