mwajuma halfan vs amir suwedi 2013 tzhc 2233 20 june 2013

IN THE HIGH COURT OF TANZANIA AT MASASI [MTWARA REGISTRY] PC. MATR. APPEAL. NO. 2 OF 2011 [Arising from Masasi District Court Civil Appeal No.25 of 2009 Original Michiga Primary Court Civil Case No.8 of 2008] MWAJUMA HALFAN..............................................APPELLANT VERSUS AMIR S U W E D I.................................................... RESPONDENT Date of last Order - 19/6/2013 Date of Judgm ent - 20/6/2013 JUDGMENT KIBELLA, J. This is a second Appeal lodged by the appellant herein against the decision of the District court of Masasi in Civil Appeal No.25 of 2009 which inter alia upheld the Primary Court decision on the issue of division of Matrimonial assets, and which directed the parties at page 2 of the said decision that:- 4 -,:_ "x , “So long as the disputed assets are really properties it will be y v fa ir if the two properties be valued and the appellant can give .•-,/4he money to the respondent in each property and remain v with the assets or the respondent can do the same thing, but if the above way fai! it is my considered view the same be sold and the proceeds of sale be divided among the parties.” l The above holding was a result of an appeal which was herd exparte, as the appellant herein who was the Respondent before the District Court, neither appeared nor did she filed a reply to the memorandum of appeal in that court. However on noticing the existence of the above decision, the appellant was aggrieved and filed this appeal. Briefly the facts; are that the appellant, Mwajuma Halfani, and the Respondent Amir Suwedi contracted an Islamic Marriage in 1993. That in 2008 their marriage turned sour, and the appellant petitioned for decree of divorce and division of matrimonial properties, before Michiga Primary . _ % Court. A decree of divorce was granted followed by division of Matrimonial properties. The Respondent was aggrieved by the decision and appealed before the District Court Masasi on the ground among other, that his house which was subject to division was less valued. The appellant, who was the Respondent before the District court, was notified to file her reply to the memorandum of appeal two times. On 3/9/2009 she entered appearance before the District Court, and told the court that she intended to engage an advocate in her case, and the case was adjourned^.to 10/9/2009, where she was also absent, and the last chance^was given to her and the case was fixed on 15/9/2009, where the 4 -js ■■■■ appellant also never appeared and no reply to the memorandum of appeal was filed. The District Court heard the appeal in the absence of the respondent [appellant herein] and gave the decision, hence this appeal. In the memorandum of appeal field in this court the appellant has advanced four main grounds to trie effect that:- 1. The District Court erred in law in entertaining an appeal which was time barred. 2. The District Court erred in law in ordering execution of decree which had already been executed by the consent of the parties, before the illegal application for execution was ordered. 3. The District Court being an appellate court erred in law in indulging itself in execution proceedings thereby passing the Michiga Ph.-nary Court which was supposed to be the executing court. 4. The District Court erred in law and infact when it disregarded the interest, cuclody and maintenance of four issues of marriage in the distribution or sale of the only matrimonial house and farm. During the heanng of the appeal, the appellant enjoyed the service of Mr. Mtembwa,learned advocate, whereas the Respondent was unrepresented. Submitting, in support of the first ground of appeal, Mr. Mtembwa learned advocate argued that, the respondent’s appeal before the District Court was filed cut of time and the District Court erred in entertaining an appeaUwhich was time barred. He argued that the decision of Michiga Primary Court was delivered on 14/7/2008 and the appeal before the District Court was Tiled on 15/7/2009 approximately after a year later. He viewed thqt, the came was contrary to section 20(3) of the Magistrates’ Courts Act, [C a p .‘ 1 R.E 2002] which requires an appeal before the District Court to be filed ..iihin thirty days from the decision appealed against. He referred section L' ;) or the Law of Limitation Act, cap.[89 R.E 2002] to the effect that such ppeal ought to have been dismissed. To cement his argument he also referred the case of Rashidi Abdallah Vs. Asha Salum, Civil Appeal Nc. 7/20G6, CAT at Dar es Salaam [unreported] which held that limitation of ^ r io d must be complied with. On the s e ::,id and third grounds, Mr. Mtembwa submitted that the District Court be'.. 3 an appellate court had no power to order execution of decree, which h \ . already been executed by the consent of the parties. He cited the cac of Re-Jani Mohamed Ladha [Debtor] [1981] EA.175 and argued thal, \ was not necessary for parties to go before the court for execution, but ti. ' may agree themselves and-later inform the court. That the parties in the : lslant case executed the decree of the court by consent, by the respond.:., agreeing to surrender all the disputed properties to the appellant. He furthe. submitted that the execution which was made in compliance wii;, the District Court order, was illegally made as no proclamation o r ; tice of sale was given contrary to Order XXI rule 66(1) of the Civil P roced. j Act, [Cap.3 R.E 2002] on this point he referred the case of Ami Tanzan . .id Vs. OTTU, Civil Appeal No.96 o f 1998, HC Dar es Salaam which i,,.. ,:i that failure to give notice of proclamation of sale vitiates the s a le / On the la-.- cuna Mr. Mtembwa argued that the District Court erred in law and /act 3n.it disregarded the interest, custody and maintenance of the children the distribution of the properties. He added that the District Court c it to have considered section 114(2)(d) of the Law of Marriage Act : ).29 R.E 2002] which provides that in dividing the properties the \- jre of the children must be considered. He concluded in his submission ■ requesting this court to quash the District Court’s decision and re-;. s the Primary C ourt’s decision. On hi; the Respondent, admitted that, he never applied for extension of tir 3 io d je his appeal before the District Court out of time, because his a;: i \;a s filed within the statutory period of thirty (30) days. He further ad: • Ci to have signed a document, before the Village Executive wff Ci Michiga surrendering his share out of confusion because h^ w; .isiui^od with the decree of divorce, however he later changed his i\, a. ;d decided to obtain his share from the matrimonial assets. Having b .. through the record, the issue is whether the appellant’s appeal has me. r. disposing this appeal, I will confine my arguments on ihe grounds of jc’l filed in this court. Starting < , 3 first ground, the appellant through his advocate Mr. Mtembwa has i'aed that, the appeal before the District Court was lodged out of ti. id Ihe District Court erred in entertaining on merits an A appealf~which 'me barred. I have gone through the record, and noticed the.: th; nary Court’s decision which was a subject matter of appeal before . ’strict Court was delivered on 14/7/2008, while the appeal against 3cision was filed before the District Court of Masasi on 15/7/200S ^ar later. As rightly submitted by Mr. Mtembwa, that was contra.‘v ' 20(3) of the Magistrates’ Courts Act, [Cap. 11 R.E 2002], which ;o : such an appeal to be lodged within thirty (30) days from the dat i the decision appealed against. In his reply to Memoranda:r. : ; the respondent, stated that, he applied for extension of time berc.ro : ; hi,: appeal. However in his submission before this court, he sdnV.. t h^ never appiied for extension of time as his appeal was filed wi. '-i. I had ■ tin.-3 to go through the record trying to locate if the responden; e. \ie d for extension of time to lodge his appeal before the District >oo ■t there was none. Therefore under Section 3(1) of the Law of Lirr.i;a^- [Cap.89 R.E 2002], the Respondent’s appeal before the Districl -.Lto hs /e been dismissed for being time barred. This court there; .r- ks revisionai powers and proceeds to find that the R e sponder.^ . ! be,'ore the District Court was incompetent and the decision cl ,ik t Court which emanated from an incompetent appeal are hereby c. .lUliiiy. However, notwithstanding the nullification of the District .cisiun in Civii Appeal No.25 of 2009, the Primary Court’s c e ^ ^ o ivil Jase No.8 of 2008 which was not faulted by the District Co intact. The f.isl .. aLn e suffice to dispose this appeal, however, I will say few w o ,... jg a id s 10 the remained grounds. In ground 2 and 3, the appeli: ihac the District Court erred in ordering execution of the decree , /as already executed by consent of the parties. However in > issLn, the appellant’s advocate admitted that neither of the pa. j f applied for execution, either in the Primary Court in District C. .. je i sg the case therefore, what was filed before the District C c;;ri a appeal against the decision of the Primary Court, and not an app':~ execution. The decision of the District Court in Civil Appeal N c ' 9, .vss not an order for execution of the Primary Court’s & a decree in appeal which upheld the trial court’s decision o. ,n >f assets, and directed the parlies the manner of division. !i :;n. had all the evidence to prove before the District court that : ' Cc .sit’s decision was already executed and the Court acknowlec. :de of execution and marked the same closed he ought to ! ,c ed the same before the first appellate Court, and not before thio o >3 'Jisifict Court must be challenged on what was before it, ..a i.. could have appeared before the District Court which she ^ ear and presented what she claims before this court probably a of the District Court, could have considered the same and the u.: old have been different. This being the second appellate r no. deal with matters which were not laid before the *irst appeik.. . On i ’r . . i p,d the learned advocate claims that the District Court ought to !■' . .cle ea the welfare of children when dividing the properties. o. ; have already found herein, the District Court did not fault the Prih : t’s decision on the division of Matrimonial assets. If the ‘appeKa . . satisfied with the division of properties made by the Primary Cc- c h j.0 have cross-appealed before the District Court, This is con. n e v matter raised in this court which the appellant, had opportu p e '! a ;3 same before the District Court, if she was dissatisfied ' • V i o o u i i ’s decision. Before Je ' wi: seems to si at, dvs- parties exec On ;r tJ • ,. acknowledg; ♦ 1• must be rec ki ;v _< the matrimc -iS . . different fro: ;f ■ , r the Primary nci d.: between its cl : The second ; \ /! Ci, as prior st: i1 i :w*3 Leen no application for execution either before the r U. . ,>afuie the District Court. W hat was done was in com pliant Li U . . . ^ 11ai y C ourt’s decision which ordered equal division or i,i i v. - ..‘ C * Since 1C ... nplaint, on the value and the division of the proceeds cf l . - .ion, that the division was done in compliance with the Pri;. it.- = .. Jsion. If the appellant was not satisfied with Primary Cou ~ )r -■ ? ought to have appealed against that decision, instead of ;c 'A j- ’ ;nr^nt which was against the Primary Court’s v decision and U . .. proceedings. Ail in l is-', in ihe end requested this court to quash the District - • id restore the Primary Court’s decision. As already . V . v r :rict court’s decisior had no leg to stand on, however, tiv • 3 decision which was not reversed by the District Cou; ir j prevail. For the foregoing reasons and what I have e n d ' ; r y appeal is allowed to that extent. No orders as to ccsts R .L. Kibelia, Judge 20/6/2013 Order: Juc rr : cne rnbers today 20th June, 2013 in the pn\ . . .id ''halfan a brother of the appellant who is abs ! ■: r-ir learned advocate, Mr. Mtembwa. However, in 1’ . '■ of . > Respondent in person. c,. uiiy explained, f/i* • / 3*’* / / i n \ H* '• £ j *\*3k i /i& re e tra , Judge 20/6/2013