CIVIL APPEAL 470 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 470 OF 2024 (Appeal from the decision of District Court of Temeke, One Stop Judicial Centre at Temeke, in Matrimonial Appeal No. 24 of2022) LUMUMBA RICHARD WAMBURA........................................................ APPELLANT VERSUS DOROTHY LESIKA......................................................................... RESPONDENT JUDGMENT 02nd May & 05th June, 2024 BARTHY, J.: The Appellant above being aggrieved by the decision of the District Court of Temeke at One Stop Judicial Centre through the Matrimonial Appeal No. 24 of 2022, appeals to this court against the said Judgment and Decree on the following grounds: 1. That the trial Magistrate erred in law and fact by granting the decree for divorce on the petitioner's alleged ground of certificate of marriage of the appellant while the same trial Magistrate in the judgment admitted that no evidence shown i in the appellant claim to support his marriage while it was viceversa. (sic) 2. That the trial Magistrate erred in law and fact in determining the issue of matrimonial properties without considering the vital evidences and testimonies adduced by the appellant herein during the hearing of the matter before the trial court of which the properties attained (sic) before the marriage as probate properties from the /ate father of the appellant, thus arrived into unfair decision, (sic) 3. That the trial Magistrate erred in law and fact by entertaining the petition for divorce registered as Matrimonial Appeal No. 24 of 2022 without considering that the same was determined without considering the evidence adduced by the appellant in the trial court. 4. That the trial Magistrate erred in law and fact by distributing 55% shares to the appellant and 45% shares to the respondent herein without considering the evidence adduced by the appellant on the properties acquired by the appellant a/one before the occurrence (sic) of their marriage through the appellant Probate Cause no 8/1990 before High Court of Dar es Salaam which led the appellant get (sic) his share which is termed as Matrimonial property located on Plot No. 58, Makabe Road in Mbezi Luis, Ubungo Municipality, and such a respondent (sic) personal loan did not add any value to such a property (sic) still there is an (sic) investors which (sic) have put his (sic) effort to develop such terming (sic) a matrimonial properties, (sic) 5. That the trial Magistrate erred in law and fact by (sic) not considering such matrimonial properties registered in the appellant name while the same were the proceeds of Matrimonial Properties described as the matrimonial property of (sic) appellant and (sic) respondent on Plot No. 58, Makabe Road which was inherited before their marriage is having the vital effect and it carry the legacy of the /ate appellant father families as per the evidence submitted (sic) by the appellant. Wherefore, the appellant prays for the judgment and decree of Matrimonial Appeal No. 24 of 2022 to be quashed and set aside, for the costs of this suit to be borne by the respondent, and for any other reliefs) this honorable court may deem fit, just, and equitable to grant. 3 The brief background is crucial for the determination of this matter. The appellant and respondent celebrated a Christian marriage on 24th of May 1990, and their union was blessed with two children. In 2022, the respondent petitioned for a decree of divorce before the Primary Court of Temeke at the Temeke One Stop Judicial Centre (the trial court) through Matrimonial Cause No. 696 of 2022, citing desertion for 22 years and cruelty as grounds for seeking the divorce. Upon hearing the matter, the trial court was satisfied that the marriage had broken down beyond repair. It granted the decree of divorce and ordered the division of matrimonial assets. This decision did not please the appellant, who subsequently appealed to the District Court of Temeke One Stop Judicial Centre (the first appellate court) via Matrimonial Appeal No. 24 of 2022. The first appellate court confirmed the trial court's decision but varied the terms for the division of matrimonial assets to 55% for the appellant and 45% for the respondent. This decision again did not amuse the appellant, leading to this appeal. Then the hearing of this matter was disposed of by way of written submission, and the parties duly filed their submissions timely. The appellant's submission in chief was prepared by Mr. Meneghati John Nyamoroga, a learned advocate. In his brief submission, he 4 addressed the first ground, the fourth ground, and finally, the fifth ground. Regarding the first ground, he stated that during the hearing of the petition before the trial court, the respondent had failed to prove her case on the balance of probabilities. He further stated that the burden of proof was on her in terms of section 110 of the Evidence Act, Cap 6 R.E 2019 (The Evidence Act). Mr. Nyamoronga further stated that this appeal centers on challenging the division of matrimonial properties. He argued that the trial magistrates erred in law and fact by distributing 55% of the shares to the appellant and 45% to the respondent without considering the evidence presented by the appellant regarding the properties acquired during their marriage. It was his argument that it was the appellant alone who acquired those properties through inheritance via Probate Cause No. 8 of 1990 before the High Court of Dar es Salaam. He added that the appellant received the said house from his late father, but the trial court considered it to be matrimonial property. The appellant further argued that for matrimonial properties to be subject to distribution, the conditions set under section 114(1) of the Law of Marriage Act Cap. 29 R.E 2019 (the Law of Marriage Act) must be met. He stated that the respondent had the duty to show how she had 5 — contributed to the properties belonging to the appellant during their marriage, citing the case of Tumaini M. Simoga vs. Leonia Tumaini Balenga, Civil Appeal No. 117 of 2022 [2023] TZCA 249 (12 May 2023 TanzLII). Mr. Nyamoronga also addressed the fifth ground of appeal, insisting that the properties awarded to the respondent as 45% shares were acquired by him as an inheritance from his late father in 1990, prior to their marriage. He therefore urged the court to lower the percentage and allow the appellant to compensate the respondent. Arguing for ground five, Mr. Nyamoronga submitted that plot No. 58 at Makabe carries their family legacy and includes the grave of his late younger brother, indicating it to be family property regardless of renovations conducted. He was firm that the amount of money contributed by the respondent did not entitle her to an equal division of 45%, as the appellant's mother also had invested in the property. He therefore prayed for the judgment of the first appellate court to be quashed and set aside. The respondents written submission was drawn gratis by Women's Legal Aid Centre (WLAC) under advocate Richard Godlisten Kimaro, who recounted the brief background of this matter. Responding to the first ground, Mr. Kimaro stated that the first appellate court was correct to uphold the trial court decision, as the 6 records reveal that both parties were accorded the right to be heard, tendered their documentary evidence, and the trial court decided the matter based on her stronger evidence, as decided in the case of Hemed Said vs. Mohamed Mbilu [ 1984] TLR, 113. Furthermore, Mr. Kimaro stated that the court correctly analyzed and considered the evidence from both sides. The trial court found that the respondent's evidence was weightier than that of the appellant and that the appellant failed to prove the existence of another marriage as required under section 111 of the Evidence Act. Turning to ground four of the appeal, Mr. Kimaro stated that it is well known that all properties acquired by spouses during the subsistence of their marriage and through their joint efforts are liable for distribution in terms of section 114(3) of the Law of Marriage Act. He emphasized that all properties acquired by either party before the marriage but substantially improved during the subsistence of their marriage and through their joint efforts are liable for such distribution, as provided under section 114(1) of the Law of Marriage Act. Mr. Kimaro stressed that during their marriage, the assets were acquired together with the appellant, and each party proved their contribution. Therefore, the appellate court correctly considered the respondent's contribution and awarded her a 45% share of the matrimonial assets. He thus prayed for 7 the appeal to be dismissed and the decision of the appellate court to be maintained. In the rejoinder, the appellant’s counsel maintained his arguments from his submission in chief, which do not need to be reproduced here. Having gone through the contending argument with respect to the present appeal, then this court is tasked with the duty to determine whether this appeal has the merit. In determining the grounds of appeal, I will begin my deliberation with the third ground, where the appellant faults the first appellate court for entertaining the matter under the title Matrimonial Cause No. 24 of 2022 instead of Matrimonial Appeal No. 24 of 2022. Notably, this ground was not addressed by either party, despite Mr. Meneghati not stating in his submission that the ground had been abandoned. Given that this ground was brought to the attention of the court, I regarded the pleadings, proceedings, judgment and decree of the district court. It came to my attention that the matter was instituted and registered in the District Court of Temeke at the One Stop Judicial Centre as Matrimonial Appeal No. 24 of 2022. The judgment of the court also bears the correct title. However, the typed proceedings of the said court 8 incorrectly titled the matter as Matrimonial Cause No. 24 of 2022 instead of Matrimonial Appeal No. 24 of 2022. The court is therefore tasked with determining whether this appeal is competent before it. Given the fact that the case subtype was incorrectly titled, the proceedings of the first appellate court are rendered defective. This principle was indorsed in the case of Director of Public Prosecutions vs. ACP Abdallah Zombe & Others (Criminal Appeal No. 254 of 2009) at the Court of Appeal in Dar es Salaam [2013] TZCA 497, where the court held that; Incompetence of proceedings takes many forms. It may arise out of the proceedings being time barred, being wrongly instituted in the wrong court or forum, a competent court being wrongly moved, citing a wrong number of the case in which the challenged decision emanates, etc... Considering that there is the defect in the proceedings of a case, it fundamentally undermines its competence. In those circumstances, the appeal becomes incompetent and at this stage incapable of rectification through amendment. Thus, this ground alone disposes of the entire appeal, as the defective records render the appeal incompetent. The only remedy is to strike it out, with the direction that the first appellate court 9 review the proceedings and correct the anomaly, since the error is on the face of record and did not go to the root of the matter or causing the miscarriage of justice. In the circumstances, I give no order as to costs. I order accordingly. Dated at Dar es Salaam this 5th of June, 2024. 10