CIVIL REVISION NO 3 of 2023SHAFII NEWNEWNEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MTWARA SUB-REGISTRY AT MTWARA CIVIL REVISION NO. 3 OF 2023 (Originating from Masasi District Court in Civil Appeal No,2of 2023 and Chiungutwa Primary Court in Civil Case No.17 of 2023) SHAFII ABDALLAH HASHIMU............ .................APPELLANT VERSUS V MOHAMED HAMISI MTUYAMBA .........................RESPONDENT RULING Date of Last Order: 2/11/2023 ' ■-? ” • * Date ofRuling: 2/11/2023 < LALTAIKA, J. f The Applicant herein SHAFII ABDALLAH HASHIMU unsuccessfully sued the Respondent herein MOHAMED HAMISI MTUYAMBA for compensation for adultery at Chiungutwa Primary Court. His appeal to Masasi District Court in Civil Appeal No.2 of 2023 was equally unsuccessful. I*. *T- Earlier this morning, I dismissed this application for revision for lack of merit and reserved the reasons for doing so in what I called a "detailed ruling to follow later."The ruling may not be as detailed as I wanted to, but I hope it will convey some elementary legal issues to our esteemed (but unnamed) Page 1 of 5 legal aid providers who have diligently been advising the Applicant. I choose to go for simplicity and avoid unnecessary legal jargons. I wanted to use Kiswahili, but I think that would probably bring in words in in common use. The procedural distinction between revision and appeal is crucial in civil cases: Appeal is a legal process wherein a party who is dissatisfied with a decision of a lower court seeks a higher court's review of that decision. The appellate court examines the correctness of the lower court's decision based on the record of the proceedings. Xv Vx '^L Revision is an exceptional supervisory power exercised by higher courts to ensure that the lower courts have acted within their jurisdiction and have not committed gross procedural irregularities or legal errors. It is not a substitute for an appeal and is not intended to re-evaluate the merits ofthecase. In the present matter, the Applicant has expressly stated that he is "not dissatisfied with the decision." This assertion itself negates the necessity for revision. The proper recourse for addressing the exclusion of additional evidence would have been through an appeal, challenging the specific procedural or substantive decisions of the lower court. The procedural rules and principles of finality in litigation emphasize that parties must present all relevant evidence at the earliest opportunity. Page 2 of 5 Introducing new evidence at a. later stage without justified reasons undermines the integrity of the judicial process and the principle of finality. I am inclined to say in passing that although striking out the application would have been a better approach; I have taken some time to study the ^Sig­ nature of the application as also observe the demeanor of the parties,; I am fortified that the application warrants taking a different way. This brings to my mind the timeless wisdom of Lord Denning MR infeR§fcker v. Packer [1953] EWCA Civ J0511-3 thus: X. ‘k** "If we never do anything which has not been done before, we shall never get anywhere. The law wifi stand stilb whilethe rest of the world goes on, and that will bebad for both. "(Emphasis added) I know that in other jurisdictions, courts of law are moving from the old-fashioned impassivity also known as blind justice, to actively intervene, X. albeit cautiously to spare litigants from chasing the wind. A Kenyan learned aVv author Steve Ouma A Commentary on Civil Procedure Act ,2nd Ed. (Law Africa: -2015) provides as follows on developments in that common law jurisdiction: "Certainly, the above cannot be true post 2010 Kenyan Judicial System. A judge in the Kenyan system is to be regarded as failing to exercise his Page 3 of 5 jurisdiction and thereby discharging his judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. "(Emphasis added) It is noteworthy that in many jurisdictions, the concept *of ■*. KV compensation for adultery arises from the historical notion that'adultery is a wrongful act that causes harm, particularly to the innocentspouse. The legal framework for compensation due to adultery variessignificantly depending on the country's legal system and cultural context? v \ ,£*■ * In the United Kingdom where^m^st^rour laws trace their origin, the e" X5 tort of "enticing away a spouse- .and "criminal conversation" was abolished by the Law Reform (Miscellaneous Provisions) Act 1970. As a result, there is no direct legal remedy fprxompensation due to adultery. Instead, adultery might be consideredMs a factor in divorce proceedings, particularly in the context ofdetermining financial settlements and alimony. C X, * X\Of)feTtan note, even in the absence of a specific study, that the number of cases of this nature are significantly higher in this part of our country. probably because of the "matrilineal system" that is to say a social system or mode of inheritance in which descent, lineage, and inheritance are traced through the mother's line rather than the father's. I think this is an enviable Page 4 of5 practice but in the context of this case, it is advisable that a husband suing for compensation for adultery against his wife should be armed with sufficient evidence. In the upshot, the application is hereby dismissed. I make no order as to costs. It is E.I. LALTAIKA JUDGE * 02.11.2023 Court Ruling delivered under my hand and the seal of this Court this 2nd day of November 2023 in the absence of both parties. E.I. LALTAIKA JUDGE 02.11.2023 Page 5 of 5