iddi habibu kondo vs mwashabani ramadhani fundi 2023 tzhc 20869 31 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC. MATRIMONIAL APPEAL NO. 47 OF 2022 IDDI HABIBU KONDO................................................. APPELLANT VERSUS MWASHABANI RAMADHANI FUNDI...................... RESPONDENT (Arising from the decision of the District Court of Temeke, One Stop Judicial Centre at Temeke) (Swai, SRM) Dated September2022) in Probate Appeal No. 40 of2021 JUDGMENT 21st & 31st August, 2023 Rwizile, J. The appellant was aggrieved by the decision of the District Court and has filed this appeal in protest on the following grounds; 1. That, the first appellate court and the trial court erred in law by declaring the house at issue located at Chamazi, Temeke District within Dar Es Salaam is a matrimonial property while it is a property owned by the appellant's family through probate, based on the evidence adduced by all parties during trial hence reaching to an erroneous finding and conclusion. i 2. That, the first appellate court and the trial court erred in law for ordering a 50/50 distribution basis of the purported matrimonial house which is unfair distribution for the reason(s) that the respondent has failed to prove the extent of contribution in the acquisition of the said house at issue during the subsistence of their marriage hence reaching at an erroneous finding and conclusion. 3. That, the first appellate court erred in law by rejecting the appellant's point of law that the court has failed to comply with mandatory terms to record and consider the opinions of the assessors during the trial which amounts to sitting without assessors. 4. That, the first appellate court erred in law by rejecting the appellant's material documentary evidence which was rejected by the trial court without any justification which amounts to denial and violation of the fundamental right to be heard. 5. That, the first appellate court erred in law by awarding costs in the Matrimonial Proceedings which is contrary to the long practice in our judicial system in all courts including the courts of records of this country 6. That, the appellate court erred in law by failing to properly re­ evaluate and consider the evidence adduced by all parties during the trial at the trial court hence reaching at an erroneous finding and conclusion. At the oral hearing, the appellant enjoyed the service of Ms Salha Hamisi, learned Advocate, while the respondent was represented by Mr. Shafii Abdul, learned Advocate. Submitting for the appellant, the learned counsel argued the 1st and 4th ground together. He stated that, the matrimonial asset belongs to the appellant's father and that has not been disputed. The proof shows, according to her, that there was tendered a receipt at the Primary Court but it was not admitted. It was further argued that, despite not forming evidence before the trial court, the same receipt was referred by the District Court. The property, it was added, is not matrimonial. The court was asked to refer to sections 110, 111, and 112 of the Evidence Act and that there is no proof of contribution or that the same was built by the parties On the second ground, the appellant's counsel argued that the lower court did not get it right as there was no contribution of the parties established. He prayed, the court to reverse the award of 80% to the appellant and 20% to the respondent and referred me to the case of Bibie Maulidi v Mohamed Ibrahimu [1989] TLR 162. 3 Regarding the third ground, she submitted that there was no involvement of assessors in the decision made, when in fact the law so permitted, and the District Court failed to consider this as an irregularity. To support this point, this court was referred to the case of Abdallah Bazime v R [1990] TLR 42. Lastly, the appellant's counsel submitted that it was wrong to make an order for costs. It was argued that the law does not allow costs on family matters, hence the order be set aside. I was asked to allow the appeal and grant prayers pleaded. In reply, the counsel for the respondent stated that the evidence clearly shows, the house is a matrimonial property as they were given a plot. It was further argued that, the same parties built a house as proved by Abasi Said the appellant's younger brother. I was asked to hold, that this ground lacks merit. As to the second ground, it was clearly stated that, the award on division of matrimonial asset was made because the standard of proof is on the balance of probabilities. It was based on evidence of contribution and cited the case of Sixbert Bayi Sanka v Rose Nehemia, Civil Appeal No 68 of 2022, Court of Appeal at page 10. Further, the respondent held the view that receipts are not a requirement in proving contribution of the parties in acquiring matrimonial properties. Regarding the issue of assessors, it was submitted by the respondents counsel that the court sat with assessors. It was argued that, the District Court confirmed that assessors were present and signed the judgement in terms of section 7(3) of the Magistrates Court Act. According to the respondent's submission, the opinion of assessors does not bind the magistrate. Lastly, the counsel for the respondent submitted that there is no law that prevents awarding of costs. Moreso, it was argued, costs were not claimed. It was his prayed that this appeal be dismissed. In a rejoinder, it was briefly submitted that a receipt showed payment of taxes for the building. It proved, they were given a house which was divided at 80% for the appellant and 20% for the respondent and there was no opinion of assessors hence the same be disregarded. Having considered submissions of the parties and examined the grounds of appeal, I have noted that ground three on assessors be dealt with first because, it disposes of the appeal-. The record has it that when the case was filed on 12th July 2021 at Mbagala Primary Court. It was first heard on 13th July 2021 (Hon. 5 Madelemo). Under section 7(1) and (2) of the Magistrates'Courts Act [Cap 11, R.E 2002] Act, it was mandatory for the Magistrate to sit with not less than two assessors in order to constitution the court. The law, however had not been amended by Written Laws (Miscellaneous Amendments) (No. 3), Act, 2021 which came into being on 11th October, 2021 to do away with the requirement of sitting with assessors as it currently stands. The law plainly stated that the in any finding of the court, the Magistrate has to consider the opinion of the assessors. Perusing the trial court proceedings, it is manifested that when the matter was called for the first time the assessors were Asume and R. Lukindo that was on 13th July, 2021. At the hearing on 26th July 2021 the court was constituted by Hon. Mbwana learned Magistrate sitting with two assessors, S. Chautundu and R. Lukindo. The court on that day, heard three witnesses for the respondent (SMI, SM2 and SM3, on page 2-7 of the trial court typed proceedings). The appellant's case then followed on defence, it was on 19th August 2021 whereby the court sat with a set of assessors namely S. Chautundu and Zemba who heard three witnesses for the defence (SU1, SU2 and SU3 on page 7-11 of the trial court typed proceedings). It is clear that the same assessors proceeded to give judgment. From the record, it is without a doubt that the court assessor one Zemba heard only one side of the case and his opinion formed basis of the judgment. The record does not show that he was even present when the respondent was heard. In principle, every assessor assigned to the case must hear all the evidence that is tendered before the court in order to fully participate in the decision. In the case of Mathias Katonya v Ndola Masimbi, [1999] TLR. 390, it was held that; "First, the substitution of an assessor or assessors during trial is an irregularity and Second, an assessor who has not heard all the evidence in a trial is incompetent" In the instant case, R. Lukindo was substituted by Zumbe, hence making Zumbe incompetent to form a decision of the court as he did not hear all evidence. I am aware of section 37(2) of the Act, which bars the decision of the Primary Court and the District Court to be reversed or altered by reason of any irregularity in the proceeding before or during the hearing unless it has in fact occasioned a failure of justice. This court is now left with one question as to whether the substitution of assessors as shown above has occasioned injustice. From the records, it is displayed that, the trial magistrate considered the opinion of Zemba who was a stranger because he did not hear one side 7 of the case. His opinion with no doubt affected the decision of court on the evidence he did not hear. From the above findings, I am satisfied that the judgment of the primary was not, in law, is married by irregularity that are incurable. For the foregoing reasons, I hereby quash and set aside decisions and the proceedings of the lower courts. The available remedy is to order a trial de novo before another Magistrate competent to try the same. No order as to costs. JUDGE 31.08.2023