Ruling BETRHA CHARLES v MAKOYE ATHUMANI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MWANZA

AT MWANZA MATRIMONIAL APPEAL NO. 64 OF 2023 (Arising from Matrimonial Appeal No 5 of 2023 before Geita District Court and originating from Matrimonial Cause No. 16 of 2021 before Nyankumbu Primary Court) BERTHA CHARLES…………………………..…………….………………. APPELLANT

VERSUS MAKOYE ATHUMAN …………………………………..………….……..RESPONDENT

RULING 29th April & 14th June 2024 ITEMBA, J. The appellant herein was aggrieved by the decision of District Court of Geita in Matrimonial Appeal No 5 of 2023. He appealed before this court with three grounds of appeal. This ruling is in respect of one point of objection raised by the counsel for the respondent that, the entire appeal is bad in law and incompetent because it is against an interlocutory decision and orders contrary to section 43 (2) of the Magistrate Court Act Cap 11 R.E 2019 (MCA). The background of this matter started with Matrimonial Cause No. 16 of 2021 before Nyankumbu Primary Court (the trial court) where the appellant herein petitioned for decree of divorce and division of matrimonial properties. The trial court found the marriage between the parties to have not been broken beyond repair. It issued a decree of 1 separation. The Respondent appealed to the District Court (Matrimonial Appeal No. 16 of 2016) where their marriage was found to have been broken down irreparably. The District court remitted the file before trial court for grant the divorce. The appellant was aggrieved and appealed before this court through PC Matrimonial Appeal No. 17 of 2022. This court faulted the District court to have failed to enter into the shoes of the District Court and issued a decree of divorce, it went ahead to issue a decree of divorce and further ordered the file to

be remitted back to the Primary court for division of matrimonial assets. When the file was remitted, the respondent did not appear before the trial court, the trial court divided matrimonial assets in the respondent’s absence. The respondent applied before the trial court to set aside the exparte decision with regards to division matrimonial assets. The trial court dismissed his application. The respondent appealed to District Court against the decision of the trial court refusing to set aside its decision. The District Court set aside the ruling of the trial court and ordered the matter to be heard afresh, interpartes. Against this decision of the District Court, the appellant filed this appeal. I ordered the preliminary objection to be heard by way of written submissions. The submissions were drawn by Messrs. Pauline Michael and Daniel Malugu learned advocates for the respondent and appellant 2 respectively. It was the submission by Mr. Michael that, section 43(2) of the Act bars appeals on interlocutory decisions or orders of the District Court and Resident Magistrates Court. That, the ruling of the District Court which ordered the matter to be heard inter parties had no effect of finalizing the suit hence interlocutory. He prayed for the appeal to be dismissed. The relevancy of the appellant’s reply submissions was that; the decision of the trial court was not exparte as

the file was remitted back by this court only for division of matrimonial assets after issuing a decree of divorce. That, parties had already adduced evidence during trial before appeal to the District Court and to this court. That, the file was just remitted back to the trial court for determination of issue regarding division of matrimonial properties. That, the decision of the District Court is not interlocutory it has the effect of terminating the appellants’ right because some properties have already been sold to third parties by the respondent contrary to the order of the trial court in Matrimonial Cause No. 16 of 2021 which ordered parties not to sell or dispose any property. He went further that, appeal is a creature of the law as enshrined in article 13(6) (a) of the Constitution of the United Republic of Tanzania, 1977. That, S. 43 (2) of the MCA was inappropriately applied by the respondent on this appeal because, appeals from primary court to 3 District Court and then to High Court are regulated by the Law of Marriage Act Cap 29 R.E 2022 (the Act). That, Section 80 as rectified by The Rectification of Printing Errors) (The Law of Marriage Act [Cap. 29 R.E 2019) Notice, GN No. 487 of 2022 provides the right and procedures of appeal. It reads; “80 (1) Any person aggrieved by any decision or order of a primary court, or by any decision or order of a district court, may appeal from that court, respectively, to the district court or to the High Court. (2) n/a.

3) Save to the extent provided in any rules made under this Act, the provisions of the Civil Procedure Code relating to appeals shall not apply to appeals under this Act.” He stressed that, according to this provision, any decision of the Primary Court and District Court in matrimonial proceedings is appealable. That if the legislature would have intended, the decisions which set aside ex parte decisions to be not appealable, the law would have stated clearly as how it is stated by order XL rule 1 (d) of the Civil Procedure Code Cap 33 R.E 2019 (the CPC) which bars appeals on decision setting aside exparte judgement. That, matrimonial proceedings are peculiar in nature, they involve relationship, relatives, children and property therefore the intentions of the legislature should not be undermined. To back up his 4 standing that every decision in matrimonial proceedings is appealable, Mr. Malugu went further that, specific law prevails over general law. He referred me to the case of Director of Public Prosecutions versus Kishinadini Degeshi, Criminal Appeal No. 339 of 2018 which cited at page 18 and 19 with approval the case of John Sendama versus Republic, Criminal Appeal No. 279 ‘B’ of 2013 which held that; “Normally, such a statute [of general application] would not apply where there is a specific legislation in existence on a specific subject, unless the wording of the

particular provision suggests otherwise by the use of such word as ‘notwithstanding’” Mr. Malugu further submitted that, in the CPC there is the same provision as s. 43 (2) of the MCA which bars appeals on interlocutory proceedings, that is section 74 (2) of the CPC. That, the legislature knowing that an order setting aside ex-parte decision is not an interlocutory decision had a separate provision which bars such appeals in civil proceedings under Order XL Rule 1 (d) of the CPC is not applicable in matrimonial proceedings, but rule 9 to 39 of Order XXXIX. In that, an appeal may be filed only against the decision which refused to set aside exparte decision. Further reference was made to the case of Paul A. Kweka and another vs Ngorika Bus Services and Transport Company Limited, Civil Appeal No. 129 of 2002 (unreported). 5 He went on that, Rule 39 of the Law of Marriage (Matrimonial Proceedings) Rules, GN. No 139 of 1971 made it applicable the provisions of Rule 9 to 39 of Order XXXIX of the CPC not order XL rule 1(d) therefore the legislature never intended to bar appeals against decision setting aside exparte decisions in matrimonial proceedings. That, rule 39 of Matrimonial Proceedings Rules provides; “The provisions of rules 9 to 37 (inclusive) of Order XXXIX of the Civil Procedure Code, shall apply mutatis mutandis to an appeal to which this Part applies” That, Rule 38 (c)

of Matrimonial Proceedings Rules requires the court to decide matrimonial appeals according to substantial justice without undue delays and technicalities. He therefore prays for the appeal to be allowed with cost. The counsel for the respondent filed no rejoinder. I have considered the rival positions of parties herein. I will now determine whether the decision of the District Court in Matrimonial Appeal No. 5 of 2023 was interlocutory and whether this appeal is barred by law. It is the law that, no appeal or revision shall lie against interlocutory decision of the court. In determining whether the decision is interlocutory, the test is whether such decision has an effect of finalizing the right of parties. See the case of Mic Tanzania Limited and 3 others vs. 6 Golden Globe International Services Limited, Civil Application No. 1/16 of 2017 (unreported). In this matter, the decision appealed against is a decision of the District Court which set aside the decision of the trial court refusing to set aside exparte ruling with regards to division of matrimonial properties. According to respondent, such decision is interlocutory. In The case of Dennis Francis Ngowi Appellant vs. Asteria Morris Ambrose, Civil Appeal No. 90 of 2014 (unreported) the appellant appealed to the Court of Appeal against the order refusing temporally injunction to restrain the respondent from disposing

matrimonial assets pending determination before the High Court. While discussing section 5(2) (d) of the Appellate Jurisdiction Act Cap 41 R.E 2019 which is a replica of section 43 (2) of the MCA, the Court of Appeal stated at pages 3 and 4 of the ruling as follows; “The section is very clear. It mandatorily bars appeals against decisions and orders given by the High Court which do not finally determine the matter in dispute between the litigating parties. The High Court is yet to be told what the parties acquired during the subsistence of the marriage. That issue is still pending in the High Court. The procedure of appeal taken by the appellant to appeal against the decision of the High Court was therefore wrong.” (emphasis added). 7 Guided by this authority it is my considered view that, the decision of the District Court would have been interlocutory if it was passed on interlocutory issues before determination and distribution of matrimonial assets between the parties. In this matter at hand, the list of what constitutes matrimonial assets was itemized and divided between the parties herein. Setting aside that decision aside and ordering parties to be heard afresh has an effect of suspending enforcement of rights of a party which was already adjudged. Such decision cannot be said to be interlocutory. As correctly argued by Mr. Malugu, appeals in matrimonial proceedings are

governed by section 80 of the Law of Marriage Act which allows appeal from every decision of the Primary Court and District Court. I also agree with Mr. Malugu that, although section 74 (2) of the CPC (which is a replica of section 43 (2) of the MCA) bars appeals on interlocutory proceedings, the CPC has a separate provision which disallow appeals on decision setting aside expert judgement that is Order XL rule 1 (d) of the CPC. If the legislature would intend that a decision setting aside exparte judgement to be interlocutory, there was no need to include the later provision of law as it would have been covered by the former. Further, Mr. Malugu was correct to draw attention of this court on Rule 39 of matrimonial proceedings rules which made only the provisions 8 of Rule 9 to 39 of Order XXXIX of the CPC applicable to appeal and not Order XL rule 1 (d) of the CPC. Therefore, I agree that, the legislature did not intend to bar appeals against decision setting aside exparte decision from lower courts in matrimonial proceedings. That being said and done, the point of preliminary objection lacks merit and therefore overruled for the appeal to be heard on merit. This being matrimonial proceedings, I order no costs. It is so ordered. Dated at Mwanza this 14th day of June 2024. L. J. ITEMBA

JUDGE Ruling delivered in chamber in the presence of the appellant and Ms. G. Mnjari, RMA and in the absence of the respondent. L. J. ITEMBA

JUDGE 9