ocr tanzlii Mwai DIANA MAKILULI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA HIGH COURT SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE MATRIMONIAL APPEAL NO. 24129 OF 2024 {Arising from the Judgment of the District Court of Temeke at One Stop Judicial Centre in Matrimonial Cause no. 288 of2023 by Hon. Mwaisaka, PRM) DIANA FERDINAND MAKILULI...................................................... APPELLANT VERSUS DIANA FERDINAND MAKILULI (As the administratrix of the estate of the late ENOCK MNKANDE RABIETH.......................................................... RESPONDENT JUDGEMENT Date of last order: 18/12/2024 Date of Judgement: 31/12/2024 S.D. MWAIPOPO, J. This appeal has been filed by Diana Ferdinand Makiluli against Diana Ferdinand Makiluli as an Administratix of the Estate of Enock Mnbande Rabieth, the Respondent in the Matrimonial case filed before the D strict Court of Temeke at Temeke and also the husband of the Appellant het ein. Briefly, the facts of this case are as follows; the Appellant who was the Petitioner in the District Court filed a divorce Petition against her husband, the Respondent then. According to the records available in the electronic - case management system(e-cms), the parties were husband and wife, having been married on September 5, 2010, at the University of Arusha, SDA Church in Arusha Region and were blessed with three issues of marriage namely: Alvin Enock Rabieth (12), Rovin Enock Rabieth (6), and Shavin Enock Rabieth (9 months). During the subsistence of their marriage, the couple lived happily until sometime in 2023 when their marriage turned sour. The Petitioner/Appellant approached the District Court claiming for a declaration that the marriage between the parties had broken down irreparably and also prayed for a decree of divorce to be issued, custody of issues to be granted to her, equal division of matrimonial assets, the Respondent then be ordered to provide maintenance to the tune of 3,000,000/=, the Respondent be ordeied to bear all school and medical expenses, cost of the suit and any other reliefs deemed fit and just to be granted by the court. Responding to the Petition before the District Court, the Respondent did not contest the Petition for divorce. According to the records contained in the e-cms, when the matter was scheduled for hearing, the learned counsel for the Petitioner informed the court that they had agreed to settle the matter amicably and file the resultant Deed of Settlement. They thus prayed for the court to grant divorce, following their address or submissions before the court on the proof of their marriage being irreparably broken down due to loss of natural love and affection between them, denial of conjugal rights, neglect to provide financial support, verbal abuse, the Respondent's relocation to USA and infidelity as alleged by the Respondent then. A copy of Certificate of Msasani Ward Marriage Conciliation Board indicating failure to reconcile the parties was also admitted by the District Court as Exhibit Pl. Thus, relying on the case of John David Mayengo Vs Catherine Malembeka (Pc) Civil Appeal No. 32 of 2003(unreported) the District Court, upon being satisfied that the marriage between the Parties had irreparably broken down, proceeded to dissolve the marriage between the parties and granted a decree of divorce, pursuant to Section 110 of Law of Marriage Act. The parties further amicably agreed in the Deed of Settlement on other issues pertaining to their divorce; such as custody, access and maintenance of children, matrimonial properties and other issues related to the case. The Deed of Settlement was drawn and signed by the parties and their advocates on 15/1/2024 and filed in court. On the 15th of August 2024, the Deed was adopted by the District Court (Hon Mwaisaka PRM) as part of the Judgment and Decree of this court as follows: 1. The custody of issues of marriage shall be granted to the Petitioner and the Respondent shall be responsible to provide Tsh. 600,000/= every month from the date of this judgment for maintenance, payment of school fees to the tune of 3,000,000/= for Alvin and Rovin and 1,000,000 for their uniforms respectively, other expe nses for Shavin about Tsh. 1,500,000/= per year, medical expenses and other necessities which shall be communicated. 2. The Respondent shall have access to the issues when need arises. 3. The matrimonial assets shall be surrendered to the issues, the same shall be registered in the names of issues. The Respondent shall be the legal guardian of the issues in respect of the said properties and the expenses of transfer shall be jointly incurred. 4. In case of breach of terms of agreement, the aggrieved party is at liberty to seek court's intervention. 5. The terms of their agreement may be amended or varied by mutual consent in writing between parties. But in case of disagreements on amendments or variation they may seek court's intervention. 6. Each part to bear the costs of the suit. Aggrieved by the said Judgement, the Petitioner, now the Appellart has approached this court with an appeal based on one ground as follows; 1. That, Hon Magistrate erred in law by pronouncing judgment on 15th August 2024 when the Respondent had already passed away on 7th July, 2023 despite being notified of the death of the Respondent herein. When the case was due for hearing, Ms. Banana Hussein, learned counsel, appeared for the Appellant while the Respondent herein appeared in person in a different capacity of an Administratix of Estate. The hearing of the appeal proceeded by way of written submissions whereby the Appellant in the quest to prove her appeal filed her submissions pursuant to the order drawn by the court. The Respondent in her capacity as an Administratix of the estate expressed her no objection to the Appeal. Hence this court proceeded with the analysis of the submissions filed by the Appellant. Submitting in support of the appeal, the learned counsel for the Appellant, Ms. Banana contended that, the trial Magistrate made a legal and factual mistake by delivering a judgment on August 15, 2024, in a matrimonial case when the Respondent had already died on July 7, 2024 and that despite being informed of the Respondent's death, the Mag strate proceeded with the case. The Appellant referred to a previous case of Amratlal D.M t/a Zanzibar Silk Store Vs A. H Jariwala t/a Zanzibar Hotel [1980] TLR 31, which states that; an appellate court should only interfere with a trial court's findings if there's a clear mistake or miscarriage of justice. The learned counsel for the Appellant emphasized that the main purpose of the case was to dissolve the marriage, which, according to the Law of Marriage Act, automatically ends upon the death of a spouse. Since the Respondent had died before the judgment was delivered, the marriage had already ended by law. Therefore, it was incorrect for the Magistrate to proceed with a judgment for the Petition of divorce after the marriage had already been dissolved by death. The learned counsel's bone of contention was to end the marriage, which was contracted on September 5, 2010, under the Christian rites. According to Section 9(1) of the Law of Marriage Act, a marriage continues as long as both spouses are alive. If one spouse dies, the marriage automatically ends. The Appellant pointed out that the marriage had already been dissolved by law when the Respondent died on July 6, 2024. She argued further that after being notified of the Respondent's death on July 12, 2024, the trial court should have recognized that the marriage no longer existed, making the case irrelevant. She stated that, continuing with the case and delivering a judgment was therefore incorrect and unnecessary, as the primary purpose of the case (dissolving the marriage) had already been achieved by the Respondent's death. On whether the marriage was terminated by death or divorce, she submitted the marriage was ended by death, as the Respondent passed away before the divorce could be finalized. The Appellant questioned the purpose of delivering a judgment after the marriage had already ended and stressed that this situation has called for more than just a technical interpretation of the law. She submitted that the death of the Respondent made the case irrelevant, as the primary goal of ending the marriage had already been achieved through death. Consequently, the judgment was unnecessary and improper. The key question was whether the marriage ended by death or divorce. The Appellant contended that the marriage had ended by death, and the court's judgment was thus pointless and could not be enforced. The Appellant argued that while the trial court relied on Order XXII, Rule 6 of the Civil Procedure Code, which prevents a suit from being dismissed after the hearing is concluded, this rule does not apply to matrimonial cases. Matrimonial cases, especially those involving the termination of a marriage, are different from other civil matters because a marriage cannot continue after one spouse's death. Therefore, once the Respondent passed away, the case ought to have ended automatically, and the court should have ordered the case to be dismissed (abated). The Appellant emphasized that the reliefs sought, such as divorce, depended on the marriage still being valid. After the Respondent's death, the marriage no longer existed, and the court should have not continued with the case. Continuing with the judgment despite the Respondent's death was a significant procedural and substantive mistake. The Appellant also stated that proceeding with the case violated Secti }n 95 of the Civil Procedure Code, which allows courts to make decisions to ensure justice and prevent abuse of the judicial process. The trial caurt's failure to acknowledge the death of the Respondent led to a miscarriege of justice, as the judgment became irrelevant and unenforceable. The Appellant concluded by asking the court to allow the appeal, stating that the case was based on clear legal principles and should be overturned without costs. Having heard the Appellant's submissions, the broad question to be determined in this case is whether this appeal has merit. The key question to be determined is whether the matter before the District Court ought to have abated before Judgement. It is an undisputed fact that the Appellant herein filed a petition for divorce before the District Court of Temeke against her husband, one Emock Mnkande Rabieth whom she is now representing as an Administratix of his estate. Similarly, there is no dispute that the parties herein, were hea'd on the Petition for divorce as stated in the Judgement of the court whereby they both submitted on the aspect of their marriage being irreparably broken down and they also mutually and amicably agreed in the Deed of Settlement on other aspects arising from the divorce such as custody, maintenance and access of children as well as the fate of their matrimonial properties. The Deed of Settlement attached in the e-cms was signed and filed in court on 8th February 2024. According to the proceedings contained in the e-cms, the Judgement of the court was delivered on 15/8/2024 after parties were notified by the order of the court. The appellant has contended that despite informing the court on the death of the Respondent, before the delivery of the Judgement, it still proceeded to give its Judgement by dissolving the marriage between the parties, which had already been ended by death before the delivery of the Judgement. In her submissions the Appellant did not refer the court to any specific evidence contained in the record of the trial court which was submitted before the District Court of Temeke. Considering the fact that all case records are contained in the e-case file contained in the e-cms, including the one at hand, this court perused the proceedings contained in the e-cms in order to crosscheck the said information as whether the Appellant did indeed inform the court on the death of Enock Rabieth on the 12th of July 2024. However, I have noted that the records in the e-cms are silent. I have further observed that the Appellant in her submissions did not make any reference to any record of the court while submitting on this point. Neither did she attach any record on that aspect which transpired in the District Court in her appeal. Futher, the record of the proceedings in the e-cms for July 12th 2024 and 15th August 2025, which I have relied upon and consider to be authentic, read as follows; Coram Date: Friday Jul 12 2024 Case Status: PENDING Case Stage: Judgement Court Room: CHAMBER NO. 3 Coram: R. E. Mwaisaka, SRM Petitioner: Abs Respondent: Abs RMA: Joyce Proceedings Order: Judgment on 15/08/2024, parties to be notified R.E. Mwaisaka SRM 12/07/2024 Stage Date: CASE ADJOURNMENT Thu Aug 15 Stage Time: 11:25:00 2024 Order: Parties to appear Case Stage: Reference: Judgement 18000534315 Hon. REHEMA MWAISAKA Coram Date: Thu Aug 15 2024 Case Status: DECIDED Case Stage judgement Court Room:CHAMBER NO. 3 Coram: R.E.Mwaisaka,PRM Petitioner: Abs/Advocate Ha Proceedings Advocate Lugwisa: The matter is coming for judgment we are ready to receive. Adv Kabwe: lam ready to receive. Court: Judgment delivered in the presence of learned counsels of both parties. R.E, Hon.. REHEMA MWAISAKA Further, none of the records contained in the e-cms indicate that the Respondent then, died before the Judgement date and the said records of the trial court were not availed by the Appellant to this court indicating the issue of abatement. With the launching of the e-cms, all the documents pertaining to the cases which are filed and generated are contained in the Electronic Case File (ECF) including proceedings related to the particular case. See regulation 9 and 34 of the Judicature and Application of Laws (E- filling Rules) 2018 GN No. 148/2018 The question of death is not a question of law, it is an evidential issue which ought to have been raised by the parties in the trial court and brought into this court by way of record since the trial court has power to receive evidence, examine it and make orders in order to meet the ends of justice while also considering the stage the case had reached. Furthermore, even if the Appellant had informed the trial court about the death of the Respondent after the case had already been heard and just before the delivery of the Judgement, I have asked myself as to what would have been the effect of the case considering that the parties had already been heard way back and what was being awaited was on y the delivery of the Judgement. In this regard, I have also revisited the question of death and abatement as far as the law is concerned. The Appellant has contended that the divorce between the parties was terminated by death and that wes the essence of the case before the trial court. The Appellant cited the provisions of section 12 of the Law of Marriage Act which among other things, outlines the duration of the marriage. It states as follows; A marriage, whether contracted in Mainland Tanzania or elsewhere, shall for all purposes of the law of Mainland Tanzania subsist until determined; - (a)by the death of either party thereto; (b)by a decree declaring that the death of either party thereto is presumed; (c)by a decree of annulment; (d)bya decree of divorce; or (e)by an extra-judicial divorce outside Tanzania which is recognized in Tanzania under the provisions of section 92. It has been submitted by the Appellant in this case that, after the hearing of the parties was concluded, the Respondent died before the Judgment was pronounced. The Appellant's main argument is that the ma'riage automatically ended upon the death of the spouse, and therefore, there was no need for the court to pronounce a judgment that cannot be enforceable. The Appellant argued that despite the court being notifed of the Respondent's death which occurred on July 6, 2024, it still proceeded with the judgment on August 15, 2024. From the above provision, I have no flicker of doubt that marriage between parties can be terminated by death of a party or a decree of divorce or any other factors enumerated therein. However, there is also no dispute that the said provisions does not give scenarios in situations when the matrimonial cause has been filed in court and parties have been heard. Further, there is no dispute that in the case at hand, parties had submitted before the trial court that they wished their marriage to have been ended by divorce and assigned their reasons for divorce before the trial court. Thus, their intention to divorce was communicated to the court way before July 2024 and adjudication of the matter had been done. The argument that the end result of the marriage was determined by the death of the Appellant's husband cannot hold water in a situation where parties had already filed a divorce petition that had already been fully heard b/ the court on their intention to divorce and all other matters arising therefrom had already been agreed upon by the parties amicably. The Appellant has also cited the provisions of the Civil Procedure Code relating to abatement, contending that they are not applicable in the situation at hand or in matrimonial causes since these cases are different. First of all, I must state that the provisions of the CPC can apply in matrimonial proceedings if there is a lacuna in the LMA. See section 2 of the CPC. Indeed, under the Law of Marriage Act, there are no provisions governing abatement procedures much as section 12 of the LMA covers death as one the factors for the termination of divorce. Furthermore, the Lew of Marriage Act is silent regarding the procedure of abatement when the hearing for the petition of divorce is concluded when one of the spouse dies before the judgment is pronounced. The law only provides that the marriage between the spouses can be terminated or ended by among other factors; death or a decree of divorce. In the instant appeal, parties had petitioned for a decree of divorce. The issue of death of the husband was not in the picture when the Petition for divorce was being filed or heard or the Deed being drawned and signed. What was in the minds of the partied then was divorce. The argument by the Appellant that death ended the marriage could have held water if brought prior to the filing of the petition for divorce or at least before the hearing of the Petiticn for divorce had been concluded. Since there is a gap in the LMA procecures, the Civil Procedure Code Act addresses this issue, as provided for under Order XXII Rule 6, which states that there shall be no abatement of the case due to the death after the hearing. It reads as follows: - Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be not be abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shah have the same force and effect as if it had been pronounced before the death took place. The Appellant argued that while the trial court relied on Order XXII, Rule 6 of the Civil Procedure Code, which prevents a suit from being dismissed after the hearing is concluded, this rule does not apply to matrimonial cases, especially those involving the termination of a marriage, as they are different from other civil matters because a marriage cannot continue after a spouse death. As adumbrated herein above, the CPC can apply in matrimonial proceedings if there is a lacuna. It is my view that, the death of a party may not automatically terminate the case if the parties have already been heard as it was in this case. Based on the said provisions of Order XXII, Rule 6 of the CPC, the Court could still pronounce Judgement, if aware or not aware of the death as long as parties had already been heard. That is why the provisions have used the word may; i.e. the court may pronounce judgement. The court did pronounce the Judgement. The said provisions reads: Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be ne t be abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place. Therefore, the provisions of Order XXII, Rule 6 of the Civil Procedure Code can be applicable in matrimonial proceedings and the outcome would depend on the nature and the stage the case had reached. In the irstant matter, the parties had already been heard. There was nothing pending except for the judgement. Therefore, the trial court was right in proceeding with the delivery of the Judgement as it did. Thus, the argument by the Appellant that that the provisions of the CPC are not applicable are dismissed in this regard. Based on the analysis made hereinabove, I decline to allow this appeal for lack of merit. In the upshot, the appeal is dismissed. I give no order as to costs. It is so ordered. The right of appeal is fully explained. DATED at TEMEKE this 31 day of DECEMBER, 2024. S.D MWAIPOPO JUDGE 31/12/2024