CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f CORAM; WAMBALI. J.A.. KENTE. 3.A. And MURUKE. J.A.) CIVIL APPEAL NO. 201 OF 2021 MILCA KALONDU MREMA................... ....................................... APPELLANT VERSUS FELIX CHRISTOPHER MREMA.................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) fGwae, J.) Dated the 28th day of February, 2020 in Dc, Civil Appeal No. 9 of 2018 JUDGMENT OF THE COURT 30th October, & 19th November, 2024 WAMBALI. J.A.: This appeal has been preferred by the appellant, Milca Kalondu Mrema to contest the judgment and decree of the High Court at Arusha in Civil Appeal No. 9 of 2018 which was delivered on 28th February, 2020. In that appeal, the High Court partly confirmed the decision of the Court of the Resident Magistrate of Arusha at Arusha and partly refrained to determine the dispute on division of matrimonial assets between the parties and remitted the issue to be tried afresh by the trial court. The parties in this appeal contracted a Christian Marriage on 4th August, 1973 at All Saints Cathedral of the Anglican Church at Nairobi, Kenya. According to the record of appeal, the marriage between the parties was not free of obstacles as misunderstandings cropped up from 2000 onward. Basically, their relationship turned sour. As it turned out, in 2017, the respondent formally petitioned for divorce and division of matrimonial assets at the Court of the Resident Magistrate of Arusha at Arusha in Matrimonial Cause No. 11 of 2017. It is noteworthy that initially, the petition was lodged at Arusha Urban Primary Court but was transferred to the Court of the Resident Magistrate of Arusha. Prior to the petition, the parties had made several attempts to seek both separation and divorce in various courts both in the United States of America and Tanzania. The petition whose decision was the subject of an appeal before the High Court was stiffly contested by the appellant. For the purpose of this judgment, we do not intend to revisit in detail the material facts leading to the petition with regard to the parties' dispute at the trial court. It suffices to point out that after the trial court heard the parties and considered the evidence on the record, it granted the petition and declared that the marriage between the appellant and the respondent had broken down irreparably. Consequently, it ordered the division of matrimonial assets acquired during the pendency of the marriage. The trial court's decision aggrieved the appellant who immediately preferred Civil Appeal No. 9 of 2019 before the High Court (the first appellate court). Basically, the decision of the trial court that the marriage had broken down irreparably was strongly contested by the appellant. At the High Court parties lodged written submissions for and against the appeal. The first appellate judge considered the parties' submissions, and in the end, he confirmed the findings and conclusion of the trial court that the marriage had broken down irreparably. However, he found that the evidence of the parties at the trial court with regard to the extent of their respective contribution in acquisition of the contested properties was insufficient to enable him to determine the issue of division of matrimonial assets. Consequently, he ordered that a retrial should be held by the trial court on issues of matrimonial assets regarding the following matters: "1. Parties shall indicate their matrimonial properties subject to the sought division by the trial court. 2. Whether the property on plot No. 2B at Corridor area is mortgaged. 3. I f issue No. 2 above is answered in affirmative, whether the mortgaged property can be among matrimonial assets fit for division after court's grant o f divorce. 4. Parties' contribution to be sufficiently established." The decision of the High Court did not find favour with the appellant, hence this second appeal supported by a memorandum of appeal premised on the following grounds: 1. That the learnedjudge erred in law and in fact in holding that, the trial court was justified in issuing a divorce decree as the marriage between the parties was found to have broken down irreparably 2. That the learned judge erred in law and in fact in holding that, division o f matrimonial assets is to be tried de novo since the parties' evidence in record is sufficient Before the hearing of the appeal, parties filed written submissions for and against the appeal. When the appeal was called on for hearing before us, Mr. John Materu and Mr. Ombeni Kimaro, learned advocates represented the appellant, whereas Mr. John Shirima appeared for the respondent. Submitting in support of the appeal, Mr. Materu fully adopted the written submission and the list of authorities lodged in the Court earlier. He briefly emphasized that the first appellate court wrongly decided that the marriage between the parties had broken down irreparably while the allegations of the respondent in the petition were not proved to the required standard. He also submitted that the evidence of the parties on the record with regard to their respective contribution in the acquisition of matrimonial properties was sufficient. In the circumstances, he questioned the propriety of the first appellate court judge's finding and order for a retrial on the issue of division of matrimonial assets acquired by the parties during the subsistence of the marriage. In the end, he prayed that the appeal be allowed on the strength of the appellant's submission. On the adversary side, Mr. Shirima contested the appeal on behalf of the respondent and urged the Court to consider the written submission and list of authorities lodged in the Court in support of the respondent's argument against the appeal. He maintained that, considering the evidence on the record, the first appellate court properly affirmed the trial court's findings that the marriage between the parties had broken down irreparably. He equally supported the decision that having regard to the insufficient evidence on the record, the extent of contribution of the parties in the acquisition of matrimonial assets deserved a retrial. In the event, he prayed for dismissal of the appeal with no order as to costs. Having carefully considered the parties' submissions, we propose to start our deliberation by considering the second ground of appeal. Our perusal of the record of appeal reveals that, the evidence of the parties with regard to the extent of contribution in the acquisition of the contested properties during the subsistence of the marriage was not sufficient to enable the trial court and first appellate court to determine the issue of distribution of matrimonial assets. We are therefore, in agreement with the first appellate judge in his finding. This is because, despite the parties' pleadings on contested issues, the evidence on some aspects regarding the contribution of each party to the acquisition of properties was not adduced sufficiently to support the averments. We thus disagree with the appellant on the first limb of this ground. At this juncture, the next question is whether in the circumstances of the case, the first appellate judge was entitled to order a retrial to remedy the situation. We are of the view that the first appellate judge was not justified to order a retrial. This is so because, a retrial would entail nullification of only some parts of the trial court's proceedings. Unfortunately, the order to that effect was not made by the first appellate court. Nonetheless, such an order, would have presumed that only parts of the evidence of the parties in respect of their contribution in the acquisition of the contested properties would be nullified to pave way for reception of fresh evidence in respect of that issue only. On the other hand, parts of the proceedings relating to the evidence on dissolution of marriage would be left intact. In this regard, the order would cause problem on how to separate the trial court's proceedings in respect of the evidence in support of the prayer for divorce and those liable for nullification regarding the contribution in the acquisition of the contested properties during the substance of the marriage. More importantly, the respective parts of the judgment of the trial court would be partly nullified and partly retained. Basically, we are of the view that, the implementation of a retrial order made by the first appellate court would cause confusion in the trial court's proceedings to the extent of occasioning miscarriage of justice to the parties. Besides, considering the circumstances of the case, an opportunity would be utilized by either party to fill in the gaps in the weak It is noteworthy that a retrial may be ordered where there was a significant error of law, irregularity in the trial court's proceedings and discovery of new material evidence; to mention few scenarios. In short, a retrial entails the making of a new judgment in a case that had been judged before. In the circumstances of this case, the trial court would not compose a new judgment only on division of matrimonial assets while the previous judgment which comprised of both issues of dissolution of marriage and division of assets is still intact. In the circumstances, we are of the view that, having found that the evidence with regard to the contribution of the parties in the acquisition of the properties for purpose of distribution was not sufficient, a proper order was for the first appellate judge to adjourn the delivery of the judgment and involve the parties on the issue of division of matrimonial properties, and finally order the reception of additional evidence by the trial court or itself on the noted areas. Thus, the judgment of the first appellate court would have been composed and delivered after considering the evidence on the record, the submission of the parties for and against the appeal and the additional It is instructive to note that the High Court's powers to order additional evidence on appeal is provided for under the law, in terms of Order XXXIX rules 27, 28 and 29 of the Civil Procedure Code, Cap 33 (the CPC) which provided as follows: "Rule 27 (1): - The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the court, but if: - (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; (b) the court requires any document to be produced or any witness to be examined to enable it to pronounce judgment; or for any other substantial cause, the court may allow such evidence or document to be produced, or the witness to be examined. (2) wherever additional evidence is allowed to be produced by the court, the court shall record the reason for its admission. Rule 28: - wherever additional evidence is allowed to be produced, the court may either take such evidence or direct the court from whose decree the appeal is preferred, or any other subordinate court, to take such evidence and send it, when taken, to the court. Rule 29: - where additional evidence is directed or allowed to be taken, the court shall specify the points to which the evidence is to be confined; and record on its pleading the points so specified." In Sarkar Law of Evidence, 16th Edition 2007 at page 2512, the following is stated with regard to the reception of additional evidence by the appellate court: "The appellate court may admit evidence improperly rejected by the lower court or it may allow additional evidence to be given when it is of the opinion that it is required for a proper decision of a case. The legitimate occasion for admission of additional evidence is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, and not where discovery is made outside the court o f the fresh evidence and the application is made to import it... The rule is not intended to allow a litigant who has been unsuccessful in the lower court, to patch up the weak parts o f his case and fill up omissions in the Court o f Appeal." [Emphasis added] Indeed, in Ismail Rashid v. Mariam Msati (Civil Appeal No. 75 of 2015) [2016] TZCA 786 (29 March 2016, TANZLII), the Court emphasized that the reasons for taking additional evidence must specifically be stated in accordance with Order XXXIX rule 27 (2) of the CPC. As we have stated above, the proper procedure with regard to the fair determination of the appeal which was before the High Court, was to order the taking of additional evidence before a judgment was composed and delivered and not to order a retrial. In the circumstances, having regard to our findings, while we disallow the second ground of appeal in respect of sufficiency of evidence, we allow it to the extent that it was wrong for the first appellate court to order a retrial in respect of division of matrimonial assets. Having reached that conclusion, we are of the view that the second ground suffices to dispose of the appeal. Therefore, there is no relevance of considering the first ground of appeal. Consequently, in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap 141, we nullify the judgment of the first appellate court and set aside the decree on appeal in Civil Appeal No. 9 of 2018. Ultimately, we li remit the file to the High Court before another judge for immediate ordering the reception of additional evidence in compliance with Order XXXIX rules 27, 28 and 29 of the CPC upon hearing the parties. We further order that after receiving additional evidence, the High Court should compose and deliver the judgment to the parties. We make no order as to costs. DATED at DAR ES SALAAM this 19th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 19th day of November, 2024 via video conference from High Court of Arusha in the presence of Mr. John Shirima, learned advocate for Respondent also holdings brief for Mr. John Materu learned counsel for the Appellant is hereby certified as a true copy of the