Mariam Kaporo vs Yusufu Mperera (Civil Appeal No. 118 of 1996) [2000] TZHC 180 (16 June 2000)

r~ -~ ~ ~ IN THE HIGH COURT OF TANZANIA · DAR ES SALt;N/ DISTRICT. REGISTRY J\ T DAR ES SALAAM CIVIL APPEAL N0.118 OF 1996 M1\RIAM KAPORO • • • • • • • • • • • 0 • PETITIONER VERSUS YU SUFU MFERER!'i ...... •·• .... RESPOJ\TDENT R U L I N G BUBESHI.,1_, J: · On 24/4/1998, this court rejected the applicants appeal and held that t:tieir marriage had not irretrievably br.oken down in terms of Section 140 of the Law of Marriage Ac.t, 1971. The applicarit then sought to appeal against that decision but latter decided a::sainst that move and how seelrn to have that decision reviewed on account that the respondent the_ir marriage. is no longer opposing dissolution of I ' 0 In order for the provisions of Se·ctic;r1---'78 .anc~ Orcfo,r 42· ·,.· RR (1) and (2) of the CPC 1966 to come into play, three pre conditions i1ave to exist. The$e are that there is a discovery of rl,ew and important matter or evidence which was not within the 3f:plicants.knowledge or could not be produced by him at the time the dec:ree was made. Secondly that a review is being sought on account of some mistake or error on the face of the record.· Thirdly, review can also be applied for any other sufficient reason. Now the only reason being advanced is that the spcuses aie no longer Willing to live as husband and wife, put it differently,that the· marriage-cannot be salvaged Does this ground comes within the purview, of the provisi'ons cited above? How can this court.satisfy itself that the sp(.u -es· are no longer living as husband and wife or that their marriage cannot be salvaged unless there i 9 evidence r.ecorded from the parties· themselves? Can this court which heard the matter on appeal have legal authority to do so? •

'l ) 2 I think not. While I join hands with. Mr. Kayinga, for the applicant that this ccurt.can review its own decision even where a copy of decree/judgment is not accompanied to the memorandum of review but I am of the firm view that this is not the trype of cases where I could do so. I am of the view that Mr. Kayinga's interpretation of "new and important matter" is errenous in that this new snd important matter, after the exercise of due diligence ought to have been in the applicants knowledge· or could not be, produced by her when the appeal was being heard. I am afraid I am not' persuaded by Mr. Kayinga's submission. .In sum, I decline the invitation and reject_ the application for revJew with costs. Delivered before Parties. CiJu~ A.G. BUBESHI JUDGE 16/6/2000