higombeye scan

IN THE HIGH COURT OF THE UNITED REPUBLIC OFTANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA PG CIVIL APPEAL NO. 21 OF 2023 (Arising from Appeal No. 10 of 2023 of the District Court of Mpanda and Matrimonial Cause No,41 of 2022 at Shanwe Primary Court) HIGOMBEYE WILFRED GWALEMA............. ..... APPELLANT VERSUS MARYCIANA SHE KA.................... RESPONDENT Date of Last Order: 11/06/2024 Date ofJudgement: 11/09/2024 JUDGEMENT NANGELA, J.: This is a second appeal. It arises from a decision of the District Court of Mpanda, Katavi Region, as a first appellate court, in Civil Appeal No.10 of 2023. The brief facts are that, in the year 2022, the respondent filed a Matrimonial Cause No. 41 of 2022 at Shanwe Primary Court seeking for a divorce order and division of all matrimonial assets. The trial court heard and determined the matter in favour of the petitioner. Having ascertained which properties constituted matrimonial properties, after valuation, the trial court proceeded to divide the proceeds in the ration of 65% (in favour Page 1 of TO of the appellant herein) and 35% (in favour of the respondent herein). The properties divided were two houses located at Plot No.412 EE KiEimahewa, Mpanda. The respondent was not pleased by the way the trial court divided the matrimonial properties. Being so aggrieved, She filed an appeal No.10 Of 2023 in the District Court of Mpanda, at Mpanda seeking to overturn the decision of the trial court. After hearing the parties, the first appellate court ordered that the respondent herein be given a 60% of the proceeds of properties deemed matrimonial property, leaving all other orders made by the trial court intact. Unsatisfied, the present appellant appealed against the judgement, decree and orders of the first appellate court the Appellant herein appealed before this court, his appeal being based on the following grounds: 1. That, the first appellate court erred in law and fact when it issued orders that were not supported by its reasoning in its judgement. 2. That the first appellate court erred in law and fact by awarding highest par centage (60%) of the single house located at Kilimahewa to the Page 2 of 10 respondent contrary to its final decision, which state the ground was dismissed. 3. That, the first appellate court erred in law and fact by giving the appellant a small share of the house located at Kilimahewa contrary to its judgement which held that the respondent was the one who was justified to receive the highest share. On the 25th of October 2023, this court (Mruma, J) ordered the parties herein to proceed disposing of this appeal by way of written submissions. A schedule of filing was issued, and the parties duly complied. On the 4th of April 2024 the parties appeared before this court and indicated that they were bent to have the matter resolved amicably. Although this court granted them an opportunity to do so, they however failed to come to terms with each other, hence, this judgement. During the hearing of this appeal, the appellant enjoyed the services of Mr. Lawrence John, learned advocate, while the respondent fended for herself. In his submission, it was Mr. Lawrence's submission when this appeal called for orders on the 25th of October 2023, he had raised before this court an issue regarding custody of a child named Jolene Higombeye Gwalema (by then aged 5 years). Page 3 of 10 His concern was that that child had been returned to the appellant against the orders of her custody, which were made by the trial court on the 24th of March 2023 and were never overturned by the 1st appellate court. According to Mr. Lawrence, it is important to have that issue canvassed in this appeal, noting that orders of the court must be obeyed. He supported his view by citing the cases of Ka.rori Chogoro vs. Waithage Merengo, Civil Appeal No. 164 of 2018 (CAT) (Mza), (unreported) and that of Harron Pirmohamed vs. Mayasuki Soejima [2014] T.L.R. 286. Mr. Lawrence contended that the respondent was doty bound to obey the orders of the court, which placed Jolene (4 years) under her custody and Mugisha Higombeye Gwalema (8) under the custody of the appellant. Unfortunately, the issue raised by Mr. Lawrence was an issue raised during his submission and was not one of the grounds of appeal. As a matter of principle, parties are bound by their pleadings. The case of Paulina Samson Ndawavya vs. Theresia Thomas! Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) is quite instructive. The rationale for that is to ensure that the: opponent party is not Page 4 of 10 taken by surprise. See the case of James Funke Gwagilo vs. Attorney General [2004] TLR 161. It is also worth noting that submission by an advocate in court cannot be a substitute of proof. Such a stance was aired by the Court of Appeal of Uganda in the case of Trasafrica Assurance Co. Ltd vs. Cimbria (E.A) Ltd (2002) E.A cited with approval by the Court of Appeal in the case of Tina & Co. Limited and 2 Other vs. Eurafrican Bank (T) Ltd, now known as BOA Bank (T) Ltd, Civil Application No. 86 of 2015 (CAT-unreported), where the court held that: "As is well known, a statement of fact by counsel from the parties is not evidence and therefore, court cannot act on." For such reasons, I will not accept to be drawn into an issue that was not, in the first place, raised as a ground of appeal in this appeal. In his submission regarding the grounds of appeal, which seem to have been argued together, it was the learned counsel for the appellant's submission that, as a matter of principle, a judgement must be supported with reasons to justify its findings. He relied on the cases of Hamis Dibagula vs. Republic [2004] T.L.R 181, Nyundwa Kundinga vs. Page 5 of 10 Republicz [2008] T.L.R 289 and National Housing Corporation vs. Ettienes Hotel [2017] T.L.R 432. Mr. Lawrence contended that looking at the judgement of the first appellate court, there are material contradictions and ambiguities wherein the learned first appellate: magistrate dismissed the grounds of appeal raised by the respondent (see pages 12 and 13 of the judgement of the 1st appellate court) and granted a 60% share of the properties to the respondent (see page 16 of the 1st appellate court) without assigning reasons. Relying on the case of Hidaya Ally vs. Amiri Mulungu [2015] T.L.R 329 (CAT) noting that, since the first appellate court did note that the appellant was the biggest contributor, it was incumbent for it to have awarded the appellant with that share as the trial court did. He urged this court to allow this appeal, quash and: set aside the decision of the first appellate court, and grant any other appropriate relief which this court deems fit. The respondent filed her submission in reply. She submitted that the learned first appellate magistrate was right to award a 60% share of the matrimonial property to the respondent as he considered all facts and calculated all other Page 6 of 10 generated Income and assets as constituting the matrimonial property. She submitted that the appellant was granted all other remaining properties, such as the plot at Mapinduzi, Kasokola Shamba, Kawajense Plot, Njombe House, Motor Vehicle Registration T.479 DKT, and MC 118 BBN Boxer (Motorcycle). On that basis, she urged this court to dismiss this appeal and uphold the judgement and orders of the first appellate court. The appellants counsel filed a rejoinder submission. In short, he reiterated what was submitted in chief, noting that during trial the respondent failed to show her contribution, which would have entitled her to a greater share of the matrimonial property (the two houses located at Plot No. 412 Block EE Kilimahewa. Having considered the rival submissions, the issue for my consideration and determination is whether this appeal has any merits. The principle that applies to a first appellate court is that it has all the rights to re-evaluate the evidence of the trial court and may arrive at its own independent verdict. See the case of Future Century Ltd vs. TAN ESCO, Civil Appeal No.05 of 2009 (CAT) (unreported). The first appellate court was rightly Page 7 of 10 guided by that principle and did re-evaluate the evidence. The only issue is whether it arrived at a correct answer or not. As I stated herein above, this is a second appeal and not a first appeal. Unlike the wide powers enjoyed by a first appellate court, when it comes to a second appellate stage, the second appellate court does not have such a wider margin of interfering with concurrent findings of the trial and the first appellate court unless there are compelling circumstances. The legal position was, therefore, best clarified by the Court of Appeal in the case of Martin Kikombe vs. Emmanuel Kunyumba (Civil Appeal 201 of 2017) [2020] TZCA 224 (13 May 2020). In that case, the Court of Appeal made it clear, as a trite law that: "a second appellate court's power to interfere with concurrent findings of the courts below is limited to situations where it is plain that the findings are based on misdirection or misapprehension of evidence or violation of some principle pf law or procedure or have occasioned a miscarriage of justice." As I look at the instant appeal at hand, I find that although the first appellate court was in agreement with the Page 8 of 10 findings of the trial court, the judgement of the first appellate court is somewhat harbouring a confusion, especially on the part of its final orders. Notably, having considered the arguments raised before it, the first appellate court was not convinced that the appeal that was before it had any merits. As such, from pages 12 to 16 of the judgement of the first appellate court, the learned magistrate who presided over the first appeal dismissed all four grounds that the respondent herein (as appellant before the first appellate court) had raised and argued before that court. One of the grounds was that the trial court had erred when it granted a 65% share of the matrimonial property to the respondent (appellant herein) while allocating on a 35% share of the same property to the respondent herein (the appellant before the first appellate court). In his final deliberations, however, the first appellate court granted what he had dismissed by raising the matrimonial share of the respondent herein from 35% to 60%, leaving all other orders of the trial court intact. Worse enough, he did not assign any reason to that effect. Page 9 of 10 I think that was erroneous since, initially, he had dismissed the second ground raised by the respondent (appellant in the DC Court). There was no way he could have again granted that which he had dismissed. Based on the above finding, I find that the three grounds of appeal are meritorious. In the upshot of the above, this court settles for the following: 1. That, this appeal is hereby granted. 2. The judgement and decree/order by the first appellate court that the respondent herein be given 60% are quashed and set aside. 3. For any avoidance of doubt, the decision and orders of the trial court remain intact. Dated at Sumbawanga on this 11th day of September, 2024. C0 DEO JOHN NANGELA JUDGE, Right of Appeal Explained. Page 10 of 10