20181224 TZHC Dodoma

>1 IN THE HIGH COURT OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA PC MATRIMONIAL APPEAL NO. 8 OF 2018 (Arising from Matrimonial Appeal No. 1 of 2018 of Kondoa District Court of Kondoa, Original Matrimonial Cause No. 5 of 2013 of Kondoa Urban Primary Court) H ALl DI I1 Ol-IAFtI ED ...... •....... ........ ......... . . •... UAPPE LLANT VERSUS MWAPWANI HASSAN SOLOKA ..............................RESPONDENT 1011212018 & 2411212018 JUDGMENT MASAJU, J. The parties, the Appellant, Halid Mohamed Ally and the Respondent, Mwapwani Hassan Saloka, were once spouses and their Islamic marriage was blessed with seven (7) children. The Respondent successfully petitioned the Appellant for divorce in Kondoa Urban Primary Court in Matrimonial Cause No. 5 of 2013 where the decree of divorce was given by the trial Court along with the order for distribution between the parties of matrimonial assets that had been jointly acquired by, them during the subsistence the marriage and the order for maintenance of children. The Judgment of the trial court dated the 14th day of April, 2014 was delivered 1 or on the 28th day of April, 2014. The Appeuant did not appeal against the Judgment/decision of the trial court but unsuccessfully he has objected the execution of the trial court's decree in the trial court and in the District Court of Kondoa respectively, hence this appeal in the Court. There is no application by the Appellant for stay of execution pending appeal. The Appellant's Petition of Appeal reads thus; "PETITION OF APPEAL That the abOve named Appellant has been aggrieved and discontented by the decision of the Honourable L. Jangndu -RM dated 1510512018 in the above cited case, and copy of decision supplied on 0110612018 hence wish to state as follows; That, the honorable appellate court erred in law and fact to dismiss the appeal whereas the lower trial COurt dismissed the object/oh filed by the Appellant without giving him the fundamental right of being heard. That, also the honorable appellate court was wrong to dismiss the appeal without considering that the honourable primary court magistrate who decided the case had shown biasness, hehce was incapable of giving just and fair dec/s/on. That the honorable appellate court erred in law and fact for failure to discover that had the honorable trial primary court magistrate could have heard the case fully she coUld not have reached her decision. WHEREFORE, the appellant prays that the appeal be allowed with costs" 4 - The Respondent, on her part, flied the Reply to Petition of Appeal which reads thus: "REPL Y TO PETITION OF APPEAL The Respondent here/n above being furnished with the appellants Petition of appeal wished to reply the same as hereunder; That, the content of paragraph 1 of the Petition of appeal is vehemently disputed and I further avers that the appellate Court gave the decision based on the evidence available, the lower court • gave the ri'ht to be heard, where I did not wish to reply the objection filed by the appellant, hence I left the matter to the court to determine. The matter was not a fresh case but it's an execution -• of the matrimonial judgment. The allegations that we were denied right to be heard is fictitious as the appellant filed his objection which attached exhibits to support. Or otherwise the Appellant is put to strict proof thereof That, the content of paragraph 2 of the petition of appeal is vehemently disputed and I further avers that the honourable trial magistrate had no interest and did not attend the fresh matrimonial case no. 512013, hence the allegation that the primary court magistrate was bias has no leg to stand. Or otherwise the Appellant is put to strict proof thereof, That, the content of paragraph 3 of the Petition of appeal, is vehemently disputed and I further avers that the Court is directed by 3 '4 laws, and not the parties importunity/demand. Or otherwise "the appellant is put to strict proof thereof WHEREFORE: The Respondent herein prays:- , The decision of the appellate coUrt he Upheld This Petition 'of Appeal be dismissed. Cost of the 'case be provided Any other. relief (s) this Honourable Court may deem fit and just to grant" The court has to reproduce, in extenso, the Parties pleadings in this appeal because, when the. appeal was heard in the court on the 10th day of December, 2018, the laymen parties appeared in persons and fully adopted their pleadings namely, Petition of Appeal and Reply to petition of Appeal by the Appellant and the Respondent respectively to form their submsions for and against the appeal in the Court. The Appellant prayed the Court to allow the appeal whilst the Respondent prayed the Court to dismiss the appeal. The parties, waived their prayers for costs. That is all as regards the submissions by the parties. . It is clear from the record of the trial Court and the l st appellate court, Kondoa District Court, that the trial court's decision and the orders thereto in Matrimonial Cause No. 5 of 2013 have never been quashed nor set aside by any Court of competent jurisdiction, the Appellant 'having had not appealed against the said decision. But the Appellant has appealed against the dismissal of his objection to the order of execution of the decree 4 against him. There is also no any order as to stay of execution of the said decree. The Court is of the considered and responsible position that in the absence of the subsequent decision by the Court of competent jurisdiction that might have set aside the trial Court's decision this appeal was a moot one. The appeal was also intended to circumvent the procedure for the would be appeal against the trial Cout's originaidecision in time. Secondly, the allegation by the Appellant that the parties were or rather the Appellant himself was denied the right to be fully heard and that the trial magistrate was biased against him are just afterthoughts not supported by what is obtaining in the record of the trial Court. The parties, the Appellant inclusive, were afforded with a fair trial as both of them were heard by the trial Court, given opportunity to call witnesses, cross - examine witnesses, right to raise objection. As a matter of fact, the Appllant successfully raised objection against the would be 4th prosecution witnesses to testify in the Court for the Respondent. The parties were also given the opportunity to tender exhibits in the trial Court, and they so did. This was done during both the trial of the matrimonial etition ancl during objection against Decree execution. There was no. evidence that the trial magistrate was biased against the Appellant. The Appellant would have asked for the trial magistrate's recusal if he honestly believed that the trial magistrate wasbiásed. This appeal lacks merit in its entirety, and it is hereby dismissed accordingly. The lower Courts' decisions are hereby so upheld.The parties shall .bea.r their own costs - -5