zainabu yusufu mamba vs alli a lilacho 1993 tzhc 201 2 december 1993

IN THE HIGH COURT OP TANZANIA ' AT T)AT? ES. SALAAM PC CIVIL APPEAL NO.lb4- OP 1993 (Prom the decision of the District Court of temeke District at Kivukoni Pront) ©nigiatl Appeal No. 62 of 19.9? Prom Civil Case No. 67 of 1991 of the Temeke Primary.Cjpurt APPELLANT ZAINABU YUSUPTJ MAMBA .. versus RESPONDENT #ALLI A. LILACHO ....... JUDGMENT MACKANJA. J . The appellant petitioned successfully for divorce ■before the Temeke Primary Court, Temeke District. The original case arose from alleged matrimonial offences ■which, according to the appellant/petitioner, had led to the marriage breaking down irreparably. She alleged^ before the trial court that the respondent was illtreating her by denying her necessary provisions of life', he frequently assaulted her without cause and that as a result of those assaults she ha reported the incidents to the Police. She later withdrew the charges. All this was not denied and the trial Court found the allegation® established. On the other hand the respondent testified that the appellant had denied him conjugal rights continually for three years; that she is truant and waywarA to the extent of having several extra-marital partnersJ that she is a frequent right-mover who, once, was beaten /2 2 * iPft naked All these allegations were also found ^ o ^ o ^ t ~~ tL : “ 'zrxzrzz g ^ d i s L l v e d was, i n th e sound an, there was a^ple evidence to support it* The respondent was, however disatisf led-. And, so, he appealed -before the District Court at Temeke. he learned District Magistrate observed, quite eorrec ly, that courteof law have a duty to investigate and decide on the evidence before them whether or not the marrxa question has "broken down irreparably before annu ing If the learned trial magistrate had addressed is correctly on the ills which affioted this unfortunate association he would not have faulted the decision of the trial Court. For as I have said, there w a s sufficie evidence which established an acrimonious relations p between the spouses which is not ionducive to a heal y matrimony. !t has come to the notice of this Court that *oth courts below did not consider the issue of cus o y minor children of the marriage. She trial cour s ou ¥ ar the partie* and make orders which are a p p r o p n a e in the circumstances* For the reasons which I have given the appeal is allowed. The decision of the D istrict Court and the order which were made in its appellate jurisdiction are se . The judgment of the trial court is restored. The appellant shall have the costs. Delivered. i // V‘ mackanja / JUDGE 2/12/1993 Appellants Present in person Respondent: Absent*'