VENASTICA DANIEL MASINJISA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CIVIL REVISION NO. 18773 OF 2024 (Arising from the decision of Dodoma District Court in Matrimonial Cause No. 17 of 2021) VENASTICA DANIEL MASINJISA....... .............. APPLICANT VERSUS YAHAYA KASSIM ISSA.......................................... RESPONDENT RULING Date: 27/2/2025 &7/3/2025 MASABO, This is a ruling of a preliminary objection on a point of law raised by the respondent challenging the competence of the application. The applicant had filed the present application under section 79(1) (a), (b), (c) of the Civil Procedure Code Cap. 33 R.E 2019 praying that this court be pleased to call for the records of Dodoma District Court in Matrimonial Cause No. 17 of 2021 to satisfy itself as to its correctness, legality and propriety of the proceedings and its decision. The application is supported by two affidavits, deposed by the applicant herein, Venastica Daniel Masinjisa, and her counsel, Catherine Aniceth Wambura, respectively. Upon being served, the respondent filed a counter affidavit accompanied by a preliminary objection that the application is misconceived and bad at law for being an alternative to appeal, hence is legally incompetent. Page 1 of 8 At the viva voce hearing of the preliminary objection, both parties had representation. The applicant was represented by Mr. Elias Machibya, learned Advocate whereas the respondent was represented by Mr. Ditrick Mwesigwa, learned counsel as well. I thank them both for their submission, which I will briefly summarize. Before I delve into the summary of the submissions, I think it is apposite to briefly narrate the gist of this application as discerned from the applicant's affidavits filed in this court in support of the application. The parties herein are a married couple. For a considerable time, they have had an irreconcilable dispute. They referred it to the marriage conciliation board at BAKWATA with no fruition. From there, the applicant petitioned for divorce before the District Court of Dodoma in the Matrimonial Cause No. 17 of 2021. While the petition was still infant, the respondent raised a preliminary objection on point of law that it was incompetent as the certificate issued by the marriage conciliation board was bad in law. The trial court sustained it and held that it had no jurisdiction to determine the matter. The applicant is agrieved by the ruling. His major contention is that the ruling has no final orders, meaning that it did not state whether the suit was dismissed or struck out. Submitting in support of the preliminary objection, Mr. Mwesigwa argued that the application is misconceived and bad in law for being an alternative to appeal. He clarified that revision is only available where there is no right to appeal or where the right to appeal exists but was blocked by judicial process, which is not the case here, as such right existed under section 80 Page 2 of 8 of the Law of Marriage Act, Cap 29 R.E 2019. The applicant was free to invoke such right and not to file an application for revision as there was no justification for it. In fortification, Mr. Mwesigwa cited the case of Golden Palm Limited vs Cosmos Properties Limited, Civil Application No. 561/ 10 of 2019 [2022] TZCA 553 TanzLII and Idd Juma Laizer vs Kuruthum Michael Kanoti, Civil Revision No. 8 of 2020[2022] TZHC 9766 TanzLII where it was held that if there is room for appeal, the party should not go for revision. Based on this principle, he prayed that the preliminary objection be sustained and the application be struck out with costs for incompetence. Mr. Machibya strenuously opposed the prayer and the submission thereto. He argued that, although the principle cited by Mr. Mwesigwa is correct, the right to appeal could not be exercised in the present case because of the vagueness of the impugned ruling. It is not easy, from that ruling, to grasp the status of Matrimonial Cause No. 17 of 2021 as it is not stated whether it was dismissed or struck out. An appeal under section 80 of the Law of Marriage Act can only lie against an order which is missing in the present case. The proceedings before the trial court have remained hanging. Since there is no order to be appealed against, the only avenue for the applicant was to file a revision. In the foregoing of the above, he prayed that the preliminary objection be overruled with costs. In rejoinder, Mr. Mwesigwa briefly argued that the ruling delivered was proper because there was an order and it is that order that has made the applicant come to this court. I have carefully considered the submission made by the parties alongside the impugned ruling. The issue for deliberation is whether the preliminary Page 3 of 8 objection raised by the respondent has merits. As it could be deciphered from the summary of the submission, the parties to this application are in agreement that revision, as a remedy, is not an alternative to appeal and can only be exercised where there is no right of appeal or where such right exists but has been blocked. In the case of Transport Equipment vs Devram P. Valambhia [1995] TLR 161 the Court of Appeal, applying this cardinal principle, held that: "Except under exceptional circumstances, a party to proceedings in the High Court cannot invoke the revisional jurisdiction of the court as an alternative to the appellate jurisdiction of the Court" This rule has been cemented in a plethora of authorities, among them the case of Harith Rashid Shomvi vs Aziza Juma Zomboko Civil Application No. 496/01 of 2020 [2022] TZCA 547 TanzLII. In that matter, the applicant had applied for a revision challenging a decision of this court in a matrimonial matter. Just like in the present case, the respondent raised a preliminary objection inviting the Court to strike it out for being an alternative to appeal hence incompetent. The Court of Appeal, while echoing its previous decisions, extensively discussed this principle and instructively held that: "The law, as it stands now, is settled that revisional powers of the Court are not an alternative to its appellate jurisdiction. That this law has been pronounced by the Court in a string of decisions. Such decisions are Hassan Ng'anzi Khalfan (supra) and JV Electrical &Electronics Co. Limited (supra) cited to us by the Page 4 of 8 learned advocate for the respondent. Others are Halais Pro-Chemie (supra), Moses Mwakibete vs The Editor- Uhuru and two Others [1995] T.LR 134 and Transport Equipment Ltd vs Devram P. Valambhia [1995] T.L.R 161, to mention but a few. In J.V Electrical & Electronics Co. Limited (supra), we reiterated the position we stated in Halais Pro-Chemie (supra) on the circumstances in which an applicant aggrieved by a decision of the High Court may seek a revision instead of appealing. We observed: In Halais Pro-Chemie (supra), this Court set out four circumstances, where a party aggrieved by an order of the High Court may seek revision instead of appealing. The circumstances in that decision are; one, where the Court on its motion calls for the record of the High Court for revision; two, where there are exceptional circumstances; three, where matters complained of are not appealable with or without leave and; four, where the process of appeal has been blocked by judicial process." (see page 7) The Court went further at page 8 to state that: Likewise, we cannot resist the urge of reiterating what we stated in Moses Mwakibete (supra) and restated in Transport Equipment (supra) and Halais Pro- Chimmie (supra) that: "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...... " Page 5 of 8 Deliberating whether revision as remedy is available to a party agrieved by a decision of a matrimonial court, the Court had this to say at page 9 of the judgment: "In the case at hand, the High Court (Ebrahim, J), as already alluded to above, upheld the decision of Kinondoni District Court in Revision Application No. 03 of 2019. Having been aggrieved by the decision of the High Court, in terms of section 80(4) of the Law of Marriage Act, the readily available remedy to the appellant was to lodge an appeal........ The applicant did not comply with the letter of this subsection under the pretext that there are special circumstances attached to the present matter. We respectfully, are not ready to agree with the applicant. We have scanned the entire record of revision in the light of the affidavit and written submissions supporting the application but have been unable to find any special circumstances to support the applicant's contention". In the present case, the impugned ruling being that of the district court is covered by section 80(1) which states that: 80.-(1) Any person aggrieved by any decision or order of a court of a resident magistrate, a district court or a primary court in a matrimonial proceeding may appeal therefrom to the High Court. [Emphasis added]. Mr. Machibya has passionately argued that the decision sought to be revised is not appealable as in it, the court did not make a final order. Having stated that it has no jurisdiction to entertain the petition, it made no consequential Page 6 of 8 orders. Thus, it is uncertain whether the petition was struck out or dismissed. While his observation as to the substance of the ruling is correct, for the reasons that shall soon become apparent, I do not subscribe to his submission. First, in my perusal of the application, I have observed that none of the two affidavits supporting it has alluded to the trial court's omission to state the fate of the petition. His argument as to the deficiency of the ruling, has sprouted from the bar and should, therefore, attract noweight. Second, and in the alternative of the above, in my reading of section 80(1) above I have found it to have been couched in broad terms encompassing decisions and orders. Its wordings are free of any ambiguity and it does not, at all, appear to me that the term "any decision" was cosmetically placed in the provision. Rather, it appears to have been infused with a great meaning and to have been carefully crafted to defy the limitations envisioned by Mr. Machibya. In the foregoing, I am not convinced that the trial court's omission to state the fate of the petition (the final orders) rendered the decision exceptional and unappealable. To the contrary, I am of the considered view that the trial court's decision that it had no jurisdiction to entertain the application is appealable as, in the broad context of section 80(1), an appeal from a matrimonial matter need not necessarily lie from orders. It can lie from any decision, including the decision challenged in the present application. That said, I have found the application to have been misconceived as there were no exceptional circumstances warranting revision. Page 7 of 8 Having found, as I have done, that the application is misconceived, the next issue for consideration is what remedy is available to the application. Guided by the decision of the court of Appeal in Harith Rashid Shomvi vs Aziza Juma Zomboko (supra) and other similar decision in which it was held that the appropriate remedy is to strike out the application, I sustain the preliminary objection and strike out the application for being an alternative to an appeal hence incompetent and bad in law. As this application is a product of a matrimonial petition, there shall be no costs. DATED and DELIVERED at DODOMA this 7th day of March 2025. J. L. MASABO JUDGE Page 8 of 8