19970507 TZHC Dar es Salaam

I IN •.rHZ iiIG,-i C:OUiCi' 01'' 'i .-U:U,1J'LL-1. 1 • CD;'.LI\r, -_,i'S >:Jr w u1.. 1. . "J:'.,·•1V1 D· -rc:To-rr.T .J.,v 4.:.,.J• .J T.)-.snrcTRY) JU 0 / .... . ' . OOOQOOOOQO~:)OOOOOOOOOOOOOOOOOOOO '.!8.RSUS SALUM MUSSA • o o • o o o a o o o e,, o o o o o o coo o o o o o • o , o o o o o"to RESPONDENT ... RULING-' .. .i MSUMI 1 · J.: What is involved in this appeal started as Ci"\'il C.:,.se No.101/1994 filed at Magomeni Primary Court. Appellant and r1.;spondent were wife and .... husband respectifully. In the above ll)e!}tioncd suit appella."lt successfully . petitioned for divorce. Incidental to the divorce order, th~ court also directed.that the sh3.1nba at Kibaha which was held to be matrimonial property be shared equally between the parties, On the evidence that the said shamba was already sold by the respondent for Shs.600,000/= the court held that . the said sale was invalid and insisted that appell::lilt is entitled to possess half of tl1~ suit sharnba. :::in 8.p~e~.u th~ District Court upheld this decision. However, after th.a District Court had determined the s;-,.id .?..ppe_D.1 on 17/5/95, Mr. Mwakajinga who advocated for the responci.,mt filed a mernornndum of review requesting the first appellate court to review its judgment on the following submission and prayer. last 1. The~ paragraph of the judgment has two contrc1dicting statements. It•is ·proposed to ask the courts for nn order: '·. (a) That since the shamba at Kibaha was sold b0fore the time the respondent instituted a case fer the division of property, the respondent is entitled to a share in the sale proceeds of the se.id shamba. The ·learned Resident Magistrate·a.ccepteJ this'prayer. She accordingly ordered that appellant be paid, Shs.300000/=~ This appeal is against that order. As fOinted out earlier, ~he s.:i.id r0view w,,.s filed about one week • after. the appeal was determined. The ::osi tion in l.:::.w as regards appeal and review is that a party is allowed to file both proceedings simulteneous.ly or •·• file review application before filing an appeal. But he ca..."lnot file review application :.rf.ter he. ho.s filc:.i ;:'..i."1· ~-t.J;,.is0•:-.l. In ,:,th,;:r words,.. ~r.-revicw application• hll.s b bo fil?d--either .. b;_;i-.ro!· ,·._~:--:;·11- ::•r--'simultt:;n_;·usli~1Hh·'.l~-~:>26l': .:iillii if "thcf " a:.~;..::.:J:.,.is !obrL1in-}.:l c:!,,rH;.:.r,--tb.:: Ot)-J'ili lin~~r,,wi,.1w t ..L~.i.'lie --:t-io~ hboh~s-. · ··1'Iowever, th~~a-:;:·:;:.'.:~l r:i:1y. cuntin_µc.;;0-van '}ft.it. r~view~ :).]_.))lie --tion has b~_c-m d.et.,r;1ine-:.l~· ..In tha~p»eseo.t..:._c.:..cc Il(;t only ..:the· ~;.ur~ ,:-rted :r:0vi..:w :l.p~-lfc.·,ti,,n ·wtis-fiL.::d__ · -:i.ftor · the appeal but after the same had been determined. The learned Resident Magistrate ' ~,. . )L 2 had no power to review her decision which was made 011 the appeal. For this reason alone, this appeal is granted. 'rhe ruling of the learned Resident Magistrate made in the purported review application is ',, set aside. The judgment of the said Magistrate which upheld the decision of the trial primary court is sustained as it iso 1\ppellant is entitled to her costso JUDGE. 7/5L9-1 Appellant present Respondent : present. . , ♦ .. ..... tr .• f .. . ,• .. fl: '' ..'