Hidaya Hassan

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODMA DC CIVIL APPEAL NO. 38 OF 2023 (From the District Court of Kondoa in Matrimonial Cause No. 02 of 2017) HIDAYA HASSAN..................................................... APPELLANT VERSUS BURA NADA............................................................. RESPONDENT JUDGMENT Last Order: 6th June 2024 Judgment: 16th July, 2024 MASABO, J.:- The appellant in this appeal is disgruntled by the judgment and decree of the District Court of Kondoa in Matrimonial Appeal No. 2 of 2017. The brief facts discernible from the record are that the parties were a married couple. In 2017, the appellant filed a matrimonial petition before the trial court seeking for dissolution of the marriage. She alleged that her marriage to the respondent which was contracted through Islamic rites has broken down irreparably. The petition was heard ex parted respondent. The ex parte judgment thereof was delivered on 26th September 2017 whereby, the marriage was dissolved and a subsequent order for equal division of the matrimonial assets to the parties acquired during the subsistence of the marriage was issued. Page 1 of 11 The appellant was unhappy because the order for the division of matrimonial assets appeared vague as it did not specify the assets subject for division. She appealed to this court. After hearing the appeal, this court established that, indeed the assets were not listed. Hence, the decree was inexecutable. Consequently, it decreed that the record be remitted to the trial court for it to compose a new judgment indicating the matrimonial assets and how those properties should be divided. The record was remitted to the trial court whereby it was assigned to Hon. Kahamba, RM (the re-assigned magistrate). As per the record, on 14th August 2023, the appellant appeared before the re-assigned magistrate who notified her that, upon perusal of the record he had found that, first, there is no supporting document on the listed properties. Second, there was no evidence showing how the petitioner contributed to the acquisition of the said matrimonial assets. Third and in view of the above, he had found it just that, the appellant be allowed to bring additional evidence and he ordered her to bring 'a clear proof to show the existence of the listed properties and adduce additional evidence proving her contribution on the alleged matrimonial properties.' The appellant did not bring the additional evidence. So, the re-assigned magistrate proceeded to compose a judgment. In the judgment delivered on 30th August 2023, the trial magistrate held that the petitioner (the appellant) failed to prove the existence of marriage between her and the respondent and he consequently dismissed the petition. Page 2 of 11 Aggrieved by the dismissal order the appellant has once again knocked on the door of this court by way of appeal. Her appeal has three grounds of appeal which all revolve around one issue that, the trial court erred in not complying with the order of this court which only required it to compose new judgment and not to rehear the petition. Hearing of the appeal proceeded by way of written submissions. Submissions by the appellant were drawn and filed by Mr. Fred Peter Kalonga, learned counsel whilst those of the respondent were drawn and filed by Mr. Robert Melea Owino, learned counsel. In support of the grounds of appeal, Mr Kalonga submitted that the trial court erred in not complying with the orders of this court which only required it to compose a new judgment with a focus on the distribution of matrimonial properties. Thus, it was materially wrong for the re-assigned magistrate to require additional evidence. Also, he erred in deciding on the existence of the marriage as in doing so, he usurped powers that he did not have and overturned the decision of his predecessor who had previously held that the parties were legally married. He added that, even if there was an error in that finding, the re-assigned magistrate being a resident magistrate had no powers to alter or amend the judgment pronounced by another resident magistrate. In fortification of his submission, he cited section 44(1) of the Magistrate Courts Act Cap 11 and the case of Shyam Thanki and Others vs. New Palace Hotel (1971) EA 199 where it was held that all the courts in Tanzania are created by statutes and their jurisdiction is purely statutory. Page 3 of 11 In the alternative, Mr. Kalonga submitted, that even if the intention was to render justice, the trial magistrate ought not to have overturned the decision without affording the parties the right to be heard. In reply, Mr. Owino submitted that the order given by this court was complied with. The record was remitted back to the trial court and the re­ assigned magistrate having looked into the proceeding formed an opinion that additional evidence was required and having examined the record further while composing the judgment, he observed that there was no proof that the parties were legally married. On the issue of the division of matrimonial properties, Mr. Owino submitted that the same could have been done if it was proved that the parties were married. Under section 114 of the Law of Marriage, the distribution of the matrimonial properties comes after the court has established that the parties had a marriage and that their marriage has broken down beyond repair. It is a consequential order to the decree of divorce or separation. On the complaint that the trial court's dismissal of the petition for want of proof of the existence of the alleged marriage was made in contravention of this court's order, he argued that it is misplaced because the decree of this court required the trial court to compose a new judgment. As the order did not stipulate as to what should be contained in the new judgment, the trial court's judgment was well in order. On the complaint that the re-assigned magistrate acted ultravires by overturning the decision of his fellow magistrates, he argued that this too is misplaced as there was neither a Page 4 of 11 judgment nor decree as the same had been nullified by this court. In conclusion, the respondent's counsel submitted and argued that the appeal lacks merit and therefore should be dismissed with costs. I have considered the grounds of appeal alongside the records and the submissions of both parties. Undisputably, the marriage between the parties was dissolved on 26th September 2017 by the District Court of Kondoa in Matrimonial Appeal No. 2 of 2017. Later on, this court exercising its appellate jurisdiction, nullified the judgment and decree and subsequently directed that a new judgment be composed indicating all the matrimonial properties and the division thereof. It is also undisputed that, after the parties went back to the trial court, the re-assigned Magistrate formed an opinion that for the interest of justice, the new judgment could not be composed as the evidence adduced before his predecessor was insufficient. Therefore, he took the evidence afresh, a procedure which is challenged by the appellant for being lucidly wrong as the trial Magistrate surpassed its jurisdiction. Accordingly, the sole issue for determination is whether in taking the new evidence and rehearing the case, the Magistrate surpassed his jurisdiction. Before I delve into this issue, let me state at this outset that, in deciding this question, I will be guided by the following principles. First, jurisdiction, simply understood as "the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a formal way for its decision." (see Halsbury’s Laws of England, Vol. 10, para. 314) is significant and so basic that such that, before entertaining any Page 5 of 11 matter, the court must be satisfied that it is clothed with the necessary jurisdiction in the case of Fanuel Mantiri Ng'unda V Herman Mantiri Ng'unda & 20 Others, [1995] TLR 155 - CAT (unreported) where the Court of Appeal held thus:- "The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature ... The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial... It is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case."(Emphasis mine). Second, and as correctly submitted by Mr. Kalonga, jurisdiction is a creature of statute. Hence, cannot be assumed nor conferred on the court by the parties (see Shyam Thanki and Others vs. New Palace Hotel (supra); Edwin Fabian Tallas & Mohamed Ally Masha Vs Republic, Criminal Appeal No. 285 of 2014 CAT (unreported) and National Bank of Commerce Ltd vs National Chicks Corporation Ltd & Others (Civil Appeal 129 of 2015) [2019] TZCA 345 TanzLII. The district court whose decision is at the epicentre of the present appeal, is a creature of section 4 of the Magistrates' Courts Act, Cap 11 R.E 2022. It Page 6 of 11 I derives its jurisdiction from this Act and other statutes. It is enjoined with original powers as stipulated under section 40 of this Act as well as appellate and revisional powers stipulated under sections 20 to 24 of the Act. In the instance case, Mr. Kalonga is challenging the trial court's compliance with the directive of this court and his major argument is that, having been directed by this court to compose a fresh judgment to address the distribution of matrimonial assets, the trial court ought to confine itself to such directives. There was no room whatsoever for the re-assigned magistrate to require additional evidence before composing the fresh judgment. By requiring additional evidence, the trial magistrate materially erred as it surpassed its jurisdiction. In addition, it has been argued that the impugned decision basically overturned the decision of the predecessor magistrate who found that the parties were legally married and having found that the marriage had broken down irreparably, he dissolved it. In further amplification of these two issues, it has been argued that the nullification order of this court in Matrimonial Appeal No. 02 of 2017 did not span beyond the distribution of the matrimonial assets. It left the proceedings and the divorce decree intact. Thus, the trial magistrate had no jurisdiction to disturb it. His sole duty was to compose a judgment based on the proceedings found in the record, nothing else. Therefore, by requiring additional evidence before composing the judgment, the re-assigned magistrate acted utra vires and clothed himself with appellate powers over the decision of his fellow magistrate, powers which are a reserve of an appellate court. Further, it has been argued by Mr. Kalonga that, by reopening the proceedings and Page 7 of 11 overturning the decision of his predecessor, the re-assigned magistrate proceeded functus officio. I will start with the first argument. Having looked into the judgment and order of this court in DC Civil Appeal No. 46 of 2022, I have found that, the appellate judge decreed as follows: 1.1 nullify the judgment of the District Court of Kondoa at Kondoa in Matrimonial Cause No. 02 of 2017 and the decree thereto. 2. This matter be remitted to the trial court for it to compose a new judgment 3. The judgment should indicate all matrimonial properties and how those properties should be divided and either necessary order the court may consider justice. 4. No orders as to costs In my firm view, these directives were loud and clear. It entertains no doubt as to its scope and neither does it show any ambiguity. As correctly submitted by Mr. Kalonga, the role of the re-assigned magistrate was to compose a fresh judgment itemizing the matrimonial properties and how those properties should be divided, not otherwise. While reading the impugned judgment, I noticed that the re-assigned magistrate found refuge under the phrase "and either necessary order the court may consider justice" as appearing in item 4 of the decree. With respect to him, that was a lucid misconception as the said phrase should not have been read in isolation. Its Page 8 of 11 reading and application ought to have proceeded under the confines of item 4 meaning that, it had to be exclusively on the distribution of the asset. In the foregoing, I subscribe to Mr. Kalonga's view that by requiring new evidence, the successor magistrate erred materially. He also erred in overturning the decree of divorce which was neither challenged by the parties nor decreed upon by this court. The decision was, therefore, arrived at in usurpation of the jurisdiction by the successor magistrate. Needless to emphasize, as correctly submitted by Mr. Kalonga, the powers for reversal of a court decision are a reserve of a superior court and is normally done through appeal or revision instituted by the court suo motto or at the instant of an aggrieved party because, in law, once a court has pronounced its judgment it cannot reopen it save on instances allowed by the law as, after deciding such issue, it becomes functus officio. As held in Kamundu vs. R (1973) EA 540: - A court becomes functus officio when it disposes of a case by a verdict of a guilty or passing sentence or making some orders finally disposed of the case. This principle was cemented in Bibi Kisoko Medared vs. Minister for Lands Housing and Urban Developments and Another [1983] TLR 250 where it was held that: - In a matter of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio. Page 9 of 11 Also, in Hassan Ng'anzi Khalfan v. Njama Juma Mbega and Another, Civil Application No.336/12 of 2020 [2021] 3185 TZCA TanzLII, the Court of Appeal while discussing its review powers, remarked that:- "We wish, in the first place, to point out that powers of the Court to review its decision constitutes an exception to the general rule that once a decision is composed, signed and pronounced by the Court, the Court becomes functus officio in that it ceases to have control over the matter and has no jurisdiction to alter or change it. [emphasis added] The other exception, I would add, is where there is a directive of the superior court such as in the instant case where it had been directed that the trial court compose a new judgment putting clarity on the issue of matrimonial assets and the distribution thereto. Since the directive was specific and had no instruction on divorce decree which was, as per the record, is not a ground of appeal, the successor magistrate had no basis upon which to disturb the finding of his predecessor. By disturbing it, he acted functus official and clothed himself with appellate powers over the decision of a fellow magistrate, which he did not possess. That said, I have found merit in the appeal and allow it. In consequence, there to, I nullify, quash, and set aside the proceedings of the trial court from 31st July 2023 and its judgment dated 30th August 2023 and the decree thereto. It is further directed that the record be remitted back to the trial court so that the decree of this court dated 5th May 2023 can be complied with. In the interest of justice and considering the lengthy period already Page 10 of 11 spent in pursuit of this matter, let the record be placed before another magistrate who shall expeditiously compose the judgment. This being a matrimonial appeal, there are no costs. It is so ordered. DATED and DELIVERED at Dodoma this 16th day of July 2024 J.L. MASABO JUDGE Page 11 of 11