Asia Juma Kiemi Draft Judgment

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LAND APPEAL NO 6146 OF 2024 (Arising from the District Land and Housing Tribunal for Manyoni at Manyoni in Land Application No 20 of 2023) BETWEEN ASIA JUMA KIEMI……………………….………………….APPELLANT VERSUS ABDALLAH THOMAS NGOZI……………………….1ST RESPONDENT ROZALIA THOMAS BARAKA……………………….2ND RESPONDENT JUDGMENT Date of last order: 25/11/ 2024 Date of Judgment: 20/02/ 2025 LONGOPA, J.: The appellant and respondents were parties before the District Land and Housing Tribunal for Manyoni where the appellant instituted the land application challenging the 1st respondent action to dispose a house located at Bangayega area within Majengo Ward in Itigi District Council in Manyoni Singida Region. It was stated that the house was sold by the 1st respondent to the 2nd respondent on 29th June 2023 without consent of the wife allegedly that the house was matrimonial home. 1|Page On 21st March 2024, the appellant instituted this appeal against the decision of the District Land and Housing Tribunal for Manyoni which upheld the preliminary objection that it had no jurisdiction to entertain a matter that was of matrimonial nature. Thus, the appellant preferred a single ground of appeal namely: That the learned trial Chairman of the District Land and Housing Tribunal erred in law and fact by granted the first point of preliminary objection on point of law raised by the respondent. On 25th November 2024, the hearing of the appeal viva voce was conducted whereby both parties were represented. The appellant enjoyed the legal services of Mr. Emmanuel Sululu, learned advocate while the respondents enjoyed legal services of Ms. Lilian Mwanemile, learned advocate. It was argued that the appellant has only one ground of appeal disputing the dismissal of the Land Application No. 20/ 2023 at Manyoni District Land and Housing Tribunal. 2|Page It was stated that the application was dismissed/ struck out on 08/03/2024 after the respondent raised preliminary objection that the matter was matrimonial in nature and that is was not the land dispute. The application before the District Land and Housing Tribunal was land application and not matrimonial matter. The District Land and Housing Tribunal erred in so deciding on the following reasons: First, the sale of the disputed land was done when there existed no dispute between the appellant and the 1st respondent who were wife and husband respectively. There is no dispute that appellant and 1st respondent are still married as husband and wife. They commenced living together since 2012 and they celebrated marriage under Islamic rites. They have two issues of the marriage currently. They have the properties including the disputed property/ land at Bangayega area within Majengo Ward in Itigi District Council in Manyoni Singida Region. The house was sold by the 1st respondent to the 2nd respondent on 29/06/ 2023 without consent of the wife (the appellant herein). Second, section 159(1) and (2) of the Law of Marriage Act, Cap 29 R.E. 2019 states that matrimonial home cannot be sold without consent of the spouse(wife). The appellant and first respondent were residing in that 3|Page house. The 2nd respondent knew that the 1st respondent was married to the appellant thus she purchased the same while aware of the encumbrance of the house existed as it was the matrimonial home thus "the buyer beware" principle to apply to the same. The appellant went to Tambukaleli Ward Tribunal for the application No 4 of 2023 for mediation. The 2nd respondent did not attend as she refused to appear before the Tribunal thus the applicant had no option than to file a Land Application No 20/ 2023 on 21/07/2023 against the 1 st and 2nd respondents. The counsel for appellant reiterates further that the appellant filed an application of status quo but the 2nd respondent entered the possession forcefully despite the order of the Tribunal. In the District Land and Housing Tribunal the 1st respondent stated to have divorced the appellant something which is not true. At page 4-5, the ruling states that the marriage status be determined first. It is the submission of the appellant that the trial Chairperson erred in law to so hold as there was nothing on attachments that respondents failed to indicate that such marriage was dissolved. 4|Page It was reiterated that the Court is the only institution that can determine the dissolution of marriage. It is not the District Land and Housing Tribunal that determines the dissolution of the marriage thus the DLHT ought to have decided otherwise. The appellant stated to have cited the case of Basilisa B Nyimbo versus Simon Nyimbo [1996] TLR 93 where the Court stated that the marriage is only dissolved by the court and no any other person. As DLHT was having nothing indicating the dissolution of marriage thus the Tribunal should not have struck out the matter before it. As the marriage still exists, the sale of the land could only be challenged via the land application as the property was acquired jointly by the parties during the subsistence of the marriage i.e. the appellant and the 1st respondent. It was the appellant’s prayer that this appeal be allowed as the application was valid before the Tribunal as there was no evidence of dissolution of the marriage. It was a further prayer that this Court be pleased to order the District Land and Housing Tribunal to hear the application between the parties to determine the basis of disposition of the house without consent of the wife/ spouse while it was matrimonial home. 5|Page It was concluded that the order of the status quo was to be maintained thus this Court should be pleased to uphold that in order to preserve the rights of the parties. As such, the appellant prayed for the appeal to be allowed without costs as the appellant and the 1st Defendant are wife and husband respectively. On the other hand, the counsel for the respondent, Ms. Lilian Mwanemile responded that the whole appeal is objected as the decision of the District Land and Housing Tribunal for Manyoni was proper and legally acceptable decision backed up by the law. It was argued that the provisions of sections 56 and 58 of the Law of Marriage Act, Cap 29 R.E. 2019 provide for the 1st respondent to have the right to own and dispose properties. The marriage alone does not prevent a person from disposing the land he owns personally as he pleases. It was reiterated that there is no dispute that separation between the appellant and 1st respondent does not affect the validity of their marriage. However, in the application at paragraph 6(a)(i), (ii) and (iii) there are lucid 6|Page statements about the existence of marriage dispute between the parties and that parties are separated though there is no decree of divorce. It is only the matrimonial court that had ability to determine if the house in question was a property of the marriage or otherwise. The appellant stated that the house/land in question was matrimonial home is the one in dispute. It is the same appellant who stated that the parties are separated. Both the appellant and 1st respondent were not living together thus there was no matrimonial home between the parties who are not residing in the same house. It was submitted that such contradictions on whether the house was matrimonial home where the appellant and 1st respondent were living could only be resolved by the matrimonial court and not the District Land and Housing Tribunal. This is because each of them, the appellant and 1st respondent had stated about separation between the parties each living at a different place thus they are not living in that said allegedly matrimonial home. It was reiterated that in the prayers, the appellant prayed to exercise matrimonial rights thus it was clear that only matrimonial court could deal 7|Page with the matter to determine the same if the sold property was matrimonial or otherwise. It was the respondents’ contention that the decision of the District Land and Housing Tribunal for Manyoni was appropriate legal decision as it is within the established legal principle as envisioned in the case Amon Halinga & two others versus Agnes Sanga, Land Appeal No 12/2022, High Court of Tanzania at Mbeya District Registry at page 15 where the Court stated that the DLHT lacked jurisdiction to enforce matrimonial rights. With regard to status quo stated by the appellant, it was argued by the respondents that the same was not correct and legally binding as it was only granted by the District Land and Housing Tribunal for Dodoma while the matter was before the District Land and Housing Tribunal for Manyoni at Singida region. That order has no legal status whatsoever to bind the parties who were not before the District Land and Housing for Dodoma thus the latter had no jurisdiction legally to issue a conservatory order a landed property located in geographical jurisdiction of another DLHT. 8|Page It was the respondents’ prayer that this Court be pleased to dismiss the appeal without costs considering of the relationship that existed between the appellant and 1st respondent. In short rejoinder, Mr. Emmanuel Sululu, learned advocate for the ppellant reiterated that though there was separation between the appellant and 1st respondent, still the marriage existed. It was argued that it is correct that sections 56 and 58 of the Law of Marriage Act, Cap 29 R.E. 2019 give any party a right to dispose the property given that the same was not matrimonial property. However, it was reiterated that the house in question is matrimonial home thus the provision of Section 159 of the Law of Marriage Act apply to that property. The appellant’s action to rent a room did not mean that the matrimonial property ceases to be one. The parties lived together until when the landed property was disposed. Further, regarding the matter being matrimonial issue it was argued that it is not matrimonial issue but a land matter whereas the rights of the 9|Page spouse are called upon to be determined in subsistence of marriage. There was no dissolution of the marriage. According to the counsel for appellant, the principle in the cited case are different in circumstances as the cited cases indicates that the status of the marriage while in the instant case as per pages 2-3 of the decision of the DLHT. Thus, such decision is categorically distinguishable case. With regarding the status quo, it was submitted for appellant that the case was for Manyoni DLHT as the tribunal Chairman was only visiting from Dodoma. This Court was invited to refer to the documents on record to verify the same if the District Land and Housing for Dodoma is the one which issued the status quo to be maintained. Having heard the rival submissions from the parties, it is pertinent for this Court to determine validity or otherwise of the appeal in the context of the available records. The main aspect in this appeal is the question of the jurisdiction of the trial Tribunal to entertain the matter. The jurisdiction was categorically explained in the case of Fanuel Mantiri Ng'unda v. Herman Mantiri 10 | P a g e Ng'unda & 2 others [1995] TLR 155, at page 159, where the Court of Appeal stated that: The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature. In our considered view, the question of jurisdiction is so fundamental that the courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. This should be done from the pleadings. The reason for this is that it is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case. For the court to proceed to try a case on the basis of assuming jurisdiction has the obvious disadvantage that the trial may well end up in futility as null and void on grounds of lack of jurisdiction when it is proved later as matter of evidence that the court was not properly vested with jurisdiction. 11 | P a g e As the jurisdiction issue is the most compelling issue that gave rise to the appeal, it is pertinent to observe from the record that in pleadings the parties have stated about the question of marital status. The appellant stated that the appellant and 1st respondent have been married sometimes in 2014 and they separated. It was appellant’s version of submission that at the time of sale of the disputed house, the appellant was not living on the said alleged matrimonial home. The 1st respondent stated to have divorced the appellant. The pleadings revealed that the status of marriage between the appellant and 1st respondent was one of the issues to be determined. It is settled law that parties are bound by their pleadings. For instance, in the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) (TANZLII), at page 11, the Court of Appeal stated that: We feel compelled, at this point, to restate the time- honoured principle of law that parties are bound by their own pleadings and that any evidence produced by any of 12 | P a g e the parties which does not support the pleaded facts or is at variance with the pleaded facts must be ignored. In the case of Frank Lionel Marealle vs Joseph Faustine Mawala (Civil Appeal 104 of 2020) [2021] TZCA 728 (3 December 2021) (TANZLII), at page 15, the Court of Appeal stated that: The issue of marital status was not pleaded and therefore it cannot be raised now. It is settled position that parties are bound by their pleadings; see – Charles Richard Kombe t/a Building v. Evarani Mtungi, Civil Appeal No. 38 of 2021; Barclays Bank (T) LTD v. Jacob Muro, Civil Appeal No. 357 of 2019 (both unreported). In the former case the Court stated: -It is cardinal principle of pleadings that the parties to the suit should always adhere to what is contained in their pleadings. In the circumstances, the issues as regards to the existence or form between the deceased and the seller of the land in dispute should not hold us anymore. It fails. 13 | P a g e In Seif Suleiman Rashid (as an administrator of the estate of the late Zuhura Salum Hemed) vs Halima Suleiman (as administrator of the estate of the late Suleiman Rashid) (Civil Appeal No. 463 of 2021) [2024] TZCA 1115 (15 November 2024 (TANZLII), at page 5-7, the Court of Appeal illustrated that: To determine that issue, we need to ascertain whether the disputed property was a matrimonial home of the junior wife, in view of sections 59 (1) of the LMA and 112 (2) of the Land Act. The latter section of the Land Act provides for a definition of a matrimonial home, and it states: "Matrimonial home" means the building or part of a building in which the husband and wife ordinarily reside together and includes- (a) where a building and its cartilage are occupied for residential purposes only, that cartilage and any outbuildings thereon; and (b) where a building is on or occupied in conjunction with agricultural land or pastoral land, any land allocated by the 14 | P a g e husband or the wife, as the case may be, to his or her spouse for her or his exclusive use." [Emphasis added] The catch phrase is "the building in which the husband and wife ordinarily reside together". That too, is the position of this Court, see for instance the case of the National Bank of Commerce Ltd v. Nurbano Abdullah Mulla, [2020] 1 T.L.R. 531, where this Court held that: "(i) From the provisions of section 2 of the Law of Marriage Act Cap 29 R.E 2002 and 112 (2) of the Land Act Cap 113 R.E. 2002, a property will be termed a matrimonial home when the spouses ordinarily occupied it as their family residence.(ii) ...The phrase matrimonial home therefore should [be confined] to the house where the spouses ordinarily reside." [Emphasis added]. From the pleadings, it was evident that both appellant and 1st respondent were not living in that house in dispute as each of them was living in a different house which is not the one sold to the 2nd respondent. 15 | P a g e The parties have divergent contentions between appellant and 1st respondent regarding on the status of the marriage and acquisition of the allegedly matrimonial home and whether the consent was required in the circumstances. In order for the trial Tribunal to determine whether or not consent of the appellant was necessary in the circumstances, there was clear need to establish validity of the marriage in the first place. Second, it was pertinent also to establish that the property was either acquired during subsistence of the marriage or it was used as matrimonial home. All these aspects would entail inquiry on the status of the marriage. In the settled view of this court, the trial Tribunal had no such mandate. Determination of the status of the marriage could only be done by the matrimonial courts as category provided for in the Law of Marriage Act. Section 76 of the Law of Marriage Act, Cap 29 R.E. 2019 provides for the jurisdiction of the Court. It provides that: 76. Original jurisdiction in matrimonial proceedings shall be vested concurrently in the High Court, a court of a resident magistrate, a district court and a primary court. 16 | P a g e Given the prevailing circumstances before the trial Tribunal at Manyoni, it was correct for the trial Tribunal to decline to proceed hearing the matter on account of lack of jurisdiction. The District Land and Housing Tribunal for Manyoni could not have mandate to determine status of marriage between the appellant and 1st respondent which was crucial in determination of the case before the Tribunal. In the upshot, it is firm view of this Court that the appeal lacks cogent merits to stand. It therefore deserves a dismissal in its entirety without orders as to costs. It is so ordered. DATED at DODOMA this 20th day of February 2025. E.E. LONGOPA JUDGE 20/02/2025. 17 | P a g e