majura kafumu vs pili rashidi 2011 tzhc 2049 4 march 2011

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO 69 of 2010 (From Kinondoni District Court, Civil Appeal No. 74 of 2009-Kabate-RM dated 26th June 2010) MAJURA KAFUMU....................................................APPELLANT VS PILI RASHIDI.......................................................... RESPONDENT JUDGMENT Date of last Order: 25-02-2011 Date of Judgm ent: 04-03-2011 JUMA, J.: This is an a p p e a l against the judgm ent of the District Court of Kinondoni (R. Kabate-RM) d ated 25 June 2010 wherein the district court overturned the judgm ent of the trial primary court by ordering an equal division of matrimonial property to re p lace the 30% share (for Respondent) and 70% share (for the Appellant) the Primary Court of Kimara had ordered on 2nd Septem ber 2009. A ppellant (Majura Kafumu) has preferred five grounds in his Petition of A p p eal, which include the one that the district court p ro ce e d e d to determ ine an a p p e a l without first making a decision on the Notice of Preliminary O bjection. Appellant in addition contends that the district court d e cid e d the a p p e a l without hearing the parties to the a p p e a l. The fa ctu al background to this a p p e a l m ay be stated as follows: The Appellant Majura Kafumu and Respondent Pili Rashidi had been living as husband and wife from 1993 till 2009 w hen the Appellant petitioned for a divorce 2009 and the Primary Court Kim ara dissolved that m arriage, divided 70% of the matrimonial property to the Appellant and remaining 30% to the Respondent. The Respondent w as agg rieved by the decision of the primary court and filed her Petition of A p p eal to the District Court of Kinondoni (Civil A p p eal No. 74 of 2009) to claim not only equal division of the matrimonial property but also the custody of Majura Kafumu and Jasmini Kafumu, the two youngest children from the dissolved m arriage. When this a p p e a l c a m e up for mention in this Court on 4th O cto ber 2010, the A ppellant w as represented by A d v o c a te Francis Kam uzora who w as holding for A d v o ca te M akaki. Respondent Pili Rashid represented herself. It w as ag reed that the a p p e a l be argued by w a y of written submissions. Both parties duly filed their written submissions as scheduled. In the written submissions filed on his b ehalf by MM Attorneys, Appellant asserted that o n ce preliminary objections on points of law had been raised at the district court, the m agistrate should not h ave p ro ce e d e d to determ ine the a p p e a l before that court without first disposing of the preliminary objections. Appellant further asserted that since the points of preliminary objection questioned the jurisdiction of the district court, the district court w as obliged first to satisfy the issue of jurisdiction before moving on to determ ine that a p p e a l on merit. Submitting on the seco nd ground that the District Court d e cid e d the Civil A p p e al No. 74 of 2009 before it without giving a hearing to the parties to that a p p e a l, Appellant reiterated that the written submissions w hich the district court ordered the parties to file w ere with resp ect to the Notice of Preliminary O bjection but not for the hearing of the Civil A p p e al No. 74 of 2009 on merit. That it w as not in order for the district m agistrate to com pose the judgm ent of that court without acco rd in g the parties to a p p e a l their right to be heard on the grounds of a p p e a l. Respondent’s brief submission to oppose the a p p e a l w as filed by the W om en’s Legal Aid Centre (W LAC). Respondent submitted that the points of preliminary objection w ere all determ ined by the District M agistrate that is w hy the Civil A p p eal No. 74 of 2009 w as d e cid e d on merit. Respondent further brushed off contention by the A ppellant that parties w ere not heard on the grounds of a p p e a l. Respondent insisted the Judgm ent of the District Court clearly shows that both the Appellant and the Respondent w ere afforded an opportunity to be heard on their grounds of a p p e a l. 3 From the submissions, there are several arising issues calling for determination by this Court. First issue is w hether the district court determ ined the preliminary point of objection on points of law w hich the Appellant had noticed the district court, and w h at is the effect of failing to determ ine the objections. Second issue is w hether the parties at the district court w ere heard on the grounds of a p p e a l. My perusal of the records of the District Court found that on 27th Novem ber 2009 Appellant (Respondent in the District Court) together with his reply to the petition of a p p e a l, filed a Notice of Preliminary O bjection contending that in terms of section 80 (1) of the Law of Marriage Act, 1971 the District Court had no jurisdiction to hear and determine the a p p e a l before it. The seco nd point of objection contended that the a p p e a l to the district court w as filed out of time contrary to section 80 of the Law of Marriage Act, 1971. Record of the district court show that by 15th M arch 2010 e xch a n g e of pleadings w ere com pleted. The district court ordered the hearing of the preliminary points of objection by w a y of written submissions. Appellant herein (as respondent in the district court) filed his written submissions on 26th M arch 2010. Respondent herein (as ap p ellant in the district court) filed her replying submissions on 16 April 2010. Rejoinder submissions w ere filed on 20th M ay 2010. It w as on 21st M ay 2010 w hen the district court scheduled its judgm ent to be on 25th June 2010 w hen it w as finally delivered. As to w hether the District Court heard the noticed preliminary points of objection, my perusal of the judgm ent of the district court clearly confirm A p p ellan t’s contention that the Judgm ent of the District Court did not notice the two points of objection w hich the A ppellant had filed earlier on 27th Novem ber 2009. In other words, the points of preliminary objection w ere not d ealt with in the judgm ent an d the learned m agistrate p ro ce e d e d to d eal with a p p e a l on merit as if the preliminary points of objection w ere never raised. He en d ed up allowing the a p p e a l before the district court by reversing the 70% (for Appellant) and 30% (for Respondent) w hich the Primary Court of Kimara had ordered. Instead, the district court ordered equal division of matrimonial property. For purposes of this a p p e a l I will not overstress the n eed for courts to d e al with preliminary points of objections w hich invariably raise pure points of law . The Court of A p p eal in ca se of Hezron M. Nyachiya vs. 1. Tanzania Union of Industrial and Commercial Workers, 2. Organisation of Tanzania Workers Union, Civil Appeal No. 79 of 2001 cited its earlier decision in Shahida Abdul Hassanali Kasam v. Mahed Mohamed Gulamali Kanji - Civil Application No. 42 of 1999 (unreported), expressed the aim of preliminary objections as, “The aim of a preliminary objection is to save the time of the court and of the parties by not going into the merits of an application b e ca u se there is a point of law that will dispose of the m atter summarily.*' 5 From the g u id a n ce of the Court of A p p e a l one would inevitably ask w hether the preliminary points of objection that w ere raised at the District Court are within the definition of preliminary objections for purposes of disposal of the a p p e a l before the district court without going into the merits of that a p p e a l? With due respect, the preliminary objection to the e ffe ct that the district court in terms of section 80 (1) of the Law of M arriage A ct h ad no jurisdiction to hear an a p p e a l from the Primary Court falls squarely within the definition of w h at is a preliminary objection.j Likewise, the seco nd point of objection that the a p p e a l to the district w as filed out of time raises a pure question of law challenging the jurisdictional m an d a te of the district court. It w as incum bent upon the District Court to address itself to those two points of preliminary objection. It is not for this Court on seco nd a p p e a l, to determ ine w hether the two points of objection before the district court are in fa ct sustainable or are not sustainable if in the first p la c e the points of objection w ere not d ealt with by the district court. From the foregoing, the failure to d eal with the two points of preliminary objection touching upon the jurisdiction of the Kinondoni District Court (Civil Appeal No. 74 of 2009) am ounted to a serious error ap p are n t on the fa c e of the record of the district court. There is no need for m e to address myself to other remaining grounds of a p p e a l. This a p p e a l is allo w ed , the Civil A p p e al No. 74 of 2009 at Kinondoni District Court shall be heard de novo by a different m agistrate. The 6 new m agistrate shall first determine the preliminary points of objection. I.H. Juma JUDGE 04-03-2011 Delivered In presence of: Shadrack Samwel, Adv. (Holding Mr. Makaki’s brief for the Appellant) and Respondent Pili Rdshidi. U i . h . Juma ~ JUDGE 04-03-2011 Vs s ■*- 7