Regina Mashilu vs Benjamin Nduta (PC Civil Appeal No. 13 of 1998) [1999] TZHC 469 (25 November 1999)

IN THE HIGH COURT OF --TANZANIA AT TABORA (PC) CIVTL APPEAL (Ar,ising out ,f Bariadi District Cf,urt Civil Appeal ' Ne. 64/<9? and original Luguru Primary Court Civil Case No o 7 of 1997)_ REGINA MASHILU 00 "0 0 0 f• • 0 . " 0 0 APPELIJ1.NT "(T I E R s u s BENJAMIN NDUTA 0 J ci" CC i 0 0. 0 0 RESPOJ\TDENT ~ RULING MASANCHE 2 J.: 'll On 27th July, 1999 I dismissed an appeal of ·•ne> Regina ~- Mashilu 9 the pres(mt applicanto It was an appeal that had been br1ught before this Court challenging the decision of the Dist:ict Court Bariadi in District Court Civil Appeal No .. 64/9?. The District Magistrate h!ariacli (Malamsha, SDM) while entertaining appeal sent to L. by the present respondent, Benjamin Nduta, discovered that, the file of the Primary Court of Nyakabincli - Civil Case N•. 159/96 thet had entertained the issue of cli vorce did "so without first receiving a Certificate. ram a Conciliation Board cenfirming tha.t the matrimonial· difficult had been sent to it in terms of so 101 ef the Marriage Act 1971"' ~ • When the matter came befere me on appeal, I also agreed with the first appellate Court that, indeed, the matter had not been referred to the Oonciliatien B0rd. Mr. Mtaki, in this application, before me,now,argues that there was evidence to show th:::it the matter ha.c1 been sent to the Reconciliation Board and that a Certificate to I· ,. f1.

2 that effect was tendered in the divorce file,. s~, Mr. Mtaki ., was asking this Court t• review its mvn judgment delivered on 27th July, 1999. For, according to Mr .. Mtaki, there is an error apparent on the record. Mr .. Mtaki has tendered what he ca.lls a certificate of a Reconcilian Boa:cd 9 a letter from the village Chairman of. Mwarnapalala 11 A 11 dated 10/6/96" He says this letter was \ tendered in the divorce file which, agein, it is said is either lost or got burnt at the Primary Court ef Nyakahindi., Mr. •tr . Mtaki agrees, however, that this letter was not part ~f.the

record in the ca.se before me that originated from Luguru Primary Ceurt, which is a case on di vis~,1. of matrimonial assess ts • .. -,- - .. ~~:· This letter which Mr. Mtaki calls a Certificate reads:- "Mwenyeld ti wa Ki t.,ng, ji , Kwa Mtendaji Wa KijijiMaj_ampaka. . ··(,· ~ Mwamapa.lala ! 1 A II ,. rt,. , 11 WIT0 11 Box 174-, BARIADI. Mtajwa hapo juu arnelalamikiwa na rnke wake Regina M .. Viaheha wa Mwamapalala ambaye wanaishi naye kania mke walrn hu1rn ~ 1 • r •• 1,.; ~ •-• .. ,.,,-\ Malarnpala amba';Ye amemfulruza kvm sabagu ya J.rushindana kidini na kuleta rnaf arakano kinyum~_. 1 ,i!9a.: walJ.V,0.funga Nq.•a katika Kanisa l~fJtc/::i:1<f\1aswa Bar:tadi basi baada ya ~{,f:. . Regina kunieleza tatiz4i -"la.1-ce, basi A :I

(PG)..CivoApp..,13/98., 3 nimechuh.'11.a hatua ya kumwi ta Ndugu Benjamin Nduta kwa hatua za Usuluhishi kwa hiyo nimechukua hatua za kumwita aje 1716096 kwenye Baraza la Mwenyeld:ti wa Kitongeji Mwamapalala bila kuacha. Mimi Mwenyekiti wa Kitoji: Jeremiah Timothy. KUPITIA IGiA MTENDAJI WA IITJIJI MWAf'iPALALA. 11 Let me, befere I entertain the applicati•n_f•r review, :, give briefl1 tpe facts of this· case: Regi~~ Mashilu and Benjamin Nduta had got married in a Nman Chathelic Church in 1991. The husband was a Seventh .i: ,:" . ·-,.ay Adventist Christian, while the wife was a Catholic o In 1996,the wife converted 1 an becqme als9 a Christian~--,.f-~~e Seventh Day Adventist Church. Seme misy.nderstandings se. The wife then went to C•urt to seek divarceo She.went to a • Primary Court at Nyakabindi and there she was granted divorce. Tha was ih Nyakabindi Primary f4urt Civil Case lj.•o 159/96. It would appear that here, the file was flpened on the , strength of that lette.r from the Village Chairman I have reproduced above. She got divorce as I sayo Later, she went to a Primary Court e,gain 1 this time the Luguru )?rimary Ccurt to seek an order :,f · the Court fo;r: a. distributi,m of •i. their matrimt:q,ial assetso Here, again, she has been granted ~ the order. ·\rtw tt was agaf;nst that order that the husband:- · appealed to the District Cturt where there has been this turn • ff events - the whole case, 1 .• being declared ni.111 and v!id ffr iack f the Certificate frm the Reconcilition tr C ♦ nciliatitn Board; As I have already laid, I have als~ endorsed the -:J?D,--1 M :• I·

. . .., 4 decisitn of the District c,urto The law •n reviews is simple and strainght f"'rward: ., The pers•n wh•,; ·wants a review to be me.de, must satisfy the c•urt that thee had been an errJr apparent on the face if the record .. "Where the mistake is apparent on the face of the record, then irrespective of whether the error occurred by reason of ihe mistake of the Counsel~ or it crept in by reason ~fan oversight, must be ce3.'rectec1 on the review petition and save the applicant the trouble and expenses of an appeal" •. (De D. Agarwala: !JleQyil Pr~~~9.-.1;lre C~ 3rd edition). The question to p•se here is: is there an error apparent on the face of the record? I see n•ne •. It is tru~ that there was no eertificate from a Conciliati•n Beard in terms of s. 101 of the Marriage Acto The letter of the-- village Chairman as Mr •. Boaz suggests is n•<t a certificate in terms of so 101 of the Marriag~ Act. . Indeed, as Mr., Boaz has said., r--l?oul_d have exp•cted this couple to have gone to the ChurchL,ei ther t•:. the §eventh :19.y Adventist Church or to the Re.man Cath•lic Church, te,have their matrimonial difficult discussed.__And., if the Board failed, then it would have sent a certificate to the Court stating in no uncertain terms that it ha.d f a.iled to resolve the matrimonial difficult, and was, therefore., referring the matter to the g.urt. ~ On my part I would venture to say that it will be in very rare cases that a Court of law w.uld allude to a review of its ,1m judgment o I say rare because as D. Do Agarwala says in the Civil Procedure C.e, 3rd edition: discovery of fresh evidence is not ground for review in second appealo 11 "An error of law i.s not sufficient reason for granting review· o 11 HThe ground for review muste something. which epsted on the dateL,the decision .t' decree and not subsequent to the date of the decree •. Tl

5 il A Court has jurisdiction to decide wrongly. 11 •· "incorrect interpretation of law is not a.n apparent mistake "'In the face of the record," "A party ought not to be allowed in review to raise a case which was never raised at the trial and on which no evidence was give'n". ' Now~ t-• come back to Mro Mtakis submission, he agrees that the ·so called certificate was• nit part of record in the distribution of matrimonial case at Luguru Primary Court. Indeed the law says that there cannot be a distributi,!i ··•f matrimonial property without there being pr·::>of f di vrce e And a divrce cas entails it;. b,eing opened after a certificate from a 6onciliatin-B1ard has been obtainedc This is s.o, becau;e' as the first appellate Court correctly says' th'e .fl. Ceurt in a case ,,f division of matrimonial property, will have to look, among other things, to the"o-•ntribution of each sponse towards the break down of the marriage., Mro Mtaki did suggest that as the divorce file was burnt or lost, the Court ought the more to cecept the.t the divorce proceedings were propero But with due respect that is not the law. The converse is true. When a file is lost or burnt, b0fore the appeilate Court sees it, the appellate Court must order •r a retrial. (see case •. •f Haider~~J-.Ji.hoo~~~-£. v:.__:<:? (1952) 19 E.AeC.A. 2 1 !-4). I asked Mr. Mtaki why his client has not accepted the verdict",•f the District Court, which has been supported by me~•f going back te tho Primary Court and starting the case all .ever again, Mr. Mtaki has replied that it will be a very 11 ~ensive" exeruise on ithe part of his client. Anyhow, as I see no error apparent on the face of the record, this applicat:iMn for a review is refusedo It is rejcted .. with costs., At Ta1D.era...

• ' 25th November, 1999. F!.~ Al2]2i..£.a.nt: Mr. Mtakio E_or Re1!.t.: MP. az. ,._,:- -,I \j I; v J,. E. C.2 JUDG~ ..