20151113 tzhc arusha2

IN THE;HIG COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA AT ARUSHA MISC. CIVIL APPLICATION NO.167 OF 2015 (C/F High Court of Tanzania at Arusha Civil Appeal No.11/2015, Appeal from the decision of the District Court of Arusha in Civil Appeal No.19 of 2014, originating from Maromboso Primary Court Matrimonial ½ause No.113/2013) I CHAUSIKU HAMISI IDD ............. ~ ............................... APPLICANT VERSUS I I JUMA SALEHE MAKONGO ..........•............................ RESPONDENT ' ' RULING S.M. MAGHIMBI, J This application for leave to appeal to the court of appeal is brought under the provisions of Section 5(1) (c) and Section 5(2) (c) of the Appellate I Jurisdiction Act No. 15 of 1979, Cap. ' 141 R.E 2002.The leave sought is to I appeal against the Judgment of this Court in (PC) Civil Appeal No. I 11/2015. The application was supported by an affidavit of the applicantdated 12/08/2015. I Both parties appeared in person and by an application of the applicant and ' having no objection from the respondent, the matter was disposed by way of written submissions. I I In her submissions in chief, the applicant prayed that the affidavit in support of her application be adopte~ in its entirety. Apart from that she 1 -I did not make substantive submissions. She stated her grounds for the appeal as that (1). The appellant judge did not take into consideration the mandatory provisions of Section 114(1) of the Law of Marriage Act, Cap. 29 R.E 2002 as regards the division of matrimonial assets. In his reply, the respondent submitted that the honorable court is not justified to grant leave to the Applicant to appeal to the court of Appeal as there are actually no points of law to be determined by the Court of appeal since the points of law raised by the Applicant are points which have in fact been considered by all the court below and decisions made thereon. He argued that the lower courts, namely the primary Court, the appellate district court and subsequently this honorable court in fact relied on and interpreted the two provisions ( on which the applicant relied for appeal to the Court of Appeal) to determine the suits before them. The respondent submitted that the applicant contention that the appellant judge did not taken into consideration the mandatory provisions of section 114(1) of the Law of Marriage Act (supra) has no legs to stand on in the eyes of law as it was the applicant herself who failed to prove her allegations by failing to tender any document evidencing the same. He argued further that the applicant misconceived the meaning, essence and rationale of section 114 (1) of the Law of marriage Act, (supra) by quoting just a part of it and leave the rest of the provision which is the whole of section 114(1) and (2) (a) - (d) and (3). Most of the respondent's arguments were based on the intended appeal hence will not be considered at this point. 2 In her rejoinder, the applicant also argued on the ground of appeal which I wiU not consider at this point, the matter having been concluded by this Court, it is the jurisdiction of the Court of Appeal to analyse the grounds of appeal. The applicant argued on the basis that the court was supposed to have inclined towards equality of division as mandated by Section 114 (2) (d) of Cap 29 and that is why she is applying that this matter be adjudicated by the Court of Appeal in which the matter can be re considered. Further that though the trial court had ruled that the applicant should be given households staffs acquired during the relationship of the parties herein, yet those households staffs were never mentioned anywhere hence it formulated a right in a paper, but in actual sense, that right is not there and the applicant obtained nothing like households staffs. The applicant argued that this is irregularity to be decided by the Court of Appeal. Having considered the submission from the parties and the records of the application, and after considering the fact that there are points of law to be determined, I herebyallow this application. The applicant is hereby granted leave to appeal to the court of appeal against the High Court Judgment in (PC) Civil Appeal No. 11/2015.I give no order as to costs. Application Allowed. Dated at Arusha this 13th day of November, 2015 SGD S. M. MAGHIMBI JUDGE 3 I I i hereby certify this to be a true copy of tne original. (. . . y Deputy Registrar High coJrt Arusha' ' I ' I I I I I 4