mbambege felix jm vs sangwje mwambegele 1982 tzhc 32 23 march 1982

IN THE HIGH COURT 0*' TANZANIA AT GEITA (rC) MATRIMONIAL CIVIL AFf .NO.7/81 (Prom the decision of the District Court, pf Sengerema at Sengerema in Matrimonial Civil' fianse No*146/1980 MBAMBEGE FKLIX J. M AIT EJLANT •V Versus ** SANGWJE MWAMBEGELE RESFONLENT JUDGMENT CHUA, J. In the Frimary Court Sengerema the appellant petitioned for divorce giving his reason as being cruelty on the part of his wife the resjondent in this appeal. The r.rimary Gourt found that the appellant had failed to prove cruelty of the i£ype ’that wou}.d entitle it to conclude that the marriage had broken down irretrievably. Nevertheless a separation of two years was ordered. The appellant is disatisfied with the findings and orders of the lower court, • In his memorandum of apj eal the appellant alleges that the trial magistrate and the assessors Vere biased against hinf* He maintains that he g i *•;’ . . •' i - * »■**«> • » - • - he in fact told the lower coui?t that he would like his case to be heard by another magistrate but he was overruled, I have perused the record of the lower court" and' noted the'following fafct&i* *On ‘22/£/l980 the 4 » petitioned adduced his .evidence. As soon as he had finished.to do so the trial magistrate of his own inotion maae the followingorder:- MMdai kuleta wazazi wake 29/1/19&1* Mume ahame nyumba ile kwa sababuThawezi kuishi pamoja na • h&li wanaugomvi kama huu, Mke ndiyo akae kwenye ~ nyumba mpaka hapo itakavyotokea vingine.” It is, this order which-prompted the appellant. on*- 10/l/l98l to apjily foi\ 3, retrial before another magistrate* He gave as hip. reason, ths biased- order a£ove and the. fact..that his wife was bragging that th.e magistrate was .going *0 dttcid* the*-case in her favour. The trial- .magistrat?e sought „the views, jof-the assessors, ■,;It‘ is interesting to- not^ what -the .ast-es&o^s "gaid^ . The ass.esscr by. the name x>f4-Dinah said as follows!- nMimi naor^a kwarnba.nyumba hiyo irnej engwa^ nap. wakiishi pamoja kindoa, ~ Wote wana* haki na n^uniba hiyo iyaani ni" 1 $ao wote Wawili.< Ndiyo kusema wote wawill waajiijenga . •. myumba hiyo na vitu vilivyomo ndani humo ni vyao 'wote. Nitashangaa k«mn. mice atkviiba* iunri iliybtolewa 22/12/80 kwamba mwanaume atoke nyumba hiyo ibpki ilivyo mpak4 mwisho wa.shauri hili, Hii ni njama ya mdai kutoka #daiw,a mke aitoke nyumba hiyo kusudi aishi humo yeye asijali ' J _ shauri lake la kuomba talaka, Ombi la pili vile vile ni njama* ya' mdai kutoka hakirau mwingine kusikiliza daawa' hili ili aweze kufaulu.V - I . 1 The views of assessor Dinah prevailed and the court went on to~ h Cai the e-sddg^e of th^yespondent-.cn 29/l/l98l and fixed the ease for judgment on 7/ 2/198I. On 30/1/1981, however, the court record shows that evidence of two witnesses, namely Nyambelega Kubakigwe and Eva Mwambegele was taken. These witnesses were mother and sister of the petitioner respectively* Their evidence ought to have "been taken "before the case for the respondent commenced as they were witnesses for petitioner. The record gives no clue as to why this breach of elementary procedure was committed,, It is a basic rule of natural justice th-it no one should be judge in his own cause. This rule covers not only a situation where the presiding magistrate has a direct interest but also where there is evidence of bias through close association with any of the parties, sometimes there may be no actual evidence of bias but if there are r roved incidents giving rise to a reasonable aj.x rehansion in the mind of the aggrieved jarty that he will not have a fair trial than the magistrate ought not proceed with the matter. This legal principle was expounded clearly in case of Herman Milde reported in 1 TLR.129 which involved an application for change of veirtiGfi'-. In that case the High Court held: "It is not every aj ± rehension which could be taken into consideration but th.it the ap., rehension must be of a reasonable character and must be founded upon distinct incidents which would really give rise to a reasonable apprehension that there would not be a fair trial.’* , The same principle is restated in the case of Mbuji V. R. (1971) HOP. 220: In that case it was established that the principal prose­ cution witness was not only of the same tribe as the trial magistrate but also intimate friend. Mr. Justice Mwakasando, as he then was, ordered a retrial giving his reason that; Mit would be lame indeed to assert that right minded .. people watching these judicial proceedings would, think other than that the magistrate was biased............ It does net matter in the least in my opinion, that they might be completely mistaken in holding this view.” In this case the order of the trial magistrate that the appellant should^ the matrimonial house was made of his own motion. He did not want to hear the views of the parties or the assessors on this aspect of the case which leads to a-reasonable 1 resumption that he already knew the case before handling it. This in my view was a manifestation of bias. Subsequent failure to complete the petitioner's case before hearing the respondent is another incidence which gives rise to ay]re­ hension that the trial magistrate was not handling the case fairly, ■^anally the comments of assessor liinah which I have quoted above strongly reflected the state of a biased mind. Justice must not only be done but must manifestly be seen to fciave been done. This cannot be said of the present case. A In view of what I have said above it wilx be otiose for me to go into details about the merits of the other points raised in the memo*. randum of appeal. Had the case been conducted more properly the final ; results may have been different. It is not however the function of 1»his t court to work on conjecture. Suffice it to say that in the interest of oourt justice I quash the proceedings of the loviei/ aumLta trial de novo is ordered before a new bench. I*i the spirit d f S. 90 o f the Law of Marriage Act. 1971 each jarty will bear his or her own costs* .. . // f j t '■ J L. J. I(0 CKUA JUDGE GEITA: 23rd ‘March, 1982;