19900316 TZHC Dar es Salaam2

I:N THi HIGH. COURT OF TANZANIA · AT DAR ·Es SALAAM :Pc) MATh. APPSAL NO·. 12 Of 1988 (From the decision of the Distri-ct C.:mrt of Kinondoni Civil Appeal No.20 of 1988 Original Kinondoni Pr.C. Civ.Case .No.4/88) HALIMA ISSA••••••••••••••••••••• APPELLANT Versus JUMA ALLY TINDWA • , •. • • •• • • •••••••. RESPONDENT

J U D G MB N T This is a matrimonial matt~r. The parties got married in~ 1970 and they have five children. In 1987 the?".estarted some-matrimonial misunderstandings. The woman (now appellant) \llSll~ to Bakwata, to complain. Bakwata could not reconcile them. The matter went to court. There, at Kinond,.mi Primary· Court, the woman won the ·case. It was ordered that the marriag~ be dissolved. The hushand Ju.ma All¥ Tindwa never got satisfied. He appealed to the District Court, where Jibrea., SDM reversed the judgment of the primbry court. It is against that de~isian of the District Court that the appellant (woman) appeals to this Court. It seems to me that the learned District Magistrate allowed the appeal on ground that it was n~t proved in the Primary Court that the marr.iage had irreparably broken down as required by section 107 of the Marriage Act (A~t No.5/71). The learneA magistrate was of the view that really what sparkled ' the misun<lerst~nding was the ear-ring incident~ which to him was a min0r thing~ The learned magistrate in his. judgment catego~ically stated that Bakwata had reconciled them and that it was the woman ~ho became ~damant a~d decided to chang~ her mind later, opting divorce. That acti~n bi th0 wowan squarely fell under sectivn 107 (a) of the Marriage Act, 1971. Appellant's meraorandwa of appeal · actually challenges the findings of fact of the learned

distr~~t magistrate and its legal consequences. For exawple, it is argued ' - 2 - in the second ground of appial that it was unfair for the district magistrate to dismiss the allegations of sodomy on grounds, probably that it was not proved by a doctor, as the act of sodomy would probably be done in presence of only the two of them. The appellant ~lso co@plains, in ground . No. three, that the learned District Magistrate also failed to appreciate and hold that beating, scidobising and strippirig of her clothes were actions of cruelty and that these all would lead to a real break dbwn of marriage. J have read the records.and I have als~ listened to th~ parties themselves. I ar.1 afraid, unlike the learned District Magistrate. I, also am of the settled opinion that this marriage ha:. _j_rreparably broken down. It is pointless pretending ·that th.::..,~e two can happily live toge th~ r c1gain. I have my reasons and these are: Firstf if we go by the record, it is amply clear that Bakwata, on the whole held that the respondent {h~sband) was guilty of elm.°st all the charges that were levelled _against hiw, · and ihese also got proved in Court. The allegations were that the respondent had stripped nake~ his wife and called ~hildren to come and view her. Bakwata found that to be true; and even in court it was proved so. There was an allegation that the appellant had stolen ear-rings, but this ~ould not be proved. It was said, in fact, that she did not steal. May be, perhaps, I ·should reproduce the· Bakwata letter in full: KATIBU WA WILAYA 1 BAKWATA, S.L.P.3838, DAR ES SALAAM. Ref. No.W/KND/os/01 05/01/88 Hakiu~ Mfawidhi, Mahakaua ya Mwanzo, Kinondoni

DAR ES SALAAM - YAH: DAAWA: HALIM.A ISS (MKB) DHIDI YA JUMA ALI TnDWA (MrH,IB) Shauri la wafunga ndoa niliowataj~ hapoo juu, li1Jefikishwa katika Baraza 1·angu December 29, 1987, kwamba mke ana lalaraika dhidi ya mume wake kwa haya yafuatayo: ( 1) Mke hapati kutoka. kv,a rnume wake mavazi yanayostahili. (2) Hupigwapigwa bila sababu yeye na uama yake. - 3 - (3) Hulaziwishwa nu u1u1:1e wake kuingiliwa kwa nyuwa (kufilwu) Hus.ingiziwa kuwu aLitii.bc.1 hialeni Kutendew.:.1. vi tendu v;y&. kashfu na uibu_, kuvuliwa nguo kisha kuwaita wat~to, ndugu na majirani iumwancalia; (6) KuratJa ciiuba na kuzipa kizazi bila ridhaa yake. Kwa ·vitend::i hivy:i visivy::ifaa kutendewa .c:ike anataka nc~a yaJ ivunjwe. ( 1) Madai · No .1 2 Baraza lime tcJs.h,eka kuwa kweli yawetendwu i.e •. 1Ike kutupata 11avazi yanayostahili na kupigwa pigwa ~eye na ~a~a yake.. . .

2) Kweli wke alisingiziwa tu kuiba heleni, hakuiba.

3) Kwa hladai No.3 & 6 hatukuweza kuthibitisha •.

4) Kuna Jal.ili kuwu dai N:J.5 kuwa kweli lilitendeka 1 ~}-.Ba..J_,.a,z.a. halikufanikiwa kuwctp~tanisha. 1iTAZfu'10 N.A M,AONI Y,. B1~R.LlZ.l1 ~_}- (1) Mke kut.op-a-t.a wavazi~ inaweza kuwa sababu ya Ndoa . kUYunjika. Muoe hal"Uhusiwi .na sheria ku1i1piga rakewe v,ala rakwewe. n }l. Ma.J:.u.fuku kwa iJuue kur::iwingilia ukewe kwa nyuma. ) Kusin 6 izia ni haramu 5-} Kukashifiwa na kuharibu rnimba oakusudi ni miong,)ni mwa oai:1bo yaliyokatazwa katika Dini. hayo yanaweza kusababisha Talaka. iiiak0sa Ahsante, (iv1. S. Muanga) KATIBU \VA 't/IL,~YJ.... "KINONDONI S? 1 if y-:,u read that letter, really, even Bakwa:ta, let al:me the Court, was of the view that the marriage was be set with a l0t 0f mishaps. Secondly, the rec6rd of the primary court also clearly shows that the □ atrimonial Jffences levell~d at the husband were proved true, tJ the extent that the wh0le c;;urt, including the Cciurt assessors, were of the unanimous view thut the mc.1rriage had broken down. The trial court held th&t there wus beatin~; there w~s lack of Cdre on part of the husband. The ~ppell~nt explained ab~ut the sod~ray_inciJent! She seews tv have i~~ressed them~ There wa~ the stripping incident, The trial court held that it was true. I think going by the record itself, there was, trulyT ample evidence on which t0 hold that the □ arriage has irreparably broken d6wn! I think the learned District

Magistrate overlooked that cardial principle of law: that an appellate co~rt should not lightly interfere with findings of feet by a trial court, - 4 - The trial court, always has a better opportunity of assessing credibility of witnesses, It does so beeause it sees the deraec1n0ur :>f those who testify. Wzy brcther Chip.eta, .J. in a fairly• reeent case ,)f Joseph Francis Mbuni v. •11• .High .Court .Crirainal 4lt_peal jjo_..64 uf 1987 (Tabora Registry), had r.ei~B--rated .±Jius; · "It is now well settled that an appellate CJurt bught n0t tu li~htly interfere with findings of faet by a trial court, parti~la;rly where such findings of faet a~e based on the deme.a.Jlour and general credibility of ~itnesses C'3ie Godfrey Ma-ohange v.- R.- (1977) LRT n.31). A~ appellate court will orrly interfere with su,m findings of faot·where it is clear th;.;1t tr:i,al ,oour-t misinterp.ri0ted the evidence or has otherwi~ plainly gone wrong. This prl.nc.:i.pl& is. based. upon t~ g.e..o.el'al.1.Y .ae-osp.t.ahle fact that a trial eourt has had the advantage ot ..seeing and a.ea.ring the witnesses as they g~ ~den.tt~ and so ob..s,a,rved the der..:ieanour · of·the witnesses, an opportunity which the apve.J.laj;e court does. nQt have in the majurit..Y ~ • .&a~ { ~ .ALt-orne~· C-e..t:l,era,J.. 11-. Sykes 2 T.i;at . (R} 'l.4}) • _u . ihat ls go1ng by the recJri. But,~ ~ n before me,- wh~n the parties

sp-:Jke; I straight awaj" £pt j :•pressed that the woman means· business. She sp0ke in no un•~tain terllls that she is not prepare·d to _f;•J bad~ to the man. A!t,er all,- f0r three years now she is not haying 11ny man, Wld she ;Ls n.., Linger ,interested in c0habi ting with the respondent.. And she .yowed that if she if fureed t::.> go back to him·, it would be bet.t.e. to eommi t suicide-.• I. think the t.)pellant rneans whc;. t she sa.:,s, All in all, I du not see anJ good reasons whJ the letirned Distr~Qt Magistrate ~--. . disturbed the decisLm of the primary court ordering tr., a dissolution Jf the marriaGe- The appeal is allowed• I rest'Jre the deeisiJn of the primary court dissolving the marriage •. The appeal is allowed with costs. ---· ---, ~ /,✓~ J.:.C. Ulasanehe Judge 16th lVlarch, 1990 Appellant present in persjn RespJndent present in pers8n.