19801215 TZHC Dar es Salaam

1/f- ____ _____ IN THE HIGH COURT OF T lM'fZ.ANI.A .-;.; AT D.AR ES SALAAM ( l?C) MilTRIMONIAL CIVIL APPEAL· NO·. 12 OF 1980 (From the decision of the Primary Court .of Miano . · . . .· ' : Bagamo.vo District) . ·.· , .AWESO .ALLY ....... • •••• ~ ••••.••••••••••.••••• .Appellant · · Versu.s (Original Respondent) M.ATUMU S.AIDI ••••••••• , •••••••••• • •••.••••• Respondent .· . · · · · · · '· · · · · (Original Petition)· JUDGEMENT. MAPIG.ANO, . J, -The appell_ant AWESO ALLY is the husband of the respor1:dent M.ATUMP SAIDI. They contracted their marriage under customary law rites about. 24 years ago •. · Six children have been born out of the union. On 9/1/80 the respondent came to th~ _Primary Court at :Miano, Bagamoyo to petition for a decree of dissolution of the marriage. She succeeded and the oout pronounced the divorce on 4/2/80. She had based the petition on cruelty and wilful neglect. This is an appeal from that d~6ision. I think there was sufficient evidence which justified the judgement of the lower court, There was evidence from three witnesses which lent support to the respondent• s assertions. It was established that on two occasio.ns: the 0 appellant had been convicted by court for assaulting· the respondent physically. It was also established t.b,at she has been ·1iving separately, for the last four years, largely in order to avoid the ill~treatment he had been subjecting her' to. The appeliant' s answer to her petion was a general·· denial and a plea of res judicata, . His memo_randum of ap'peal repea'ts the same. But I am satisfied that the lower court was entitlei:1. to accept and act upon the evidence .adauced by the respondent and her 'three witnesses, kid while· I fully' subcribe to the view that divorce is not a matter which· should be treated· lightly, I am quite satisfied that there is no hope in this case that the parties can possibly pick up the pieces and live together again, Res judicata does not avail the appellant. It is true that there has been a previous action 1Btween the parties· before the same court in 1977, The appellant had brought proceedin 6 s to compell the respondent to return to the matrimonial home, .After hearing the parties the court cam_e to the decision that the marriage between them should be dissolved ....• .. ' ? ....I ''- - 2 - after an elapse ·of ninty. days, notwithstanding the fact . that the respondent had neither cross-prayed for divorce nor . specifically ask~d for i1. in her testimony. · On appeal to the District Co·urt of Bagamoyo by the appellant, that decision was upset. ' On a further appeal to this court by - the respondent, it was held that the District ·Court· was right in. setting· aside the decree of divorce. Most importantly, it was ·also held that the action fil,ed by the appellant· in the Primary Court was ·misconceived and not maintainable~ ·by virtue of section 140 of the Law -of Marriage Act, and, accordingly, the proc·eed.ings were found and declared to be a nullity: DSM. (PC) Civ.App• •. No. 31/78 •. In consequence, this appeal is- dismissed with costs •. DAR ES SAL.A.AM 15th December, 1980. JUDGE.• -.