20111120 TZHC Dar es Salaam

-♦ ---- IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL REVISION NO. 23 OF 2011 ( Originating from the Court of Resident Magistrate of Dar es Salaam afKisutu in matrimonial cause no. 19 of 201 OJ HALIMA SAIDI . . . . . . . . . . . . . . . . . . . . . . .APPLICANT VERSUS OTHUMAN IDDI MWACHA .. . . . . . . . . . . RESPONDENT Date of last Order: 18/ 7I2011 Date of Ruling: 20/10/2011 RULING KARUA, J. The applicant, Halima Saidi, and the respondent, Athman Iddi Mwacha, were man and wife. Their_ marriage was celebrated on the ·15 th March, 2002 in Dar es Salaam 1 • and is· blessed with two children, namely, Khanifa and ,. \. Khania. In 2010 the respondent petitioned for divorce at the RM's Court Kisutu on grounds of incompatibility and the applicant's dishonesty and unfaithful behavior. On the other hand, in her answer, the applicant strongly disputed these allegations and insisted that the respondent molested her and on many occasions threatened to kill her. The trial court, on 5th July, 2010, recorded to "have audience" with both parties and accordingly held that the marriage was irreparable and proceeded to issue a decree . of divorce. What the parties 'said in the ·"audience" was not recorded. The trial court then set the case for hearing on custody of the children and division of matrimonial assets. On 13 th October, 2010 the court granted custody of the children to the applicant, their mother, on ground that both children were below the age of seven years and therefore their mother was entitled to take care of them. On 18th February, 2011, the trial court ordered sale of the matrimonial house at market price and that the proceeds be divided among the parties. Seven days later on 25 th f'ebruary, 2011, the respondent brought the sum of Shs. 2 ....... 12,500,000/= and asked the court to give the money to ~ ' the applicant as her share in the· matrimonial house and that he be allowed to retain the house and his two children. Quite surprisingly, the player was granted. The turn of events, annoyed the applicant, who has preferred an application under section 44 ( 1) of the magistrate courts Act and Section 79 ( l)(c) and Section 95 of the Civil Procedure Code, to revise the proceedings and orders of the lower court dated 25 th February, 2011 and those of 2 nd March, 2011. The application was preferred and argued before me by Mr. Mafwele, learned advocate, on behalf of the applicant. The application is. supported by the affidavit of the applicant. On the other hand, the application is resisted by Mr. Mapinduzi, learned counsel, on behalf of the respondent. In opposing the application, the respondent has sworn a counter affidavit. Perhaps, at this juncture, I should thank the learned counsels who made very valuable written submissions which I shall have regard to, in the course of this ruling. In his submission in support of the application, Mr. Mafwele, contests the trial Court decisions on several fronts. In the first place, this is what he says:- 3 " ..... that the .proceeding$ and . . . . orders of the trial court.... are tainted' with fl1ega·litfes, improprierities, incorrectness and irregularities which has caused error material to the merit of the case involving . . t·ice ,, 1n1us Mr. Mapinduzi conceded. He agreed that the proceedings and orders of the trial court, made in determination of this case, were in shambles and were indeed, tainted with incurable illegalities, improprieties, incorrectness and irregularities which, affected greatly the..· ends of justice. Mr. Mapinduzi yielded by demonstrating that his client presented a very good case including documentary exhibits. However, all their arguments were not recorded by the trial court. Foristance, he says, that the applicant and the respondent demonstrated that their marriage was broken down irreparably. However, the concession did not reflect in the proceedings. Indeed, no reasons were assigned for the decision reached. Mr. Mapinduzi' went on to say:- 4 "Your lordship the respondent in this matter presented to the court all the evidence orally and documentary exhibits to explain the subsisting situation on the rights of each party in terms of custody of the children with regard to the best interest of the children as well as the position of the matrimonial property including households and matrimonial house... all these matters do . not reflect in the record ..... with no doubt that we submit that in this matter there is no judgment at the end. of the case as such there are only several orders and the magistrate did not write a reasoned judgment to the detriment of the parties..... We agree that this omission is material irregularity which goes to the root of justice. In this regard an order for -.~ ... trial de novo will help to cure the defect. ., 5 I have followed and considered these arguments and I would, in all circumstances of this · case, respectfully , sustain the reasoning of both learned counsels. In the first place, the trial court dissolved the marriage on 5 th July, 2010, on the ground that the marriage had broken down irreparably. The order of the trial court was couched this way:- 05/07/2010 Coram: Hon. Mirumbe - PRM Petitioner: present in person Respondent: Mr. Kadogo Cc: Flora Court: Upon audience of both parties it seems that the marriage is irreparable. Order: The decree of DIVORCE is hereby issued. Sgd. Hon. G. Mirumbe - PRM 05/07/2010 6 . .Indeed, as rightly recounted by Mr. Mafwele and as conceded by Mr. Mapinduzi, the narration of each party in the 'audience', whatever that meant, which convinced the trial court to reach that conclusion, were not recorded. Without mincing words, this material irregularity is incurable. So were the conflicting orders that the trial magistrate made on 13 th October, 2010; 18th February, 2011 and that of 25 th February, 2011. Three factors are eminent and evident 1n this case. Firstly, apart from the fact that the trial magistrate did not record the evidence and the submissions made by the parties, which in itself, as demonstrated, nullifies the proceedings in this case, I would, with respect, agree with the two learned counsels, that the .orders made ~ by the learned trial magistrate was fraught with dissatisfaction. This is because the learned trial magistrate did not state reasnns for his orders. One cannot stress too strongly the importance of giving reasons for, or the basis of, conclusion reached. It is not enough merely to· set out conclusions without setting out the process of reasoning which has led to that conclusion. Moshi, J., emphasized the point this 7 way, in the case of Gilbert Nzunda Versus Watson Salole, . . PC Civil Appeal No. 29 of 1997 (unreported):- ''In any judicial proceeding, failure to give reasons for any step taken and any order made and any decision reached is not a proper judicial exercise of discretion. Justice is never meted out on whims or arbitrarily. Justice is evaluated not by looking only at the end result of the case, but also by_ the manner in which that results · in reached. Perhaps the learned district magistrate is yet to grasp the full import of the pri.nciple echoed by Lord Howard, C.J. in Rex. V. Sussex Justices ex-parte McCarthy (1924) I K.B. page 259, that: "It is not.• merely of some importance, but · is of fundamental importance that justice should not only 8 be- -done, but . should . . - . manifestly and undoubtedly be-seen to be don:e" It is a question of transparency. Transparency and justice are inseparable. One of the essential components of transparency in the administration of justice is to give reasons for all the steps taken and all the orders made and all the decisions reached. Any step taken and any order made- and any decision reached without assigning reasons must be quashed on appeal. The second component of the irregular order is that, even if the trial court had recorded the position of the parties, on whether the marriage had broken down or not, the court cannot issue the decree of divorce summarily. This is what Luanda, J., (as he then was) said in the case of R v R [2004] TLR N 121. There are indeed, two schools of thought in this matter. The other one is led by Biron, J., who elucidated his position in the case of Butiku versus 9 . Butiku [ 1987] TLR No. 1. In the case of Butiku, Biron~ J., held that in a matrimonial cause where the parties are not at issue that the marriage has irretrievably broken down, the decree absolute dissolving the marriage should be issued. Biron, J., invoked the provisions of sub rule (2) of rule 29 of the Marriage (Matrimonial Proceedings) Rules, 1971, which calls upon the court to try a petition of divorce as if it were a suit under the Civil Procedure Code 1966 and therefore put into pray order XV which calls upon the court to pronounce judgment at the first hearing where parties are not at issue. However, Luanda, J., does not agree. He argues that the proper section to be invoked is section 107 ( 1) and (2) of the Law of Marriage Act, 1971, which places a burden upon the court, when deciding whether the marriage is broken down irreparably, to gather all the evidence and take several factors into account, listed in subsection (2) as evidence of a broken down marriage. According to Luanda, J., the Act does not confer a party to a matrimonial proceedings an automatic right to a decree of divorce. The party to the proceedings has to establish that a matrimonial offence has occurred. The court should first, resolve the question whether the marriage has broken 10 ,. down and secondly, whether it is reparable. Lua-nda-, J., elaborates the rationale:- " ........ the legislative has imposed a duty upon the Court of law to see to it that marriage should not be easily dissolved. The rationale is not far to . seek families are foundation of a nation and it is truism that strong families breed strong nation. So Court of law should not be a place for rubber stamping, rather they are required to handle matrimonial dispute with judicial care. Of course this does not mean the Courts should go to the extent of forcing the parties to stay together; not at all. Courts of law have no such mandate. Having said thus, I am of the opinion that applying Order XV, rule 1 of the Civil Procedure Code 1966 .in matrimo,fial proceeding will defeat the whole concept of judicial care. And as 11 • procedural rules are not supposed- to ' override substantive law, I hold that order should not be applicable in matrimonial proceedings .. - With respect, I am persuaded and, indeed, that in my views, is the correct position in law. Perhaps, I should also add some few grains of salt in the pot in respect of the rationale. The institution of marriage 1s immemorial. It has always been sacred and indispensable to the social order. The foundation of strong marriage is absolutely necessary for the best interest of the children. The institution offers security to women and men too, find in it a permanent recognition and the best background for useful and efficient work and most men perform quite well because of the strong relationship between man and wife, hence increasing economic development. It is Byron, who said marriage is the bloom or blight of all men's happiness. B.P. Beri in his book the law of marriage and Divorce in India make the following comment:- "The importance of the institution of the marriage is too well recognized to 12 require any comment. It is the source of every domestic comfort, from infancy to old age; it is necessary for the preservation and the well being of our species; it awakens and develops the best feelings of our nature; and it is the source · of important, legal rights and obligations." Samatta, J., (as he then was) made a remarkable reminder, in the case of Mwifundo Mtanga V Tumnyisigwe Mbukwa [ 1982] TLR No. 260 when he said:- "It is against public policy t~ dissolve a marriage which-has not irreparably broken down. Since · marriage is an institution which confers a status to the parties to it and upon the children that issue from it. The public has legitimate interests in ensuring, though courts of law that sufficient respect is accorded to the binding sanctity of the institution" 13 M-ro-sso, J., (as-he th-en was) iti the case of Alatwinula . . ~ . Mbala Versus. Beneti Nkwama Civil Appeal 'No. 9 of 1985 (unreporte-d)_:irtsists-that:- "The institution of marriage is far too important to ·be brushed aside so casually" ·The Parliament 1n its wisdom bearing in· mind the importance of_ this institution, devised a mechanism that .. assists spouses to resolve - their matrimonial difficulties before divorce. These are marriage conciliation Boards created by the provision of Section 102 ( 1) and (2) of the law of Marriage- Act 1971 Cap 29 [R.E 2002] Again Samatta, J., in the cited case of Mwifundo, observes;_- "The rules provided for in •the law of Marriage Act are, inter alia, designed to encourage reconciliation and the confir-mation of marriage life and to discourage divorces: see for example 1 the requirement •.that before a matrimonial .- disput~_ is taken to a court of justice it should ·be referred to a Marrl.age Conciliatory Board" " ' 14 It was once observed elsewh-ere, by. a learned man, upon such an occasion, that marriage is an institution of ' the highest sanctity in our- societies which must be ·protected at all costs. This is what Luanda, J ., attempts to demonstrate and achieves in the cited case. There was another serious irregularity. This is the ,third element of the improper .orders made by the trial magistrate. The applicant was condemned unheard. The -~· · order made on the 25 th February, 2011 gives a very vivid example:- 25/02/2010 Coram: Hon. Mirumbe - PRM Petitioner: present Respondent: present Cc: Grace Petitioner: I pray to retain the house with my two children. I have brought a total of Tshs. 12,500,000/ for the respondent. 15 Court: The house the su-bject .matte.r of this petition be retained by the petitioner· as prayed. He- wi-1:l- stay with the two issues of the marriage while the respondent is looking for alternative accommodation. Sgd MirumbePRM 25/03/2011 There is no doubt at all, that the applicant, who was present when these proceedings were being conducted, was a silent participant. The record reveals that it was only the respondent who was given an opportunity to t>e heard and his words were recorded. The applicant was not afforded an opportunity to be heard. She was not given an opportunity to express her feeling on the sum of money brought by the respondent and the change of heart over the custody of the children who were granted to her. The trial magistrate had 16 · earlier bestowed the applicant with the custody of the . \ children· because the children were below the age of seven years and were therefore fit to stay with their mother. The trial magistrate change of heart cannot be comprehended and is not a proper exercise of judicial discretion. More so when her views were not sought. She was indeed condemned unheard. Samatta, J., in another refreshing case of Abdalahaman Mponzi versus Daudi Mbwilo, Mbeya civil revision no. 1 of 1999, (unreported), docketed: "If there is one principle better settled and more revered than any other in the administration of justice it is that no one should be condemned unheard". The trial magistrate action was nothing but a travesty of justice and reminds me of a popular Yoruba saying that "wicked and iniquitous is he w~o decides a case upon the testimony of only one party to it." I pen off by observing that a grievous injustice was done to the parties by the trial magistrate in this case. As 17 rightly demonstrated by the parties, the trial magistrate did \. not conduct a trial, as required by the law, to the detriment of the parties, who will have to call off again their productive activities and bear another delay and financial inconveniences in their further dispensation of this case. At the end of the day the trial magistrate made several orders whose sources could not be ascertained and his proceedings were deeply tainted with illegalities, 1 improprierities, incorrectness and irregularities, which has indeed shaken the root of justice in this case. Bearing in mind the nature of the serious errors, that I have demonstrated above, committed by the trial magistrate, 1 am of the settled opinion that the decision of the trial court cannot be left to stand. In the interest of justice, it must be quashed. Consequently th~ proceedings and all orders of the trial court are quashed. The case is directed to commence a fresh before another magistrate of competent jurisdiction. It is so ordered and directed. 18 . ' "\'f_:t jff S.-V.G. Karua J;r;./' JUDGE ·., >--,,...,~.,... ,.r~.,,,_,,,•. ....___..,,;,~:✓ ~.""'" 20/11/2011 DATED AT DAR ES SALAAM Appearances: For the applicant: Mr. Ugunde For the respondent: present in person 19