20160322 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA ATMWANZA MATRIMONIAL APPEAL N0.42 OF 2015 {Appeal from the decision of the District Court of Tarime at Tarime/ MARA (Hon. KIUMI RM) dated the 2Z1d day of June/ 2015 in Matrimonial Appeal Case No. 01/2015 from original Matrimonial Cause No. 45 of 2014 of Tarime Urban Primary Court). MOSI NYAMHANGA WAIGAMA ................................... APPELLANT VERSUS PETER ZAKARIA WAMBURA ................. , .................. RESPONDENT JUDGMENT MAKARAMBA. J.: This is Judgment on appeal in a matrimonial dispute originating from the Judgment and Decree of the District Court of Tarime at Mara (Hon. KILIMI RM, Esq.) dated 22 nd day of June, 2015 in Matrimonial Appeal Case No. 01/2015 from original Matrimonial Cause No. 45 of 2014 of the Tarime Urban Primary Court. The backgrou·nd to his appeal briefly is that, the Appellant, MOSI NYAMHANGA WAIGAMA, and the Respondent PETER ZAKARIA WA"."41BURA, were husband and wife, having celebrated their marriage in 1?84. However, four years down the road, sometimes in 1988 to be specific, their marriage became rocky as it faced with some turmoil leading to separation. In 2014, the Respondent, PETER ZAKARIA WAMBURA, brought an action for divorce ·before the Tarime Urban Primary Court as Matrimonial Cause No. 45 of 2014. The Tarime Urban Primary Court Page 1 of 16 ,... .....___,; granted the divorce. The Appellant, MOSI NYAMHANGA WAIGAMA was dissatisfied with the decision and appealed it to the Tarime District Court, as Matrimonial Appeal Case No. 01/2015. In its decision dated 22 nd June, 2015 before Hon. Kilimi Esq RM, t~e Tarime District Court upheld the decision of the· Tari me Urban Primary Court and hence ·dismissed the appeal. The Appellant is now dissatisfied with the decision Tarime District Court and has appealed it to this Court on nine (9) grounds of appeal, namely: 1. That the District Court erred in fact and law by upholding the decision of the ·Tarime Urban Primary Court of condemning the · Appellant completely unheard 2. That the District Court erred in law and in fact by upholding the decision of the Tarime Urban Primary Court which did not direct itself to Kurya customary law under which the marriage was contracted. 3. That the District Court erred in law and in fact for being exceedingly biased in favouritism against the Appellant in favour of the Respondent by maliciously diverging from what was actually submitted by the Appellant during hearing of the Appeal instead enlarg~ and reshaped what was actually testified by Respondent at trial and at appeal. 4. That the District Court erred in law and in fact by upholding the decision of the trial primary Court which unreasonably refused and or failed to consider the application of the Appellant requesting the trial magistrate to disqualify himself for being a deranged umpire. 5. That the District Court erred in law and in fact in upholding a decision of the trial primary court which by ill motive rejected to honour the Appellant's request of legal representa_tion. ~ . Page 2 of 16 6. That the District Court erred in law and in fact by upholding a decision of the trial Primary Court which ·was based on untrue testimonies of the Respondent on adultef'½ protracted separation and children born out of wedlock. 7. That the District Court misdirected itself both in law and in directing that there is an avenue of instituting a separate suit by the Appellant for the incidentals arising from a decree of divorce that shall include distribution of matrimonial properties, custody of children and maintenance. 8. That the District Court erred in law and in fact by failing to hinge on the interest of justice principle in striking a balance by looking into whether injustice .would have occurred to any of the parties if retrial would have been granted as prayed by the Appellant. 9. That the District Court erred in law by issuing a defective decree. The Appellant' has prayed before this Court to allow the Appeal and set aside the Judgment and Decree of the District Court, with costs to the Appellant both at the District Court and in this appeal. The appeal by. order of this Court and with the consent of the parties was disposed of by way of written submissions by Mr. Mathias Omary Kisegu representing the Appellantand Mr. Kassim Gila, for the Respondent. In his submissions in support of the first ground of appeal, Mr. Mathias stated that, the Appellant has been condemned unheard. In reply, Mr. Kassim submitted that, the Appellant was not condemned unheard during the trial, both parties were heard and the Appellant fully participated in the trial save for the fact that, the Appellant had refused to adduce her evidence when she was required to do so by the trial Primary Page 3 of 16 Court. Paragraph 1 of page 6 of the trial Court proceedings shows that, on the date the matter came for defence hearing Appellant was required to testify, she simply informed the Court that, "kwa Jeo mimi siko tayari kuongea chochote'~ which literally meant that, "for today I am not ready to say anything). The Appellant did not give reasons as to why she was not ready to testify. Given the situation, the trial Court was justified in scheduling the matter for judgment and hence the Appellate District Court was justified in holding so, Mr. Mathias surmised. In .rejoinder, Mr. Mathias submitted that, the Appellant was never summoned to appear before the· Marriage Reconciliation Board. Thus the Certificate that was submitted to the Primary Court was clandestinely fabricated to implicate the Appellant that she had refused to appear before the Board. At the Primary Court, the Appellant received summons on the same day when she was asked to enter upon her defence at a time the Appellant had just returned from undergoing an operation as she suffers from chronic tonsillitis. In the documents filed by the Respondent on the 20th January, 2015; the Respondent acknowledges that,. the Appellant was · sick when she was called to defend her case. The Respondent acknowledged further that, the Appellant was attacked and intimidated by the trial Magistrate. The Appellant was· waiting to receive her prayer of legal representation as she verily believe to be tongue-tied, unable to make her defence that's why she said "Kwa leo mimi siko tayari kuongea chochote." Mr. Mathias· maintained that the right to a fair trial is_ among the cornerstones of any just society a·nd referred this ·court to two decisions of the Court of Appeal of Tanzania, Attorney General v. Page 4 of 16 .· · ~ Lesinoi [1980] T.L.R. 214 and D.P.P v. Daudi Pete [1993] T.L.R. 22 respectively where that general principle was succinctly restated thus/ '1t is accepted that a right to fair trial is one of the cornerstones of any just society." I have carefully gone· through the proceedings of the lower Courts and their respective decisions. The proceedings of the trial Court both of 7th November, 2014 and lih December, 2014 show very clearly that, the Appellant was accorded the right to be heard. On 7th November, 2014, the matter was set for the hearing of the Plaintiff's case and both parties appeared before the trial Court. The record shows that before the Respondent/Plaintiff made his case, the claim of the Respondent was readover to the _Appellant, and the Appellant answered as follows: "Mimi bado nampenda mume wangu nahitaji kuendelea kuishi nae/; literarily meaning that, "I still love my husband and I need to continue living with him."· Upon the Respondent making his case in chief, the Appellant thus called upon to cross-examine the Respondent, but did not ask the Respondent any question and thus in the eyes of the law, the evidence in chief tendered by the Respondent remained un-challenged and/or un-discredited. On the 1th December; 2014 when the matter was set for defence hearing, both parties appeared before the trial Court. The Respondent was called upon to make her defence. Instead she simply stated th us "Kwa Jeo mimi siko tayari kuongea chochote", which literarily translated meant thus, "For today I am not ready to say . . anything." The Appellant did not assi_gn any reasons as to why she was not ready on that day to make her defence. The Appellant did not even Page 5 of 16 . pray for an adjournment of the proceedings so as to ready herself to give her defence. This was necessary having informed the Court of her not being ready to say anything and thus she would have been given the opportunity to make her defence on another future date. This being the case it is the finding of this Court that, the Appellant ·having been availed of the right to enter upon her defence and having failed exercise her right, she is taken to have been satisfied with what the Respondent had stated in the case. In these circumstance, the Appellant cannot be heard to complain that she was condemned unheard. I am of a very strong_ view, and give what I have stated above, that the District Court correctly upheld the decision of the trial Court. This will make first ground of appeal to lack any merits and accordingly it stands dismissed. On the second ground of appeal, Mr. Mathias submitted that, the institution of marriage is governed by the traditions and the customs of the couples involved. According to Mr. Mathias, the Appellant and the Respondent trace their traditions and customs from the Kurya tribe. In the absence of any contrary evidence, their marriage was contra~ed according to the customary rites of the Kurya tribe from where they both trace their origins. In reply, Mr. Kassim conceded that, the parties herein celebrated their marriage according to Kurya customs. During the trial, the Court was aided by two Court assessors who- gave their opinion on the matter. However, the Appellant has failed to show how both the trial and the fi~st Appellate Court have failed to take into account the Kurya customary law in determining the matter. In rejoinder, Mr. Mathias submitted that, there is Page6of16 ~ nowhere in the record of the trial Court where the Court assessors gave their opinions as to the position of the Kurya customs and traditions on dissolution bf a marriage conducted according to Kurya customary rites. Oh the submissions of learned Counsel and the Court record, I am at one with Mr. Kassim that, the Appellant has failed to show how both the trial and the first Appellate Court have failed to take into acco_unt the Kurya customary law in determining the matter. The Appellant could have stated before the trial Court, which Kurya custom was not considered by the trial Court in reaching its decision. This being the case, I find that the District Court was correct in upholding the decision of the trial Court on this issue. This will also make the second ground of appeal to lack merits and accordingly it also stands dismissed. In respect of the third ground of appeal, Mr. Mathias submitted that, the judgment entered by the District Court was full of bias and did diverge from what was submitted by the Appellant instead invigorated what was submitted by the Respondent detrimentally to the Appellant. In reply, Mr. Kassim submitted that, it is a practice of the Appellant to merely complaining · about the · issue of biasness whenever the matter is determined against her favour. On the submissions of learned Counsel on the third ground of appeal, I am of the view that, the question of biasness on the part of both two lower courts being such a serious allegation, and the Appellant ought to have proved it by bringing evidence to establish it. In the court record there-is no scintilla of evidence· by establishing the allegation of biasness by the Appellant. The· Appellant having failed totally to adduce evidence to . Page 7 of 16 V support her allegation of biasness, with due respect, this makes the evidence on record to tilt in favour of the Respondent. It would seem that even the Court assessors in the trial Court gave their opinion in favour of the Respondent. In such circumstances, I am constrained to-conclude that the Respondent was· favoured. This will make the third ground· of appeal also stand dismissed for lack of merits. On the fourth ground of appeal Mr. Mathias submitted that, the trial Primary Court unreasonably refused and/or failed to consider the application by the Appellant requesting the learned trial Primary Court Magistrate to disqualify from continuing to preside over the matter for reasons of being a "deranged umpire." According to Mr. Mathias, the Appellant had already noticed the relationship between the Respondent and the learned . trial Primary Court Magistrate and prayed for his disqualification from the matter. However, the learned trial Primary Court Magistrate did not disqualify from the matter but continued to preside over it ultimately ruling in favour of the Respondent, Mr. Mathias further submitted. In reply, Mr. Kassim submitted that, nowhere in the record it is shown that the Appellant requested the learned trial Primary Court Magistrate to disqualify himself on ground of being biased or conflict of interest. Even if such concern was raised, Mr. Kasssim further submitted, it is within the discretion of a trial Magistrate to either disqualify himself or not. In rejoinder, Mr. Mathias submitted that, the Appellant prayed before the trial Magistrate to disqualify himself from presiding ove·r the case since Page 8 of 16 .s ,: I u she had lost confidence in him for mistreating her with threat, embarrassment and having a friendship with the Respondent. The fourth ground of appeal touches on the nerve or hallmark of independence of a judicial officer as it seeks to. question failure by the learned trial Primary Court Magistrate to disqualify from presiding over the proceedings on ground of biasness or conflict of interest. I should point out here the disqualification of a judge or magistrate is not as of right. A ;. claimant must adduce sufficient reasons to support his allegations before a judicial officer being asked to disqualify himself from presiding over a matter does so. Otherwise, if this was not the case, many a judicial officer will find themselves having to disqualify themselves on very flimsy allegations unsupported by• any evidence to establish the grounds for disqualification. As it was succinctly reiterated by the Court of Appeal of Tanzania at Dar es Salaam in its decision in the case of Standard Chartered Bank {Hong Kong} Ltd v. VIP Engineering and Markerting Ltd, Civil Applications No. 158 & 159 of 2011, at page 6 (unreported) which was cited with approval in yet anoth~r decision of the same court, The Registered Trustees of Social Action Trust Fund and Another v. Happy Sausages Limited and Others [2004] TLR. · · 264, thus:- '1t is our considered view that it would be an abdication of Judicial function, and an encouragement of spurious applications for }l(dicial officer to adopt the approach that he/she· should disqualify Page 9 of 16 himself/herself whenever requested to do so on application of one of the parties." In an English case giving .the test for disqualification of a judicial officer from presiding over a matter, which our very own Court of Appeal adopted, Porter and Another v. Magill [2002] I All ER465, it was stated as follows:- "The test for apparent bias is whether the alleged circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the Court was biased. " In the proceedings of the trial Primary_ Court it is shown that, the prayer by the Appellant for disqualification by the learned trial Primary Court Magistrate was made after both the Plaintiff and the Defendant's case had been closed. This Court asks itself this question - If indeed the Appellant was threatened by the learned trial Primary Court _Magistrate before the hearing of the case, why did Appellant fail to raise such serious · allegation before or during the hearing of the case, but to wait until both sides · had closed their case? As both the trial and the first instance appellate District Court rightly observed, the Appellant never disclosed to the lower courts that she was threatened by words when she appeared before the trial Court. This being the case, di_sclosing such matter at this stage seems to be an afterthought. It is for these reasons this Court is not . entirely convinced of the existence of the circumstances giving rise even to Page 10 of 16 f>0 V a remote possibility that both two lower Courts manifested some bias towards the Appellant in the manner they dealt with the case. It is for these reasons that, the fourth ground of appeal also must fail and accordingly is also stands dismissed. As for the fifth ground of appeal, Mr. Kassim submitted that, the letter by the Appellant requesting for legal representation was wrongly channeled as it was sent to the Resident Magistrates' Court of Musoma instead of the District Court of Tarime. The purported letter never reached the Tarime District Court. Even if the said letter was sent to Musoma Resident Magistrates Court, the same was wrongly made as the Appellant was required to file a formal application to that effect in terms of section 47 (l)(a) and (b) of the Magistrates' Courts Act, [Cap. 11 R.E 2002] and the same was to be filed in the District Court within which the trial Primary Court situates. In rejoinder Mr. Mathias submitted that, the question of misdirecting a letter was not fatal, the error could have corrected by a Court of law devoted in administering justice . amongst its members of the sociecy. . It was unjustifiable for a court of law to punish a ·poor layperson litigant seeking justice for a mere curable mistake. I have carefully gone through the Court records. As the District Court rightly •observed, the purported letter is not· in the Court file. In the absence of such letter, this Court is not in a good position to determine the issue with regard to the purported request. The fifth ground of appeal for these reasons collapses and it also stands dismissed. Page 11 of 16 ----,--- -- " - Submitting on the sixth ground of appeal, Mr. Mathias stated that, the decision of the Tarime Urban Primary Court touches the rights of children. The only party who appeared in Court and testified is the Respondent. The Appellant, for some yet unknown reasons failed to exercise· her ·right to be. heard despite having been availed such opportunity. This being the case, the trial Court therefore pronounced itself only on two of the six issues (children) of the marriage, Mr. Mathias further submitted. According to Mr. Mathias, the other four issues (children) have been under the care and service of the Respondent. They run the risk of suffering in their rights as children, considering that all the six issues (children) have continued to be known and acknowledged by the Respondent as being his heirs. The Appellant therefore prays that, the matter: be fairly heard before an unbiased umpire and all the rights be accorded to both parties. In reply, Mr. Kassim submitted that, Appellant never challenged the evidence of the Respondent during the trial. It was the testimony of the Respondent at the trial that, the parties celebrated a custon:,ary marriage in 1984 and that they separated in the year 198.8 as a result of adulterous behavior by the Appellant.- However, as a result of their cohabitation they were blessed with only two issues, namely; Frank Zacharia and Marry Zacharia. After separation, the Appellant had relations with other men and consequently· she sired the other four children who do not belong to Respondent. · In rejoinder, Mr. Mathias submitted that, if he Appellant· had ben heard, what the Respondent testified .at the trial court would have not Page 12 of 16 \J stood. According to Mr. Mathias, there was no such a long separation, but the Respondent deserted his family. It is the Respondent who committed and continues to commit adulterous acts Mr. Mathias further submitted, and added that, there is documentary evidence that, the Respondent was paying school fees for his children at expensive schools including Tusiime· School in Dar es Salaam. On the submission by learned Counsel, I am at one- with Mr. Kassim that, the Appellant never challenged the evidence by the Respondent. The Appellant desisted from challenging the evidence by failing to cross- examine the Respondent on the alleged untrue testimony. If the Appellant had put questions to the Respondent by seizing that opportunity during cross-examination she could have discredited the testimony of the Respondent. It is a trite legal principle both in criminal and civil trials that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence as it was succinctly restated by the Court of Appeal of Tanzania at page 9 of the decision in the case of Moses Norbert Achiula vs. the Republic, Criminal Appeal No. 63 of 2012 {CAT}{Mbeya}{Unreported}. It is for the above -reasons that, the sixth ground of appeal also fails and also stands dismissed. As for the .seventh ground of appeal, Mr. Mathias submitted that, it is a matter of principle that matrimonial cause always incl.udes the issue of divorce, distribution of m·atrimonial properties, and custody of the issues ( children). According to Mr. Mathias all these three indispensable issues Page 13 of 16 were not properly addressed at the trial Urban Primary Court of Tarime, which envisaged only divorce because the Respondent had already engaged another woman by the name of Antonia who is his wife today. The Respondent denying some of his children has condemned them as having been born out of wedlock thus abusing the fundamental principle of welfare of children particularly by the Respondent accepting only two of the six issues of the marriage. In reply, Mr. Kassim submitted that, the District Court properly held that, there is an avenue of instituting a separate suit by the Appellant for incidentals arising out of decree for divorce which may include applications for distribution of matrimonial properties, custody of children and maintenance in terms of section 81(a) and (b) and section 82 of the Law of Marriage Act, .[Cap.29 R.E 2002]. In rejoinder, Mr. Mathias submitted that, the Appellant is neither against the ·divorce nor after distribution of matrimonial properties, custody of children and maintenance. Mr. Mathias submitted further that the picture of adultery the Respondent has painted on the Appellant is a_ worse one and such colossal and solid behavior if it is left to remain on the court record it will tarnish her reputation throughout her entire life. The Appellant- insists that she is not adulterous but the Respondent, Mr. Mathias surmised. On the arguments by learned Counsel, .this Court finds that, issues of divorce, distribution of matrimonial properties and custody of children were not prayed for. As such it will not be appropriate for this Court to · pronounce on remedies that were not prayed for. It is the Respondent who Page 14 of 16 ( .. '. 'V lodged the original matter and sought an order for divorce. The Respondent therefore never sought for an order for the distribution of matrimonial properties and custody of children. Since an order for divorce was granted, the Appellant is still at liberty to lodge applications for any incidental arising from the decree of divorce including distribution of matrimonial properties and custody of children in terms of section 81(a) and (b), section 82 and section 114 of the Law of Marriage Act, [Cap.29 R.E 2002]. It is for these reasons that the seventh ground of appeal collapses and it is accordingly dismissed. As for the 8th and 9th grounds of appeal, Mr. Mathias argued that, the District Court erred in law and in fact by failing to hinge on the principle of interest of justice in striking a balance by looking into whether injustice would have occurred to any of·the parties if retrial would have been granted as prayed by the Appellant. In reply, Mr. Kassim submitted that, both the trial and the ·appellate District Courts properly evaluated the evidence adduced during trial and consequently properly determined the matter in favo~r of the Respondent's based on the evidence adduced ·and which was never contested by the Respondent. On the evidence on record, and as I have intimated to earlier in this b~ . . judgment, the evidence~ tne Respondent before the trial Court was never challenged by the Appellant. who for some yet unknown reasons did not offer any defence. in· the matter. In any event, looking at the evidence before the trial Court, undoubtedly; on a balance of probability its evidential weight tilts more ·in favour of the Respondent than the Appellant:· Page 15 of-16 ___,,...----· ~ - ,. ·. ___,, . In respect of the 9th ground of appeal, the Appellant has not been abale to make it clear with regard to the alleged defectiveness . of the divorce decree . issued by the District Court. I have gone through the Judgment and Decree of the Ta rime District Court. attached to the Memorandum of Appeal. .The said decree was extracted from and agrees with the Judgment. It is for'this reason that both the 8th and 9th grounds of appeal collapse. They are both accordingly dismissed. In the course of his submissions in chief and in rejoinder, the learned Counsel for the Appellant raised the issue that, the Appellant was never summoned to appear before the Marriage Reconciliation Board. ~..QVU . . upon going through and perusing the copy of the Certificate of the Marriage Reconciliation Board (Form No.3) in the Court record, the Chairman of the .Board certified therein that, the Appellant was issued with summons to appear before the Conciliation Board but she never showed- up. This being the case the allegation by the Appellant that she was never summoned before the Marriage Reconciliation Board is without any merits and is accordingly dismissed. This appeal fails in its entirety. It is accordingly dismissed. The Judgment and Decree of the Appellate District Court is hereby upheld. The nature of the matter· and the circumstances of the Appellant do hot call for award of costs. Each party shall therefore bear its own costs in this appeal. It is so ordered. BA Page 16 of 16 Date:- 22/03/2016 Coram:- Hon. E.G. Rujwahuka, DR Appellant:- Mr. Tumaini Mugonja for the Appellant Respondent:- Mr. Kabago for the Respondent. Also the Appellant present. B/C:- Sekela Order:- Judgment delivered today in the presence of Mr. Tumaini Mugonja for the Appellant and the Appellant Masi Nyamhanga Waigama also present and Mr. Kabago for the Respondent, present. -~ E.G. RUJWAHUKA DEPUTY REGISTRAR AT MWANZA 22/03/2016