CIVIL APPEAL 7561OF 2024 MWAJUMA HABIBI VS KILELE ISSA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CIVIL APPEAL NO. 000007561 OF 2024 MWAJUMA HABIBU .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS KILELE ISSA .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J, 10 & 14/02/2025 The appellant has been partly unsuccessful in both lower courts, that is, the trial court, and the District Court which is the first appellate court. She instituted, in the trial court, a matrimonial cause against the respondent clamouring for the reliefs like these: 1. Divorce. 2. Division of the matrimonial assets. 3. Maintenance of the five issues of the marriage. Having heard both parties, the trial court issued the following orders: 1. The marriage between the parties to the matrimonial cause has irreparably broken down, divorce decree is issued to the parties. 2. The petitioner remains with one house which is situated at Katonga area within Kigoma where she should reside with her children. The respondent retains one house situated at Kiluvya area in Coastal region, one motorcycle MC 600 CSX and a business hut (flemu ya biashara) situated at Kigoma bus stand. 3. The respondent should maintain his children at T.shs 200,000/= per month and should continue paying for their school fees. 4. Divorce decree be extracted after 45 days from today. Dismally aggrieved by the decision of the trial court, the appellant unsuccessfully appealed to the District Court, as it dismissed the appeal and ordered the parties to bear their own costs. Angered by the decree of the district court, the appellant came to this Court showing off three vindications I re-echo: Page. 1 1. That both trial and appellate court had no jurisdiction to entertain the case. 2. Both trial and appellate courts erred in law and fact for they failed to fairly divide the matrimonial assets. 3. Both trial and appellate court erred in law and fact for excluding the matrimonial properties that were mentioned by both parties. From those grounds, of appeal, however, the appellant asked this Court for the following reliefs: 1. This appeal be allowed. 2. Decision and orders of the trial and appellate Court be nullified. 3. Any other relief(s) this honourable Court deems fit and just and to grant. The appeal was heard by way of written submissions. Mr. Prosper John Maghaibuni, learned counsel, drew and filed the written submission in chief in support of the appeal. He did not file a rejoinder submission. The respondent had the services of Mr. Sadiki Aliki, learned counsel. Mr. Aliki drew and filed the reply submission for the respondent. I am thankful for their submissions. The counsel for the appellant, Mr. Maghaibuni, contended, with respect to the 1st ground of appeal, that the trial court and first appellate court have no jurisdiction to entertain the matter. He was of the view that, every matrimonial dispute should first be referred to the marriage conciliation board before it has been embarked to the component courts. Where the board fails to reconcile them, it issues a certificate to that effect. He said where the petition was not accompanied by the certificate of marriage is nullity and the court lacks jurisdiction to determine the petition of such a nature. He cited section 101 of the Law of Marriage Act CAP. 29 R.E 2019. He too recited the decision in Hassan Ally Sandali v. Asha Ally, Civil Appeal No 249 of 2019 (unreported) (CAT) where the Court cited the approval the case of Shillo Mzee v. Fatuma Mohamed [1984] T.L.R. 112 Thus, Mr. Maghaibuni pressed that the trial court has no jurisdiction to entertain the matter. On the respondent’s side, Mr. Sadiki Aliki argued that in this case the trial Court satisfied itself that the parties went to the Marriage Conciliation Board and the reconciliation failed and when the appellant petitioned for divorce, she attached with her petition, the certificate (Form No.3) from Marriage Conciliation Board certifying that reconciliation of the parties’ disputed failed, therefore, the trial Court was correct to entertain the divorce petition and the District Court was correct to decide the appeal on merit. He referred me to Deogratius Raphael Nsanzugwako v. Anna Chimpaye, PC. Civil Appeal No. 8 of 2023 2023 TZHC 8 (24 July 2023) on page number 13 of the copy of judgment where it was inter alia stated that: “I had time to go through the entire court record, and I managed to see Form No. 3 which the certificate from conciliation board of Kisukuru dated 24th March 2022 attached to the Form No 2 of the primary court which is the form initiated the claim for divorce and other reliefs prayed by the respondent. In that certificate form No 3, it shows that the board has certified that it has failed to reconcile the parties. Therefore, it is clear from the record that the respondent complied with the mandatory requirement of section 101 and section 106(2) of the Law of Marriage Act, [Cap 29 R.E 2019]”. Page. 2 I have considered the arguments of the counsel for both parties. I should make it irrefutable, in the first instance that, when courts decide cases, they should do so with commons sense. This is not my own creation but it was stated in Samweli Msivangala v. Republic [1980] T.L.R. 319 where Samatta, J., as he then was, at 320 expressed himself that: “The law as I apprehend it is that asportation need not involve a long distance. The slightest movement will suffice. The true test is whether every atom in the article being involved had left the place which that particular atom had occupied. I venture to point out, without, I hope, any disrespect, that if the law were as the two courts below took or thought it to be, the man on the UDA omnibus would have been tempted to ask his neighbor: Why has the law parted company with common sense? I have always understood it to be one of the duties of courts of justice to strive, as far as is possible for the non- existence of friction between the law and common sense, so that the former may continue to enjoy the respect and obedience of the common man. Hosia Lalata v. Gibson Zumba Mwasote [1980] TLR 154.” It should also be borne in mind that where a suit is incompetent, a court of law cannot adjourn it as stated in MIC Tanzania Ltd v. Minister for Labour and Youth Development & Another, Civil Appeal No. 103/2004, (CAT). Truly, the appellant is complaining that the trial court lacked the jurisdiction to entertain the matter for lack of the certificate of the reconciliation board. But it should be noted that prior to commencing a trial, the trial court is enjoined to ensure that it has the requisite jurisdiction to try the case. That is done by looking at the documents used to commence the suit, just like the way the trial court establishes a cause of action as was stated in Stanbic Finance Tanzania Ltd v. Giuseppe Trupia & Chiara Malavasi [2002] T.L.R. 221 where it was stated thus: “… in determining if the plaint discloses a cause of action against the defendant, a plaint must be considered within its four corners including its annexures.” [Emphasis mine]. I have no doubt that the trial court had the opportunity to do so, and it found the certificate of the reconciliation board and proceeded with the firm position that it had the jurisdiction to entertain the matter. I think that what the counsel for the plaintiff was doing, at this appellate stage in the circumstance of this case, was a short in the air. It was the appellant who instituted the matrimonial cause in the trial court. The record shows that the petition form had an attachment of the certificate. If anyone who was supposed to raise an objection is the respondent. He did not raise the same, that implies that he acknowledged that there had been an attempted reconciliation which failed. It appears that the counsel for the appellant did not peruse the court file, he merely based on the proceedings. He should have considered that since the respondent did not raise it, then he acknowledged that they attempted reconciliation and failed. It is what, actually, the counsel for the respondent is stating insisting that the respondent could not object on the same because he knew that they had attempted reconciliation (mediation) and it failed. The case of Sandali cited by Mr. Maghaibuni is distinguishable to the case under my consideration because in that case, it was not a certificate but a mere letter from Bakwata that was attached. If I decide otherwise, the respondent would be left wondering, why has the law parted company with common sense? The ground of appeal is found to be unmerited and it is dismissed. Page. 3 Mr. Magahibuni argued the second and third grounds together. In regard to these grounds of appeal he maintained that it is clear from the record that, there was no fair division of matrimonial assets as according to the laws, the laws provides that the extent of contribution shall be the measurement of the division of the matrimonial assets that acquired by the spouses during their life time of marriage through joint efforts. He added that, proving the extent of contribution, the appellant honestly adduced the evidence to the trial court that, she was the householder and mother of the house who was attending all home activities, caring the children, cleanliness, and other home activities, thus this trial court was required to consider it in relation to the joint contribution of the spouses in the acquisition of the matrimonial assets. Mr. Maghaibuni further opined that it is well noted that the welfare of the family is a greater component in the economic stability and activities of a man or woman or the whole family thus it was proper for the trail courts to considers welfare of the family as the contribution done by the appellant for the acquisition of the family assets illustrated by the appellant during hearing the case in trial court. Mr. Maghaibuni parroted Bi Hawa Mohamed v. Ally Seif [1983] T.L.R. 32. He prayed to be re evaluated again by this honorable court. Mr. Maghaibuni pointed out that the trial court judgement under page 2 of the trial judgement shows that the appellant adduced the evidence that they acquired the house at Chanika Dar-es-Salaam, house at Kigoma, and the house at Kiluvya - Dar-es-Salaam, unfortunately the trial court didn’t distribute the house located at Chanika while the same appellant adduced that was acquired during the marriage life. Believing that this is the second appellate court, Mr. Maghaibuni, pressed, the appellant prays for re-evaluate the evidences that made the division of matrimonial assets of the parties. He finally beseeched this Court that the appeal be allowed and the orders and judgement of the trial court be declared nullity. Arguing the 2nd and 3rd grounds of appeal, Mr. Aliki stated that the counsel for the Appellant submitted that, there was no fair division of matrimonial assets and on extent of contribution as a determining factor for the division the Appellant testified before the trial Court that she was house wife responsible for domestic chores and that the trial Court ought to have considered the Appellant’s contributed to family welfare as her contribution in acquisition of the assets. He said, it is the position of the law that an order of division of matrimonial assets can only be granted if there is evidence of contribution in acquisition of the assets as it is enjoined under the provisions of section 114(1) of the Law of Marriage Act [Cap 29 R.E 2019] which provides that; (b) the extent of the contributions made by each party in money, property or works towards the acquiring of the assets.[Emphasis supplied] Mr. Aliki went on to submit that, the position has been repeatedly emphasized in various cases including the case of Hamid Amir Hamid v. Maimuna Amir [1977] L.R.T. No. 55, that: - "Where a dissolution of marriage is ordered, the question of distribution of matrimonial assets should not be settled until the extent of the contribution of each of the spouses towards the acquisition of the joint property is established. " Page. 4 He further parroted the case of Samweli Moyo v. Mary Cassian Kayambo [1999] T.L.R. 197 in which the Court did inter alia held that: “Held (i) Under Section 114(1) of the Law of Marriage Act, 1971 the Court may order division of assets only if the assets are matrimonial assets acquired by the parties during the marriage and through their joint efforts; (ii) As the assets in this case were acquired neither during the marriage nor through the joint efforts of the parties, the District Court erred in ordering division of those assets.” Mr. Aliki beefed up that, it is not in dispute the properties in question must have been acquired by way of purchase and construction using money. He posed the question: from whom between the parties the money was used to buy and develop the properties? To him, the answer in accordance with the proceedings before the trial Court, it is the Respondent who was doing business and working as a watchman and on the other hand the appellant’s contribution as submitted was house wife. Mr. Aliki thus, submitted that, regarding the extent of contribution of the appellant as house wife and the respondent who was the one earning income which was used in acquiring the properties. He spotlighted that it was fair as it was concurrently decided by the two Courts below to decide to divided the house at Katonga, Kigoma to the appellant and the rest to the respondent who was also ordered by the trial Court to provided Tzs. 200,000/= monthly for children maintenance and to continue to pay for children school fees. Mr. Aliki resisted the persuasion to the Court by the counsel for the appellant who submitted to the effect that this Hon. Court to re-evaluate the award of the division and come up with new position. He urged this Court that it is settled principle of the law that, the second appellate court should not normally interfere with the concurrent findings of the two courts below except for compelling reasons. He, for that stance of the law, exemplified Salum Mhando v. Republic [1993] T.L.R. 170. He added that the counsel for the appellant has not pointed any compelling reasons for this Court to interfere with the concurrent findings of the two Courts bellow on the division of the assets. Airing his view on the case of Bi. Hawa Mohamed v. Ally Sefu [1983] T.L.R. 32 referred to by his learned friend on that domestic activities done by a house wife are also counted as contribution to acquisition of matrimonial assets, Mr. Aliki was clear that they are at one with the counsel for the appellant. He pressed that it was on that basis the appellant was given the house at Katonga, Kigoma though basing on the same case of Bi. Hawa Mohamed (Supra), else, the two Courts below could have even reduced that share regarding that the Respondent credibly testified before the trial Court that the appellant was involving herself in matrimonial misconduct in that she misappropriated money in the Respondent’s business and she engaged in adulterous relationship with another man who rented residence for the appellant and the respondent tendered Exhibit D1 to that effect. Mr. Aliki took the liberty to quote from the case of Bi. Hawa Mohamed (Supra) that: “(iii) where a spouse commits a matrimonial mis-conduct which reduced to nothing her contribution towards the welfare of the family and consequential acquisition of matrimonial or family assets she or he would not be entitled to a share in the property.” [Emphasis supplied]. Page. 5 In the circumstances, Mr. Aliki concluded, the case at hand, the division of the assets was fair and there is nothing submitted to fault the decision by the two lower Courts on either the first or second ground of appeal. He called me to follow the authority in Hassan Mzee Mfaume v. Republic [1981] T.L.R. 167, that the 2nd appellate court may re-evaluate the evidence. Admittedly, this is a second appellate Court and it has to follow the guidance in Wankuru Mwita v. The Republic, Criminal Appeal No. 219 of 2012, CAT where it was stated that: “… The law is well settled that on second appeal, the court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly 10 unreasonable or are a result of a complete misapprehension of the substance, nature and quality of the evidence; a violation of some principle of law or procedure or having occasioned a miscarriage of justice.” See also Joseph Leonard Manyota v. The Republic, Criminal Appeal No. 485 of 2017, CAT. It is, nevertheless, common ground that division of matrimonial property is based on extent of contribution proved as clearly stated in Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 CAT (unreported) where it was held that: “The extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property. … It is clear therefore that extent of contribution by a party in a matrimonial proceedings is a question of evidence. Once there is no evidence adduced to that effect, the appellant cannot blame the High Court Judge for not considering the same in its decision. In our view, the issue of equality of division as envisaged under section 114 (2) of LMA cannot arise also where there is no evidence to prove extent of contribution.” As for me, just as were the two courts below, I am bound by the pleading of the appellant and I cannot grant a relief that has not been prayed for. This is the clear position of the law as per Ibrahim Twahili Kusundwa & Another v. CRDB Bank PLC & 3 Others, Civil Appeal No. 194 of 2021, CAT (unreported) dated 19/01/2024 where it was underscored that: “Secondly, to clinch the matter for the third and fourth respondents, the 1st appellant shot himself in the foot by admitting in his testimony that the property earned him not less than TZS. 362,000,000.00 per annum, which turns out to be TZS 30,166,666.67 per calendar month. The 1st appellant, having made the above admission on affirmation against his own interest cannot now deny the truthfulness of that fact.” Looking at the evidence in record and the submissions of the counsel for both parties, to me, it appears clear that the counsel for the respondent did not seek alteration of the decision of the trial court him being aware of the position of the law that patties are bound by their pleadings as decided in Ibrahim Twahili Kusundwa & Another (supra). For clarity, I re-echo Maria Amandus Kavishe v. Norah Waziri Mzeru & Another, Civil Appeal No. 365 of 2019, CAT, where it was underscored that: Page. 6 “We also feel compelled, at this point, to restate the time-honoured principle of law that parties are bound by their own pleadings and they cannot be allowed to raise a different matter without amendments being properly made. That, no party should be allowed to depart from his pleadings thereby changing his case from which he originally pleaded. Furthermore, the court itself is as bound by the pleadings of the parties as they are themselves.” See also Magnus K. Laurean v. Tanzania Breweries Ltd, Civil Appeal No. 15 of 2018, CAT, Yara Tanzania Limited v. Ikuwo General Enterprises Limited, Civil Appeal No. 309 of 2019 and Dew Drop Co. Ltd v. Ibrahim Simwanza, Civil Appeal No. 244 of 2020 CAT just to mention but a few. The parties and their counsel would readily agree with me that it is mundane law that he who makes an allegation must prove it. Thus, it is for the plaintiff (appellant in this case) to make out a prima facie case against the defendant. That was clearly articulated in East African Road Services Ltd v. J.S. Davis & Co. Ltd. [1965] E.A. 676. The question here is, did the appellant prove her claim to justify her complaint that the division of the matrimonial assets was unfair? I do not think so. I may start by stating the obvious that, in law, a party may prove a fact by oral evidence, which is acceptable. One may, for reference see Abas Kondo Gede v. Republic [2020] 2 T.L.R. where it was stated that: “Oral evidence if worthy of credit, like in circumstances obtaining in the present case is sufficient without documentary evidence to prove a fact or title, thus where a fact may be proved by oral evidence it is not necessary that documentary evidence must supplement that evidence as this is the other method of proving a fact.” The question that follows is, is the oral evidence of the appellant sufficient prove her allegations (complaints)? This question too will be quickly answered in the negative by this Court. First of all, in her testimony in chief, the appellant did not mention any properties, leave alone her contribution. When cross-examined by the respondent, she said, “Mimi ni mama wa nyumbani, sina uwanja wala nyumba. …” Meaning, I am a housewife, I own neither a plot nor a house … I should confess, at this juncture that I do now know what led to the trial court’s examination in which the appellant said they had among other properties, there houses, one at Kiluvya, the second at Katonga but that which is at Chanika, she is not aware about it. Firstly, that examination by the trial court revealed that the appellant did not contribute anything towards its (the house at Chanika) acquisition. If otherwise, she ought to have proved when it was acquired to create an impression that if it was acquired during the subsistence of the marriage, then it could be presumed that she contributed towards its acquisition. Secondly, what the trial court did in its examination, I am afraid, maybe it followed the stance in John Magendo v. N. E. Govani [1973] L.R.T. No. 60 where it was stated that: “Likewise, the object of a civil trial is to do justice to the parties and determine the dispute between them judiciously in accordance with the law. It cannot be overstressed that it is the duty of a magistrate trying a case, not to sit back as a spectator or, to use the Magistrate’s terminology, a referee, and watch the proceedings, but to try the case before him, whether a criminal or a civil one. And in order to arrive at a just decision, in civil cases, the Magistrate is expressly empowered by the Civil Procedure Code to summon witnesses of his own motion, and in criminal cases, he is not only empowered to summon witnesses in his own motion, but it is mandatory for him to Page. 7 do so, if it appears essential to the just decision of the case. For the benefit of Magistrate it is pointed out that failure by a Court to call witnesses when the justice of the case requires it, has resulted in the Court’s decision having been reversed on appeal to a superior tribunal.” Too, maybe, it had in its mind the guidance found in Sabayaga Farmers’ Cooperative Ltd v. Anyony Mwita, [1968] H.C.D. No. 354, where Seaton J., held that: “(3) In the present case the written statement of defence was curable as is shown by paragraph 5 of the memorandum of appeal, which would have satisfied the requirements of Order 8, rules 3, 4, or 5 of the Code. Defendant’s officer was a man of limited education and with no legal experience, and in these circumstances, the trial court erred in striking the written statement of defence. Ex parte judgment set aside, and case remanded to trial court for amendment of the written statement and trial of the case on its merits.” But I cannot go into details of my above explained suspicion regarding the examination of the appellant done by the trial court because the respondent was satisfied by the decision of the trial court that is why there is neither cross-appeal nor indication that he pursued to appeal against the trial court’s decision. The respondent insists that the decision of the trial court is fair. I am alive that, Mr. Maghaibuni submitted at length about the contribution of the appellant towards the acquisition of the matrimonial properties. But the evidence appears to be against her just like the submission of the counsel for the respondent, the respondent testified that the appellant was the trouble maker in the house, by having an affair, squandering the properties of the family, that is inconsistent with making the family to have harmony and being prosperous. The appellant even hid the documentations in respect of the houses. To that end, she ought not to be entitled to any share in the matrimonial properties, but I cannot decide so for the reasons I have already assigned above. Otherwise, with regard to the submissions of Mr. Maghaibuni, in the absence of evidence, the law is clear that submissions are not evidence so, they cannot be substituted for evidence. I am guided in this position of the law by Trade Union Congress of Tanzania (TUCTA) v. Engineering Systems Consultants Ltd & 2 Others, Civil Appeal No. 51/2016, CAT at page 27, Where it was stated that: “In our considered view, the submissions by the appellant’s counsel proposing the contrary, is no more than a statement from the bar which has no evidential value. After all, it is trite law that written submissions are not evidence. See, The Registered Trustees of the Archdiocese of Dar Es Salaam v. The Chairman Bunju Village Government & 4 Others, Civil Appeal No. 147 of 2007 (unreported).” See also Registered Trustees of the Archdiocese of Dar-es-Salaam v. The Chairman Bunju Village Government, Civil Appeal No. 147 of 2006, CAT: “With respect however, submissions are not evidence. Submissions are generally meant to reflect the general features of a party’s case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence.” Page. 8 I may also ask, if the trial Court did not consider the appellant’s domestic shores contribution, for what reason did the trial court distribute to the appellant the house at Katonga? To that end, the second and 3rd grounds of appeal fail. Finally, it may be concluded that, the appeal is unmerited. It is dismissed in its entirety. Each party shall bear their own costs because this is a family case. It is so ordered. Dated at KIGOMA this 14th of February 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 9