mwajabu shabani mtalila vs izack yona pallangyo 2016 tzhc 2089 7 october 2016

IN THE HIGH COURT OF TANZANIA AT DODOMA (PC) Matrimonial Appeal No. 2 of 2016 (Arising from the decision of the District Court of Mpwapwa in Civil Appeal No. 3 of 2016 and Original Matrimonial Cause No. 3 of 2013 at Mpwapwa Urban Primary Court) MWAJABU SHABANI MTALILA .................... APPELLANT VERSUS IZACK YONA PALLANGYO RESPONDENT JUDGMENT 13/09/2016 & 07/10/2016 SEHEL, J. This appeal originates from Mpwapwa Urban Primary Court (hereinafter referred to as "the trial court”) whereby the appellant petitioned for divorce before a Primary Court on the ground that quite often the respondent used to beat her. The trial court granted the divorce after being satisfied that the marriage had broken down irreparably and ordered for equal distribution of matrimonial assets. The District Court reversed the decision of the Primary Court on the ground that there was no proof that the marriage was broken d o w n l beyond repair. It therefore made an order for separation for two years and quashed the order for division of matrimonial properties. Aggrieved with the finding of the District Court, the appellant filed an appeal to this Court. Three grounds of appeal were fronted, these are: 1. That, the magistrate erred in law and fact for dismissing decision of Mpwapwa Primary Court while their marriage has broken down beyond repair; 2. That, the magistrate erred in law and fact for dismissing decision of Mpwapwa Primary Court without regarding strong evidences adduced by the appellant; 3. That, the magistrate erred in law and fact for dismissing decision of Mpwapwa Primary Court basing on weak and contradictory evidence stated by the respondent. At the hearing of the appeal both parties appeared in person, unrepresented. The appellant briefly told this Court that she is not satisfied with the decision of the District Court that is why she appealed to this Court. She said the marriage is irreparably broken down as in 2006 she was chased away from their matrimonial home by her husband and that all the properties are in the hands of her husband while she had to take care of their two children without any assistance from the husband. On the second ground, she submitted she was denied the right to ask question and that the District Cc failed to evaluate the evidence that she passed through village council; ward level and marriage conciliation board trying to solve the problem without any luck. The respondent responded that the Primary Court erred in granting divorce after hearing the dispute in one day without giving parties opportunity to bring their witnesses. He said he still loves his wife and he is not ready for divorce. He said it was the appellant who decided to leave the home in 2016 and did not want to return home. The appellant re-joined that the major reason for asking divorce is because she quite often encountered beatings and harassments from the respondent. She said in November, 2011 she was badly beaten such that she went to report to the village office, she has also reported the matter at police “dawati la jinsia” and to the family where they were settled. However, in 2015 she was beaten again that is why she decided to file for divorce. The issue here is whether the marriage has irreparably broken down. It should be borne in mind here that this court is to be guided by the record of the Primary Court. I have gone through the Primary Court proceedings and noted that the dispute was heard on one day as stated by the respondent and it was only the appellant and,. respondent who gave evidence. There was no any other witness called to prove to the satisfaction of the court that the appellant encounters frequent beatings from her husband. What is on record is that the respondent told the Primary Court that they had misunderstanding between them but such misunderstanding was settled before Dawati la Jinsia. He also told the Primary Court that it was the appellant who left their home without saying where she was heading so the respondent decided to let her go with these evidences I concur with the District Court findings that there was no enough evidence to prove that the marriage irreparably broken down. I therefore uphold the finding of the District Court for a decree of separation for two years in order to allow parties to try to settle their differences. The appeal is therefore dismissed. Since parties are husband and wife, I make no order for costs. It is so ordered. DATED at Dodoma this 7th day of October, 2016. B.M.A Sehel JUDGE Judgment delivered in open court at Dodoma, under my hand and seal of the court, this 7th day of October, 2016 in the presence of all parties. Right of Appeal is fully explained that Certificate on point of law is required for an aggrieved party to appeal to the Court ot Appeal of Tanzania. B.M.A Sehel JUDGE 7th October, 2016.