20190613 TZHC Dar es Salaam

. ' ;, IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 133 OF 2016 (Originating from Matrimonial Cause No. 49 of 2013 at Kisutu Resident Magistrate's Court) KABULA JAIRUS MWEMEZI ........................................................APPELLANT VERSUS · JAIRUS BALTHAZARY MWEMEZI.. ......................................... RESPONDENT - - --- ------------------lUDGME-NT---------- - ----- -- - - Date of last Order. ........ 12/02//2019 Date ofJudgment ........ 13/06/2019 MLYAMBINA J. This appeal originates from Matrimonial Cause No. 49 of 2013 at Kisutu Resident Magistrate's Court of Dar es Salaam. The Appellant above-named being aggrieved by the whole judgment and decree of the trial Court preferred this appeal on the following grounds: - 1. That, the honourable learned Principal Resident Magistrate erred in law and fact for holding that the marriage between the Appellant and the Respondent was irreparably broken down without sufficient ground to _justify the decision. 1 2. That, the honourable learned Principal Resident Magistrate was so biased in evaluating the evidence against the Appellant. 3. That, the honourable learned Principal Resident Magistrate erred in law and fact as she went in conjecture by considering extraneous matter which has never been produced in evidence, that the Appellant was pretending to love her husband while the reality which was known by the Appellant was not disclosed by the lea~ned Magistrate. 4. That, the honourable trial Magistrate grossly erred in law and fact for failure to evaluate the evidence on record, particularly the existence of other matrimonial property apart from two houses and failed to make equitable distribution of those properties. Wherefore the Appellant pray for the judgment and decree on appeal as follows: - i. That, this appeal be allowed with costs with orders that the marriage is still subsisting, or if the prayer will not be tenable the appellate Court re-evaluate the evidence on matrimonial property and redistribute it equally. ii. The Appellant to be given her share of maintainance as prayed in the trial Court. 2 iii. Cost of Appeal. iv. Any other relief this honourable Court may deem fit and just to grant. The appeal has been disposed by way of written submissions. In respect of the first ground of appeal, the Appellant submitted that the trial Principal Resident Magistrate had no ground to dissolve the marriage of the Appellant basing on evidence which was given by the Respondent. Thus, the Respondent alleges two principle misconduct of the-Appellant in his pleading; firstly, she was heavy drunker; and secondly, she was practicing extra marital affairs which caused cruelty, insult and humiliation against the Respondent. However, in the whole proceedings the Respondent was not able to produce any evidence other than simply allegation of drunkenness and extra marital relationship without any vividly evidence. The Appellant submitted that, it is now a trite law that parties are bound by their pleadings, what the Respondent has pleaded in his petition was supposed to be proved in Court. However, there was no scintilla of evidence which he proved against the matrimonial cruelty of the Appellant as h'e alleged in pleadings. To buttress her submission, the Appellant cited the case of James Funke Ngwagio v. Attorney General [2004] TLR 161 and Commercial 3 Court No. 5 Of 2013 Yara Tanzania Limited v. Msemwa Charles And Two Others, in which Mwambegele, J (as then was) observed as follows: - I find it irresistible to associate myself with the decision of the Supreme Court of Nigeria in Mojeed Suara Yusuf v. Madam Idiatu Adegoke SC 15/2002 in which speaking through Pius Olayiwola Aderemi, JSC, it stated; ''It is now a vety trite principle of law that parties are bound by their ---pleadings and that any evidence led by-any of the parties which does not support the averments of the pleadings goes to no issue and must be disregarded by the Court. According to the Appellant, the Respondent did not prove his two allegations which he raises in his pleadings that the Appellant was drunker and exercised extra marital affairs. It was the submission of the Appellant that ordinarily Courts will be reluctant to grant a decree of divorce on account of one isolated act, they will however grant it if the act is of sufficient gravity or where the act is gross and raises reasonable apprehension of repetition, the acts complained of by the petitioner to this Court are indeed hearsay and he failed to adduce any evidence against the Respondent in this sense do not amount to legal ground for dissolution of marriage. 4 It was submitted by the Appellant that in course of the Appellant countered what Respondent branded here to, she tried to show the Respondent habit but the Respondent did not raise any cross petition before the trial Court to be used as ground to dissolve the marriage: She has condemned a lot for the growth of their marriage. The trial Magistrate stepped in the position of the Respondent and complained on her behalf that she is pretending to love her husband. This finding leaves a lot to be desired, it is not in evidence where the trial Magistrate gauge those facts while the Respondent testified on oath and her pleadings in her answer to petition has put forward his innocence from matrimonial misconduct, she was just to prove what she alleged in her pleading. According to the Appellant, it was obviously from the Respondent evidence and answer to cross examination that he deserted matrimonial house because he fell in love with another female by name of Georgina Matangi and lost interest with Respondent but the Appellant was not guilty of any matrimonial misconduct. The Appellant went on to submit that the ground upon which the Court will depend on to dissolve marriage is provided for under Section 110 (1) of the Law of Marriage Act;. 1971 the two ground advanced by the Respondent during the trial was not 5 substantiated that the marriage between the Respondent and the Appellant was irreparably broken down merely by the Respondent falling in love with another woman. The finding that the marriage between the parties was irreparably broken down was cross misdirection on part of the trial Magistrate. In reply, the Respondent stated that apart from other evidences and her testimonies in trial Court which was correctly proved, PW2 one Zuhura who was their house girl for almost six years, among of other ·things testified that the Appellant and Respondent were not living together harmoniously as couples something caused the Respondent to vacate matrimonial home. In the light of the afore arguments from both parties, I have taken trouble to go through the proceedings and decision of the trial Court. I noted the arguments of the Appellant are devoid of merits. The reasoning of the trial Court in its decision, particularly from page 6 to 7 which vultures the same from the proceedings proves on balance of probabilities that the marriage of the parties had broken irreparably. The Respondent herein did not dispute to had impregnated one Monica for the reason that the Appellant denied the Respondent herein with the conjugal rights. The Respondent does not dispute to have another child called Ishengoma with a woman in the name of Rehema. The evidence 6 reflects further that the Appellant was committing adultery with another man. There was no dispute on such evidence. Most important, the parties separated from 2007 up to 2015. If the parties lived comfortably without any complaint, that could not fairly be said have questionable love among the parties as decided in the case of Materu Leson& J Foya v. R. Sospeter 988 TLR 102. As observed by the trial Court, in between from 2007 to 2015 there is nothing in record to establish that the parties were consuming their marriage. The reconciliation board failed to reunite the parties and it was the evidence of PW2 the parties had reached a stage of daring to poison each other. On that account I find the first ground of appeal to have no merits. In respect of ground No. 2 and 3 jointly, the Appellant submitted that the trial Magistrate was biased and went in conjecture by considering extraneous matter which were not part of evidence to justify the finding that the marriage was irreparably broken. The Appellant submitted that the finding of the Principal Resident Magistrate that the Appellant was pretending to love his husband does not find any justification in the evidence adduced. The Appellant argued that, by requesting the Court to order his husband to provide maintenance of their issue for the period the 7 husband absented himself from matrimonial home does not disqualify the Appellant from maintaining and defend her marriage from interference. Thus, by a mere prayer for maintenance which does not demonstrate that the Appellant does not like his marriage. The Principal Resident Magistrate failed to appreciate the evidence of the Appellant on how she was a humble woman to condone several matrimonial guilty of the Respondent. In response to ground no. 2 and 3 of appeal as submitted together by the Appellant, the Respondent replied that after kin evaluation of the evidences, heard the parties and their witnesses, the Court delivered its findings, among other things it stated that •~ .. the Appellant was pretending to love her husband. .. " The Court having an un limited jurisdiction can disclose or raise any issue at its 'suo mottu'and this is what was done basing on records on file. In reply to the second ground of appeal the Respondent was of submission that as per evidences, witnesses and testimonies by the Respondent in this appeal in the trial Court, suffices to prove that the marriage between the Appellant and the Respondent was already broken down irreparably, the remaining thing was the declaration of the Court, as wisely did. 8 The findings in the first ground of appeal partly answers the second and third grounds of appeal. To add, the trial Court analysed the totality of evidence conjunctively and rightly came to its decision. The parties been in conflict way back 2000 as testified by PW2 cemented the entire evidence that the marriage broken irreparably for a long time. The findings in ground one of appeal refutes the contention by the Appellant that the trial Court manufactured evidence. The inter alia facts for the Appellant committing adultery a_nd coming late in_ the night as reflects in the record which were not disapproved solidifies that the Appellant was pretending to love the Respondent. Indeed, there has never been credible attempt to discredit the above evidence by the Respondent. That observed, I will now turn to the last ground of appeal. As to the fourth ground of appeal, the Appellant is attacking on the finding of Principal Resident Magistrate failure to evaluate the evidence on record for the existence of more property than the two houses which the Respondent ready concedes to have exists. He submitted that there was more than the learned Magistrate adjudicated as joint matrimonial properties. Thus, there was evidence that there was apartment in Morogoro, the Appellant has adequately testified how the said plot obtained 9 in their joint effort and it was under supervision of the Respondent. She was able even to mention the amount of money which they used to compensate the outgoing owner and the land remained in their domain. There was an apartment built on during the year 2001. He also testified that they also jointly purchased a Plot of land at Buyuni Chanika from one Dominik where the Hotel Complex known as Albatross Club is situated at tune of Tshs. 2,500,000/= and it was in the name of the Respondent and all documents was with the Respondent, she also testified and find out the property was changed ownership by the Respondent in 2013 by including Georgina Matangi and her two children and the exclusion of the Appellant an evidence which was not challenged by the Respondent in the trial, there was a 35 acre of land in Kisarawe and 5 acres in Rufiji where the Principal Trial Magistrate did not consider in division of matrimonial properties. The Appellant submitted further that, he was also able to outline her sources of income include her salary, income derived from business activities which were undertaken jointly by his husband and farming within this landed plot and her evidence was supported by DW2, DW3 and DW4. 10 ~ -- '· - -- ,___ - -- -- -- ___; -·--- . ·- - - -- -~ \f In reply to the fourth ground of appeal, on issues of division of what the Appellant claims to be the un divided matrimonial properties based in Chanika, Morogoro, Rufiji, Buyuni, Kisarawe ~. and Kitunda, the Respondent subm·itted that the law is clear that if one aUergies or claims to have ownership of any property he or she should prove his/her ownership on the time of earning. On her testimony and cross-examination the Appellant failed to prove that she owns together with her husband that mentioned y -----+1, properties, she neitner produced tne original document or declaratory form of properties owned by her as one of the mandatory requirement from the 'Tanzania Revenue Authority's Employee(s) (TRA), which must be felt every year as enshrined in TRA, Staff Regulations, 2009 R.E 2012 Sections 44,46,47 and 47. To buttress her arguments, the Respondent cited the case of Japan International Cooperation Agency {JICA} v. Khaki Complex Limited, TLR 2006, 343 in which the Court among other things { \ '"- held that This Court cannot relax the application of Order XIII, Rule 7 (1) that a document which is not admitted in evidence cannot be treated as forming as part of record of suit. 11 contribution during division of Matrimonial properties. Section 114 (2) (b) (supra) states; - (1) The Court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the Court shall have regard- (a) to the customs of the community to which the parties belong; (b) to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) to any debts owing by either party which were contracted for their joint benefit; and (d) to the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. 13 " (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their Joint efforts." {emphasis added). From the evidences gathered in the lower Court, there is no proof on the alleged properties based in Chanika, Morogoro, Rufiji, Buyuni, Kisarawe and Kitunda to form part of matrimonial --- .. -- - - ----· --- ---- -- -·- --- - ~ - properties. As observed by the trial Court at page 11 of its decision, the mere annexing some documents to the plaint without tendering and proving to the Court remains mere allegation of which the Court cannot base its decision. In the premises of the foregoing I find this appeal is devoid of any merits. I therefore dismiss the appeal with no order as to costs. Judge 13/06/2019 14