PAULO LEMA v WILSON CHUMA 1989 TLR 130 (HC)

 

PAULO LEMA v WILSON CHUMA 1989 TLR 130 (HC)

Court Court of Appeal of Tanzania- Mwanza

Judge Makame JJA, Kisanga JJA and Omar JJA

21 July, 1989 C

Flynote

Civil Practice and Procedure - Review - Whether a judge can review his own order

made in revision. D

-Headnote

Paulo Lema is appealing against an order made by Munyera, J. in which the learned

judge reviewed his own order made in revision, in a matter arising from a suit to resist

E the sale of a house in a public auction. One Steven Lulyalya had two civil suits

against him in the Resident Magistrate Court, Mwanza. He sold to the present

respondent Wilson Chuma, a house he owned at Igoma, Mwanza on December 15,

1984 while already in November 1984 there was an injunction restraining Lulyalya

from disposing of F the house. The same house was bought by Paulo Lema at a

public auction on March 3rd 1985. Later Chuma successfully applied before another

magistrate to have the sale to Lema set aside and to find Chuma's private purchase of

the house valid. An inspection note was sent up to the High Court with the

observation that some of the pages of the G record had been removed when Chuma's

application was heard so the magistrate had decided the case on the basis of a

misrepresentation of fact. The learned judge accordingly set aside the lower count's

order and declared the court broker's sale to Lema absolute. Following the High

Court's decision, Chuma applied to the same court H for review of its order in

accordance with 0.42 of the Civil Procedure Code. Munyera J. was impressed by the

Arguments marshalled on behalf of Chuma so he confessed himself in error set aside

his own revisional order and ordered that the decision of the trial court be restored in

its entirely. The decision aggrieved the appellant hence the I present appeal.

1989 TLR p131

MAKAME J

Held: The learned High Court Judge was not entitled to take another look at his own

A decision in the circumstances, and his exposition of the law was incorrect.

Case Information

Appeal allowed.

No case referred to. B

Kahangwa, for appellant

Rutashobya, for respondent C

[zJDz]Judgment

Makame, Kisanga and Omar, JJ.A.: Paulo Lema, who is represented in this appeal by

Mr. Kahangwa, learned advocate, is appealing against an order made by Munyera, J.

in which the learned judge reviewed his own order he had made in revision, in a

matter arising out of a suit in connection with which the present respondent Wilson

Chuma, now D represented by Mr. Rutashobya, learned counsel, filed objection

proceedings resisting the sale of a house the present appellant had bought at a public

auction. The history of the matter is rather complex but it seems to us that the issue

before us now is narrow and not so difficult. E

Briefly, the history of the matter is like this: A person called Steven Lulyalya had two

civil suits against him in the Resident Magistrate's Court, Mwanza. It is asserted that

he sold to Wilson Chuma, the present respondent, a house he, Lulyalya, owned at

Igoma, Mwanza, when there was already an injunction, in at least one of the civil

cases, F restraining the said Lulyalya from disposing of the said house. The sale to

Chuma was on 15th December, 1984 whereas the same house was bought by the

appellant Lema at a public auction on 3rd March, 1985. Chuma successfully applied to

have the sale to Lema set aside so the result was that Chuma's private purchase of the

house was found G to be valid. This decision was by Rugaimukamu, R.M. while the

trial magistrate in both the main suits was Mwihava, R.M.

In due course Matui, S.R.M. sent up to the High Court an Inspection Note in which

he H observed that some pages of the record had been removed when Chuma's

application was heard so the magistrate (Rugaimukamu, R.M.) was not aware of some

orders which had earlier on been made prohibiting and restraining Lulyalya from

transferring etc. the house at Igoma. As aforesaid, Munyera, J. revised Mr.

Rugaimukamu's order and set it I aside. The learned judge was satisfied that Mr.

Rugaimukamu's decision was based

1989 TLR p132

MAKAME J

on a misrepresentation of facts as a result of some of the pages of the record A

disappearing. The learned judge accordingly set aside the lower court's order and

declared the court broker's sale to Lema absolute.

Following the High Court's decision Chuma applied to the same court to review its

order B in accordance with Order 42 of the Civil Procedure Code. Chuma was in

that application advocated for by Mr. Kidela, learned counsel, while Lema was

represented by Mr. Kahangwa, learned advocate.

Munyera, J. was impressed by the arguments marshalled on behalf of Chuma so he C

confessed himself in error, set aside his own revisional order, and ordered that "the

decision of the trial court is restored in its entirety."

Lema is in turn appealing to this court to fault the second decision by Munyera, J. He

is, D in other words, asking us to say that Munyera, J. erred in reviewing his order.

That is to say, Lema wants the position to remain the same as the one reached by

Munyera, J. in the Revisional Order.

Order 42 specifies the situations in which a party may apply for a review. For ease of

reference we reproduce the relevant portion of the said Order 42: E

1 - (1)Any person considering himself aggrieved -

(a) by a decree or order from which an appeal is allowed, but from which

no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed, and who, from

the discovery of F new and important matter or evidence which, after the exercise of

due diligence, was not within his knowledge or could not be produced by him at the

time when the decree was passed or order made, or on account of some mistake or

error apparent on the G face of the record, or for any other sufficient reason, desires

to obtain a review of the decree passed or order made against him, may apply for a

review of judgment to the court which passed the decree or made the order. H

Looking at both Chuma's Application for review and the arguments by Mr. Kidela in

the High Court, we are with respect, completely at a loss to appreciate in what sense

Order 42 could legitimately be called into play: Chuma urged that, among other

things, the High I Court was misled that some pages of the record, containing the

injunction were removed, that a temporary injunction

1989 TLR p133

MAKAME J

cannot prevent a party from alienating his property, and he purported to guide the A

learned judge to a legal provision contained in Order 37 rule 2(3). In the course of his

arguments in the High Court Mr. Kidela did not appear to challenge that some pages

of the record were removed, in fact he accepted that an injunction was granted in

November, 1984, that is before the private sale to Chuma, only he got mixed up as to

B which civil case was relevant. His main support for the application was rather his

contention that the proper and only course open to the court if Lulyalya sold the

house in defiance of the injunction was to attach the property under Order 37. Mr.

Kahangwa's brief submission in reply was that the injunction was binding on Lulyalya

and Chuma C bought at his own risk: Lulyalya should have applied under order

37(4) to have the injunction discharged etc. before he sold the house to Chuma.

We think, with great respect, that the attachment mentioned in Order 37 rule (3),

which is what Mr. Kidela relied on, and which is clearly what influenced the learned

judge as D being missing, is not the attachment as a result or, following as a

consequence of the injunction. The attachment is that of party who is disobeying the

injunction order. Munyera, J. concluded that in this case no attachment was made as a

result of the E disobedience (to observe the injunction order) and mixed up that

attachment with the issue as to whether what was done by the trial court before

Lulyalya sold to Chuma amounted to attaching the property to the extent of

forbidding Lulyalya to sell. That was a question of law, in our view not envisaged by

Order 42. The course open to Chuma if F he was dissatisfied with Munyera, J.'s

decision in revision was to seek to appeal to this court against the decision which

confirmed the sale to Lema as indeed he indicated he would do in Paragraph 3 of his

affidavit at Page 49 of the proceedings. G

We are anxious that it should be understood that we are not concerned with the

merits of the decision in the revisional order. It is not the function of the present

exercise. All that we are really saying is that the learned High Court judge was not

entitled to take another look at his own decision in the circumstances and say that his

exposition of the law was incorrect. H

We are of the view that this appeal has merit and it is accordingly allowed with costs.

The position is therefore as established in the revisional order, that is the house is the

present appellant's unless Chuma succeeds in dislodging him from that position. I

Appeal allowed.

1989 TLR p134

A