Vicent Jacob Maro

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CIVIL REVISION NO. 28175 OF 2024 (arising from matrimonial cause no.5 OF 2023 MOROGORO DISTRICT COURT) VICENT JACOB MARO APPLICANT VERSUS ANITHA JOHN GANGA RESPONDENT Date of Last Order: 20-02-2025 Date of Ruling: 07-03-2025 RULING MAGOIGA,J. Before Morogoro District court (the trial court) was a petition by the applicant seeking for declaration that the marriage between the applicant and respondent herein has been broken irreparably, and consequently issue a divorce order and any other relief the court deemed fit to grant. Upon being served with the petition, the respondent filed a reply to the petition praying, among others, recognition of Maria Vicent Maro, its custody be placed before the respondent and be maintained by hisj(ather and any other relief the court may deem fit to grant. Parties at all material time were enjoying the legal services of Mr. Jackson Liwewa and Mr. Jackson Mashankala, learned advocates respectively. The record shows that the advocates for parties intimated to the trial Magistrate that there were overwhelming chances of this petition to be settled amicably. Further, the record shows that on 21.06.2023, the learned advocates addressed the court orally under sections 4(1),6 and 44 of the Law of the Child Act, [Cap 13 R.E. 2019] that divorce order be issued, Maria ViCent Maro be recognized as the biological child of the parties, be under the custody of the respondent and that the petitioner maintain her by providing Tshs.100,000/- per month until she attains maturity age of 18. The trial court endorsed those oral subrriissions by the learned advocates for parties and accordingly issued divorce order, recognition of Maria Vicent Maro as an issue in the marriage of the parties, Maria to be under custodian of the respondent and the petitioner to maintain her at Tshs.100,000/- per months till she turns 18 years. And the matter was said to have been settled and ended up amicably on 15.09.2023. Indeed, I must hasten to say no deed of settlement was dully signed by parties and filed in the trial court but just oral submission by the counsel for parties. I will revert back to this situation. The record further shows that almost a year later, on 09/08/2024, the trial court suo moto rectified the consent judgement under section 96 of the Civil Procedure Code,[Cap 33 R.E 2020] in the folloMng^ . w 'That the consent judgement was entered bv the advocates for the parties and parties were called to sign, the Respondent complained that she was not given a right to sign which is the gist of this application,she complained that Magreth Vicent Maro was above the age, she is entitled to nothing, but Maria Vicent Maro was under age so she is entitled to maintenance Tshs.l50/per month and school Tshs.650 per year through school account and transportation's niay be directed but school administration. Going through the record the mistake is cured under section 96 of the CPC"(Emphasis mine). Sgd PRM Unfortunately, the matter did not end there, but after elapse of one year from the date of the so called 'consent judgement', the applicant preferred Civil Review No. 20694 of 2024 under Order XLII Rulel(l) and (3)of the CPC. The main concern of the applicant was that the rectification of the consent judgement was done in his absence and as such denied him right to be heard. The respondent complained that she was not called and signed no consent judgement. r The trial court in granting the application after hearing parties had this to say: , . . ... .... . ^^From the record it is clear that applicant was not summoned when the rectification on consent judgement passed. So, he had no knowledge of rectification on judgement until decree was tabled before him.I also join hands with the submission of Mr. Shoo advocate that the applicant was barred from his right to be heard. I hold that this application has merits and terms which were agreed on consent judgement remain intact. . Sgd. PRM. I have endeavoured to show what exactly happened in thi^ matrimonial proceeding. In the first place, I hasten to say with no flicker of doubt that, there was no known 'consent judgement' in law in the record before the trial court. Though the phrase "consent judgement" is not defined in the CPC but it is the court's order that is based on an agreement between the plaintiff and defendant in a law suit. It is legally binding agreement that resolves the dispute between parties when freely and fully executed by parties to the suit. Under the CPC, in particular, under Order XXIII ruje 3 a suit can be compromised by lavyful agreement or compromise, However, in this case, I find none and what the trial magistrate equated to be a 'consent judgement' was not one and no party to the proceedings signed any agreement to that effect. I further wish to point out that, advocates are not parties to a suit. Their representation is limited to their clients'interest and to guide them on how to arrive Into,a compromise or agreement. An advocate can only be allowed to sign on behalf of the client, if, and only if, he has written authority from the client. In this revision, I have traversed the entire record but I find none was presented and the trial court order that there was consent judgement was done yvithout any lawful agreement from parties. To that end, I find that much as parties as seen above did not consent to the so called 'consent judgement' sarne is found wanting for lack of consent. In my considered opinion, it is the consent of the parties and not the advocates that bind parties and advocates are not parties to a case. Magistrates are reminded not to take lightly an issue of consent in any proceedings unless dully authorized in writing. Not only that but in the circumstances of this revision, the consent judgement occasioned failure of justice and prejudiced parties for failure to hear them and compromised the interest of justice in this case. , . 1 Consequently, I hereby exercise by povyers under section 44(1)(b) of the Magistrates Courts Act and doth hereby quashed and set aside the 'consent judgement'for reasons given above. Further, much as other orders for review and rulings on rectification were entertained out of time same were exercised without jurisdiction as such lack legal legs to stand. Under itern 3 of the Part III of the First Schedule to the Act, provides that the time limit for application for review of judgement, ruling or order is 30 days from the date of the decision. As noted above, the impugned judgement its review was done out of time and without an extension of time, hence a nullity for want of jurisdiction. Consequently, I hereby quash and set aside an order for rectification of consent judgement done on 09/08/2024 which is hereby nullified and the ruling of the trial court dated 15/10/2024 hopelessly entertained out of time is equally set aside. That said and done, this case is to be remitted back to trial court for the same to heard afresh before another magistrate with competent jurisdiction to try the same with no order as to costs. It is so ordered. Dated at Morogoro this 7^*^ day of March, 2025. cojlEIo Uj X > h- W Jfc. S.M. MAGOIGA JUDGE 07/03/2025