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

Flynote

Civil Practice and Procedure - Review - Whether a judge can review his own order made in revision.

-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 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.

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. 

Kahangwa, for appellant

Rutashobya, for respondent

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.

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

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.

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

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.  

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.

Appeal allowed.

1989 TLR p134