Judgement Matrimonal Appeal No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI MATRIMONIAL APPEAL NO. 769 OF 2024 (Originating from Matrimonial Cause No. 03 of 2019 in the District Court of Moshi at Moshi) BERTHA AQUILINE MAKOI………........................................... APPELLANT VERSUS FLAVIAN MICHAEL MARANDU...…………………………… RESPONDENT JUDGEMENT Date of Last Order: 17.07.2024 Date of Ruling :14.08.2024 MONGELLA, J. In the district court of Moshi at Moshi (hereinafter, the trial court), the appellant herein petitioned for divorce and division of matrimonial assets acquired during subsistence of the marriage between her and the respondent. Her claims were to the effect that she is the appellant’s wife having contracted a customary law marriage in 1973. The respondent denied her claims averring that he was never married to the appellant. After hearing the parties, when composing its judgement, the trial court dismissed the appellant’s case for being time barred. Aggrieved by the decision of the trial court the appellant has preferred this appeal on the following grounds: Page 1 of 11 1. The trial court erred in law and in facts in entertained and determined the matter in raising a new issue which was not among the issues framed in the court to be determined. [sic] 2. The trial court erred in law and facts in denied the parties the right to be heard on the issue of the time barred. [sic] 3. That, the trial court erred in law and facts in failed to put proper records as adduced by the parties and their witnesses to the suit. [sic] 4. That, the trial court erred in law and fact in delivering its decision which is not in harmony with the evidence on record. 5. That, the trial court erred in law and facts by entertained and determined the matter and decide in the favour of the [sic] 6. That, the trial court erred in law and facts in determined and heard the matter and deliver the judgment which is contrary to the pleadings. [sic] 7. That, the trial court erred in law and facts in deciding the matter in the favour by using its biasness, emotional, attitudes and views of the respondent without considering that there is contradictory evidence on the respondent side. [sic] Page 2 of 11 8. That, the trial court erred in law and in facts in deciding that the matter was time barred which is not true. The appeal was argued by written submissions whereby the appellant was represented by Mr. Lecktony L. Ngeseyan while the respondent was represented by Mr. Willence Shayo, both learned advocates. In his submission in chief, Mr. Ngeseyan abandoned the 4th and 7th grounds of appeal. He also chose to collectively submit on the 1st, 4th and 6th grounds of appeal which was a paradox considering that he abandoned the 4th ground. He finally merged the 2nd and 8th grounds of appeal. With regard to the 1st, 4th and 6th grounds, Mr. Ngeseyan challenged the trial court for raising a new issue to the effect that the matter was time barred and decided the case basing on the said issue. He contended that as a result, the trial court delivered a judgement that was not in harmony with the evidence on record as well as the pleadings. He added that the issue that the matter was time barred was not even pleaded by either party. Emphasizing that parties are bound by own pleadings the learned counsel cited the case of Juma vs. Manager, PBZ Ltd & Others (Civil Appeal 7 of 2002) [2003] TZCA 4 (12 November 2003) TANZLII, which was referred to in Naiungishu Soikan Mollel vs. Energy and Water Utility Regulatory Authority (ewura). (Labour Revision No. 712 of 2019) [2020] TZHCLD 3749 (30 November 2020) TANZLII. Page 3 of 11 In the circumstances, the learned counsel held the stance that the trial court judgement was a nullity. Further, he faulted the trial court on the ground that the parties were not accorded the right to be heard. Fortifying his averment he cited the following cases; Blay vs. Pollard and Another [1930] KB 311; Scan Tan Tours Ltd vs. The. Registered Trustees of The Catholic Diocese of Mbulu (Civil Appeal. 78 of 2012) [2018] TZCA 472; Yazidi Khassim Mbakileki vs. CRDB 1996 Ltd & Another (Civil Reference No. 14 of 2018) [2019] TZCA 117 (16 May 2019) TANZLII; NCBA Bank Tanzania Limited vs. VEST Tanzania Limited & Another (Civil Appeal No. 321 of 2020) [2023] TZCA 17923 (11 December 2023) TANZLII; Exim Bank Tanzania Ltd vs. Truelite Investment Ltd and Others (Civil Application 446 of 2020) [2023] TZCA 171 (4 April 2023) TANZLII and; Mbeya -Rukwa Autoparts & Transport Limited vs. Jesca George Mwakyoma [2003] T.L.R 251. Submitting on the 2nd and 6th grounds, Mr. Ngeseyan still cemented on his assertion on denial of the right to be heard. He averred that the parties were denied the right to be heard on the matter being time barred raised by the trial court. He considered the omission a violation of the parties’ right to be heard rendering the judgement a nullity even if the same decision would have been made after the parties being accorded such right. He supported his averment with the case of Abbas Sherally and Another vs. Abdul S. H. M. FazaI boy, Civil Application No. 33 of 2002 (unreported); and Margwe Error & Others vs. Moshi Bahalulu (Civil Appeal No. 111 of 2014) [2015] TZCA 282 (25 February 2015) TANZLII. He finalized his submission by emphasizing that the appellant was denied the right Page 4 of 11 to be heard on the issue of time limitation and prayed for the appeal to be allowed with costs. Through his counsel, the respondent opposed the appeal. In his reply submission, Mr. Shayo challenged the appellant arguing that she misconceived the matter at hand since the question of jurisdiction can be raised by the parties or the court. He contended that the trial court deliberated and clearly ruled that time limitation was a matter of law barring the court from proceeding to determine the matter. He added that the court thus had no option rather than determining the said issue. To cement his argument, he cited the case of CRDB Bank PLC vs. Symbion Power Tanzania Ltd (Civil Appeal No.371 of 2022) [2023] TZCA 17594 (5 September 2023) TANZLII. The learned counsel further averred that it was from the parties’ pleadings that the trial court learnt that the matter was out of time. That, the trial court relied on facts pleaded by the appellant and the testimonies of the parties themselves. In that matter, he had the stance that the appellant was availed the opportunity to be heard at the trial court. He found the argument that the appellant was denied the right to be heard being an afterthought. Mr. Shayo finalised his submission by praying for the appeal to be dismissed with costs. Upon observing the submissions of both parties’ counsels as well as the trial court record, I find that the main issue for determination by Page 5 of 11 this Court is whether the trial court accorded the parties the right to be heard on the issue of the case being time barred. It is trite that courts and parties are bound by the pleadings. In that respect, parties can only deviate from the pleadings where the respective court grants leave for amendment. The essence is not to take parties or the court by surprise. This was well emphasized in the case of Barclays Bank T. Ltd vs. Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) TANZLII, whereby the Court of Appeal cited, with approval, a passage in an article by Sir Jack I.H. Jacob "The Present Importance of Pleadings," published in Current Legal Problems (1960) at p. 174 where it was stated: "As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as well bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. While the court and the parties are bound by pleadings, the court may deviate from the same. This is where a point of law such as the question of jurisdiction is noted and raised. It is trite law that the question of jurisdiction can be raised at any stage in the Page 6 of 11 proceedings. See, Indo African Estates Limited vs. Kangolanje Hassani Others (Civil Appeal No 13 of 2022) 2022 TZCA 126 (22 March 2022) TANZLII, whereby the Court of Appeal stated: “We wish first to state in no uncertain terms that, we are acquainted with the position of the law that, the issue of jurisdiction is very fundamental and it may be raised at any stage as it lies at the root of all judicial functions.” The question of time limitation is also a matter of jurisdiction as courts are barred from determining matters in which their statutory limitation has expired. This was well emphasized in the case of NBC Limited & Another vs. Bruno Vitus Swalo (Civil Appeal 331 of 2019) [2021] TZCA 122 TANZLII, where the Court briefly explained: “It is that courts are enjoined not to entertain matters which are time barred. Limitation period has an impact on jurisdiction. Courts lack jurisdiction to entertain matters for which litigation period has expired.” As I have indicated earlier in the brief introduction to this matter, this case was not determined on merit. It is apparent on the judgment of the trial court that the Hon. trial Magistrate raised an issue to the effect that the matter was time barred. His arguments arose from the pleadings by the parties. Specifically, the fact that the appellant had pleaded being deserted by the respondent for more than 20 years. He linked this argument with Item 24 of Part I of the Schedule to the Law of Limitation Act [Cap 89 R.E 2019]. The contest Page 7 of 11 in this appeal is not on the merit of the decision reached by the Hon. trial Magistrate, but rather the legality of the same. I as well find three issues uncontested, being: one, that the trial court suo motu raised the question of time limitation; two, that the parties never pleaded the issue and; three, that the parties never addressed the issue. This fact was well within the knowledge of the Hon. trial Magistrate as well indicated on page 4 where he stated: “From the above pleadings, the question to be asked is to whether the matter has legitimacy to be entertained in merits as regarding to time limits. Before discussing this issue, the court wises to put clear from outset that this issue was not addressed by the parties and was not among the issues raised by this court.” Courts are not barred from raising new issues, especially matters that would impact the jurisdiction of the court. However, time and time again, courts have been warned and corrected to never take parties by surprise through the judgement or decision. Parties ought to be called and informed of the respective issue discovered by the court and accorded the opportunity to address the court on the issue. Courts are therefore employed to re-open the proceedings and summon the parties to address the court on the legal issue discovered during composition of the decision. The omission to do so is a direct violation of the parties’ right to be heard. This renders the decision of the trial court a nullity, irrespective of whether the same decision would have been reached or not if the parties were heard. This position was well expounded in the case of Charles Page 8 of 11 Christopher Humprey Kombe vs. Kinondoni Municipal Council (Civil Appeal No. 81 of 2017) 2020 TZCA 1932 (12 June 2020) TANZLII, where the Court of Appeal cited its holding in the case of John Morris Mpaki vs. NBC Ltd and Ngalagila Ngonyani, Civil Appeal No. 95 of 2013 (unreported) and observed: "The law that no person shall be condemned unheard is now legendary. It is trite law that any decision affecting the rights or interests of any person arrived at without hearing the affected party is a nullity, even if the same decision would have been arrived at had the affected party been heard. This principle of law of respectable antiquity needs no authority to prop it up. It is common knowledge.” See also; Petro Robert Myavilwa vs. Abel Mwalibeti & Others (Civil Application No 640 of 2021) 2024 TZCA 108 (23 February 2024) TANZLII; and National Microfinance Bank PLC Another vs. Lello Laurent Sawe (Consolidated Civil Appeals No. 385/339 of 2021) 2024 TZCA 17 (6 February 2024) TANZLII. As evident it is, the trial Magistrate raised the issue on the time bar in his judgement without according the parties the right to be heard. The argument that such issue is borne from pleadings is immaterial. The arguments the trial Magistrate raised as to claim the mandate to determine the issue which he supported with the case of CRDB Bank PLC vs. Symbion Power Tanzania Ltd (supra), are not relevant at all. In fact, he misconstrued the facts behind the case in which the Court of Appeal delt with a situation where an issue was indeed addressed by both parties although not a framed issue. The issue was also eventually determined by the trial court. The Page 9 of 11 Court of Appeal blessed the High Court’s stance to allow parties to address the same as being appropriate. Such circumstance is different from the ones in this case. Here, the question of time limitation was neither raised nor addressed by any party. The trial court thus ought to have accorded the parties right to address it on the same. Apart from the observation made hereinabove, I also find the trial Magistrate went astray in raising the question of time limitation in matrimonial proceedings filed at first instance. The Law of Marriage Act, does not provide for any time limitation in instituting matrimonial proceedings for divorce and division of matrimonial assets. I suppose the non-provision of time limit was by design and not default considering the unique nature of the marriage institution whereby relations can get sour or better at any time despite couples living in separation. As a matter of fact, the Law of Marriage Act, under Section 100 prohibits petitioning for divorce before the expiry of two years. In that respect, the time limit is set for the minimum period under which a spouse can petition for divorce from the date of marriage to the date of cause of action and not from the date of the cause of action. It should be recalled that in proving that the marriage was irreparably broken down, the appellant claimed desertion by the respondent for a period of twenty years. Desertion is one of the pieces of evidence under which a spouse can prove that the marriage is irreparably broken down provided under Section 107 (2) (e) of the Law of Marriage Act. The same provision provides for the Page 10 of 11 minimum time limit of three years under which a spouse can petition for divorce from the date of desertion. This means that for a court to agree with the petitioner that desertion exists, the petitioner has to prove that he/she has been deserted for a period of not less than three years. Evidently, the law does not provide for the maximum limit under which a spouse can be barred from petitioning for divorce in court from the date the desertion occurred. As such, I find it was a misconception on the part of the trial Magistrate to invoke the provisions of the Law of Limitation Act on matters in which time limitation has not been provided to raise and decide suo motu that the petitioner was time barred. In consideration of the foregoing observation, I hereby nullify the judgement and decree of the trial court as well as any subsequent orders originating from therefrom. In addition, I order the matter to be remitted to the trial court for proper composition of the judgement in consideration of the issues framed and the evidence on record. Dated and delivered at Moshi on this 14th day of August, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 11 of 11