7 ocr tanzlii CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED RUPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 23088 OF 2024 (Arising from the decision of Temeke District court, One Stop Judicial Centre at Temeke in Matrimonial Case No. 266of2023, delivered by Hon. Mwanakombo Twalib, SRM) PAMELA JOHN MSUYA....... ............................................................. APPELLANT VERSUS EMMANUEL GODWIN MREMA.................................................... RESPONDENT JUDGEMENT Date of last order: 10/1/2025 Date of Judgement: 14/01/2025 S.D. MWAIPOPO J, The Appellant Pamela Msuya is aggrieved by the decision of the District Court of Temeke in Matrimonial cause no. 266/2023 delivered by Hon. Mwanakombo Twalib, SRM on 2/8/2024. The impugned decision granted divorce between the parties with no order as to costs. Dissatisfied by the said decision, the Appellant has filed a Memorandum of Appeal containing three grounds as follows: - 1. The trial court erred in law by failing to accord the Appellant the right to be heard and be legally represented. 2. The trial court Magistrate was biased, abused her judicial discretion and consequently erred in handling the trial. 3. The court erred in law by failing to record the testimonies of witnesses during hearing. The hearing of the Appeal proceeded by way of written submissions, whereby both parties complied with the schedule. The Appellant fended for herself throughout the proceedings except for some few occasions where she was represented by learned Advocates Elizabeth Mlemeta and Abdus Mjungu while the Respondent enjoyed the services of the learned Advocate Emmanuel Godwin Mrema. Arguing in support of ground one of appeal, the Appellant submitted that; The trial court erred in law by failing to accord the Appellant the right to be head and be legally represented. She contended that she has all along been represented by different advocates and appearing in court regularly. However, on 25th April 2024 after the matter had been reassigned to another Magistrate, Hon. Mwanakombo, she appeared in person and the Respondent was represented by an Advocate, and the court proceeded with the hearing of the matter while the matter had been fixed for necessary orders and she was thus taken by surprise. She contended that she was not afforded the right to be heard since she needed to be represented by her Advocate. Further, the court did not inquire whether she was ready to proceed or not. The learned counsel argued that the court proceeded with the hearing despite the fact that there were no summons and the Appellant had to be notified in compliance with the Order issued on 22nd April 2024. Thus, the matter proceeded against the Appellant's will contrary to the constitutional right to be heard which is enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. Submitting on the second ground of appeal, the Appellant contended that, the trial court was biased, abused its judicial discretion and consequently erred in law in handling the trial. The Appellant submitted that, the trial court failed to record the Appellant's request for adjournment and recorded only Respondent's matters. She referred the court to page 6 of the proceedings. She submitted further that the Appellant's testimony was not taken under oath as compared to Respondent's and that no framing of issues was done during the hearing stage of the matter and issues were only framed at the time of composing the judgement. With regard to the third ground of appeal, the Appellant contended that the trial court erred in law by failing to record the testimonies of witnesses during the hearing. She argued that what has been recorded is not a true reflection of what the Appellant testified before the court or what transpired during the trial. She stated that some of the statements of the Appellant have not been reflected i.e. those on the illegality of the procedures that were conducted before the conciliation Board. She submitted further that; the trial court's conduct of ignoring and disregarding the relevant testimonies while recording the testimonies presented by the Respondent also demonstrates biasness and has occasioned injustice to the Appellant. She referred the court to page 10 of the Proceedings where there is no reflection of a statement that the Appellant admitted to have been given form No.03 while this has been reflected in the Judgment at page 2. She argued that this is contrary to the to the established legal principle pronounced by the Court of Appeal of Tanzania in the case of Abubakar! I.H Kilongo & Another vs Republic https://tanzlii.org/akn/tz/judgment/tzca/2022/722/eng@2022- 11-21 at Page 9 where the court held as follows: "It is equally settled that a Judgment of the trial court must be based on a pure reflection of what is contained in the record of proceedings". Based on the strength of his submissions, she prayed for the court, to find merit in the Appeal and allow it with costs. Submitting in rebuttal, the learned counsel for the Respondent began by drawing the attention of the court on the fact that the Appellant signed and filed the written submissions in court in her personal capacity while she was being represented by an Advocate Elizabeth Mlemeta. Arguing on the first ground of appeal, the learned counsel for the learned counsel for the Respondent submitted that he does not support it. He contended that it is not true at all that, the Appellant was denied the right to be heard. Based on the record of the trial court dated 14th February, 2024, the Appellant and the Respondent's Advocates were all present in court and the matter was scheduled for hearing on 25th March, 2024. That on 25th March, 2024, the Appellant's Advocate never appeared in court, instead the Appellant came in person. The Advocate as a court officer never notified the trial court the reason which made her not to attend, 4 therefore he submitted that the trial court was right to proceed with the hearing as it did. It was his submissions that the court must control the proceedings in court otherwise there will be abuse of the court process. He argued that failure by the Appellant's advocate to appear in court with no any apparent reason(s), cannot constitute denial of the right to be heard on the Appellant's side as it is alleged. The learned counsel for the Respondent argued that, article 13(3) of the Constitution of the United Republic of Tanzania, 1977 provides that, "... the courts shall safeguard the rights and duties of citizens according to law". He submitted that the Appellant's counsel is now blaming the trial court that, it never issued summons, something which he found ridiculous. He argued that the issuing of summons would have been relevant only if on 14th February, 2024 the advocate was not present and since she was present and the hearing date was fixed in her presence, then there was no need for the court to issue summons. He reffered the court to the Court of Appeal of Tanzania case of Golden Globe International Services Ltd & Another v. Millicom Tanzania N. V & 4 Others, Civil Application No. 441/01 of 2018 (un reported) where it was stets that: "The right to be heard just like other rights, must be exercised within the confinements of the law so as to avoid further breach of justice" He submitted further that, the Appellant was given the right to cross examine the Respondent and record of the trial court speaks for itself. Nevertheless, the Appellant entered defence and gave her defence testimony as DWl.By this alone it justifies that the court gave the Appellant the right to be heard and all the procedures were observed. On the second ground of appeal, the learned counsel argued that the Appellant is attacking the trial court that it was biased. He contended that such an act was an afterthought since the question of being granted an adjournment to a future date must be accompanied by a good cause. He argued that If Adv. Elizabeth John Mlemeta did not attend and never informed the trial court on her whereabouts the trial court had no duty to look for her and by doing so it would have had invited an impression that, the advocate was controlling the proceedings before the court. He argued further that, even the Appellant herself could not explain the where abouts of the advocate on that date and whether she was indisposed for being sick or not. Furthermore, he submitted that, all the evidence was recorded on oath contrary to what the Appellant's Advocate has stated while she never attended to defend her client. Submitting on the third ground of appeal, which is to the effect that, the r trial court failed to record the testimonies of witnesses; the learned counsel stated that the Appellant testified alone without calling any other witness to support her case. If she indeed had witnesses, she could have mentioned their names. However, she has not mentioned the name(s) of any witness or witnesses. Further, the learned counsel argued that the Appellant is also blaming the court that the reconciliation board did not issue her a certificate, he stated that this is none of this court's business, after all it is not a ground of appeal which is reflected in the Memorandum of Appeal. The certificate from the Reconciliation Board was tendered and the Appellant emphasized that she was not ready for divorce and the reason was that she had a Christian Marriage and wanted to go back to the church procedures. In conclusion the learned counsel implored the court to dismiss the appeal in its entirety. In rejoinder the Appellant reiterated his submissions in chief. Responding to the Respondent's averment that the submissions have been drawn and filed by the Appellant in her personal capacity, the Appellant submitted that a party can file written submissions as part of their case presentation either personally or through a legal representative. Hence, being aware of what transpired before the court on 25th April 2024 the Appellant opted to file her submissions in support of the Appeal in her own capacity. Rejoining on the first ground of appeal, the Appellant reiterated his submissions in chief. Additionally, the Appellant emphasized that during the trial, she appeared in person, and her presence was recorded in the proceedings. The Appellant requested for an adjournment due to the absence of her representative, but the court refused and demanded for the hearing to proceed. This refusal was not reflected in the court proceedings. Therefore, the Respondents argument that the court was never notified about the representative's whereabouts is not true. She emphasized that, by refusing to adjourn the case due to the absence of the Counsel for the Appellant who was indisposed, the trial court deprived the Appellants right to be legally represented. The Appellant amplified further that, while it is true that the court has powers to control the proceedings but that , such powers have to be exercised justly. She emphasized that since the Appellant appeared in person and requested an adjournment due to the absence of her counsel, considering that it the first time, the Appellant was appearing in person, the court ought to, Rave accepted the prayerj considering that fact, she should have been given the right to be heard on that prayer and not be compelled to proceed. She contended that the Proceedings clearly show that it is only the counsel for the Respondent who declared his readiness to proceed with the hearing of the case. With regard to non-issuance of summons, he submitted that, it is the counsel for the Respondent's assertion that the Appellant's counsel is now blaming the trial Court for not issuing summons, and that her assertion is ridiculous. In response, to this argument, the Appellant submitted that the case was adjourned in December, 2023, due to the absence of the Respondent and his representative. Further, the counsel who appeared on behalf of the Appellant only reasonably requested for an adjournment due to their absence. She stated that, it was on this one occasion, when the Appellant appeared in person, and requested for an adjournment due to the absence of her legal representative but the court failed to consider the request for adjournment and did not even reflect this in the Proceedings. She submitted further that, the fact that the Appellant was given the right to examine the Respondent and present her defense does not mean that she was not deprived her of the right to full legal representation. If the Appellant had intended to appear alone from the beginning, she would have done so. However, the records clearly show that she intended to be represented at all times. It was only on April 25, 2024, when the matter first came before Hon. M.A. Twalib, SRM, that the court decided to proceed with the hearing. Regarding the issue of the Separation Agreement, she contended that it was not proved before the court and no document was ever tendered to prove this. Hence, these are statements from the bar as they are not even reflected in the Proceedings. Rejoining on the second ground of appeal, the Appellant reiterated her submissions in chief that the Appellant's testimony was not taken under oath, as can be observed from pages 6 to 10 of the Trial Court Proceedings. The Proceedings clearly show that the Appellant was not sworn in, which is evident from the record. She submitted that there are legal implications of failing to take a witness statement under oath. According to Section 4 of the Oaths and Statutory Declarations Act, Cap 34 any witness in judicial proceedings must give evidence under oath or affirmation. If this procedure is not followed, the testimony may be considered inadmissible, affecting the outcome of the case. She referred 9 the court to the reported case of Rashid Nkungu v. Ally Mohammed (1984 TLR 46) where the court held that "failure to administer an oath to a witness before taking their testimony renders the evidence inadmissible!'. Hence, the judgment highlighted that the oath is a fundamental requirement to ensure the credibility and reliability of the witness's testimony. In the case of the Republic v. Mohamed Said Matula (1995 TLR 3) the court stated that any testimony given without an oath or affirmation is not legally valid and cannot be relied upon to make judicial decision. Additionally, the Tanzania Evidence Act outlines the necessity for witnesses to testify under oath to ensure the credibility and reliability of their statement. With regard to the issue of framing issues prior to hearing, the Appellant submitted that she has taken note that the counsel for the Respondent has not addressed the issue. That no issues were framed and the parties just proceeded not knowing what issues are to be determined before the court. Hence, she argued that this aspect is not contested. As such, It was an error for the court to proceed without framing issues and this was also contrary to its own order of 13th October 2023. Regarding the issue of the testimony of the Appellant not being taken under oath, the Appellant submitted that the Counsel for the Respondent has failed to show the page of the Proceedings of the Trial Court proving that the testimony of the Appellant was taken under oath. Hence, based on the above it is tier humble submission that the trial court was biased, abused its judicial discretion and consequently erred in law in handling the trial. In response to ground no. 3, it is was the Appellant's submissions that the Advocate for the Respondent has failed to understand this ground. The Appellant has never claimed that she had other witnesses. It was her assertion that not all that had been testified before the court was recorded by the trial Court. Lastly, with regards to the issue of the Certificate, she argued that this was not addressed in the Appellants submissions in chief. In conclusion, on the strength of her submissions in chief and the rejoinder, she prayed for court to find merit in this appeal and allow it with costs. Having heard the rival submissions of the parties, the broad question to be resolved is whether the appeal has merit. Before I dwell into the merits of the appeal, I have noted that the Respondent put forth an observation regarding the Appellant filing the submissions in court in her own capacity while she was being represented by an Advocate. The Appellant disputed these arguments in her rejoinder, emphasizing that a party to the case can decide to file her submissions through the legal representative or in her own capacity. This issue is not going to detain me for along time. I must point out from the outset that I agree with the position expressed by the Appellant. After all the learned counsel for the Respondent has not stated how he has been prejudiced by the Appellant filing her own submissions in court. Those are internal arrangements between the Appellant and her Advocate, which this court cannot interfere, since it is not privy to their contract. Back to the case at hand, in dealing with this appeal the court is alive to the fact that as the first appellate court it can correct the judgement of the lower court upon visiting the trial court record and find that that there are traces of non-compliance or miscarriage of justice. See the case of Amrattal D.M Zanzibar Silk Store vs A. M Jariwala T/a Zanzibar hotel 1980 TLR 31 and the case of Zuberi Bakari Mwichikitu vs Selemani Bakari Mwichikitu PC Civil Appeal ho. 913531/2023. Secondly, the first appellate court can dispose the appeal by way of dealing with all the grounds of appeal or one ground alone as long as all essential issues are addressed. See the case of Mwajuma Bakari vs Julita Senseni Civil Appeal no. 71/2022 Page 8. Thus, in determining the grounds of appeal, I will begin with ground No. 2 which is to the effect that the trial court was biased, abused its judicial discretion and erred in law in handling the trial. In this regard I have taken note of the fact that, in addressing this ground, the Appellant pointed out three issues as follows: one, the trial court failed to record the Appellant's request for adjournment and only recorded the Respondent's matters. Two, the Appellant's testimony was not taken under oath compared to the testimony given by the Respondent and finally, no framing of issues was done by the court during hearing and that it was done at the judgement stage. In my analysis I will focus on the second and third sub issues raised by the Appellant and will begin with the issue relating to the Appellant's testimony not taken under oath; The Appellant has stated that her testimony was not .taken under oath and referred the court to page 6 and 10 of the judgement indicating that the Respondents evidence was, on the contrary, taken under oath. I have observed that, while addressing the court on this point or disputing it, the learned counsel for the Respondent in his submissions, did not refer the court to the relevant pages of proceedings. I have perused the lower court records and observed that indeed on page 6 of the proceedings. The Appellant's testimony was taken and recorded under oath as follows: Court: Prosecution case opens: - PW1: Emmanuel Godwin Mrema, 41, Mchaga, Engineer Goba, Christian, swear and states as follows: I have also gone through page 10 of the proceedings and observed that the Appellant's evidence was not recorded on oath as follows: - Court: Defence case opens DW1: Pamela John Mbuya vs Mpare Auditor Mbezi Christian states as follows: Based on the cited record of proceedings, no rocket science is needed to affirm the feet that the submissions by the Appellant are correct. In this regard I agree with the Appellant that; section 4 of the Oath and Statutory Declarations Act Cap 34 requires witnesses to give evidence under oath or affirmation and if this procedure is not followed the testimony may be considered inadmissible, affecting also the outcome of the case. Time without number the court has emphasized on this position. See case of Rashid Nkungu vs Ally Mohamed and Republic vs Mohamed Mafula (supra) cited by the Appellant which I fully subscribe to. See also the case of Attu J Myna vs CFA Motors TZ Ltd Civil Appeal No 269 of 2021 CAT, DSM where the court held that: It is now clear that the law makes it mandatory for the witness giving evidence in court to do so under oath. It follows therefore that the omission by the witness to give oath before giving evidence in this case is fatal and it vitiates the proceedings. Fortunately, this is not a new territory, as the court has discussed in its various decisions.... The court in this cited case, while quashing the proceedings and setting aside the award of the CMA as well as proceedings and Judgement of the High Court which upheld the award, ordered for the matter to be remitted back to the CMA for the dispute to be heard denovo before another Arbitrator. Furthermore, this case was cited with approval by Hon. Mnyukwa J in the case of Hazelina Wilbadi Mrema vs Levi Kahabi Lupondiye Civl Appeal no. 22 of 2023, where the court emphasized on the effect of the 14 testimony taken without oath, that is failure to take oath vitiates the trial court proceedings. It held and I quote: Now what is the effect of omitting to record the respondent evidence without taking oath, my mind is settled that the said anomaly vitiates the entire proceedings of the trial court. I say so because the respondent was the sole witness who testified on the petition for divorce and convinced the court to dissolve the marriage and grants the decree of divorce after weighing out the Appellant's evidence. If the evidence of the Respondent is as good as no evidence in the eyes of the law, it means there is no evidence that can support the petition. Consequently, in the exercise of the powers conferred in this court, I hereby quash the proceedings of the trial court and set aside the Judgement and Decree. I further order the matter to be remitted back to the trial court for the matrimonial dispute to be heard de novo before another magistrate.... It is very clear from the record that the evidence provided by the Appellant before the trial court was not administered in accordance with the requirements stated under the Oath and Statutory Declarations Act, hence the omission was_ fetal and vitiated the entire proceedings the trial court. Thus, the trial court, was not supposed to rely on it to make its judicial decision. Regarding the second subpoint relating to the trial court not framing issues, I have revisited the proceedings of the trial court and observed that, the trial case changed between different hands of the trial Magistrates, the case having commenced with Hon, Mwaisaka SRM, then L.B. Mwapemela SRM and lastly Hon, Mwanakombo Twalibu. I have noted that, on the 13tt! of October 2023 Hon. Mwaisaka before withdrawing or recursing himself from the matter, gave an order for hearing and framing of issues to be done on 16/11/2023, however on 16/11/2023 he recursed himself due to the fact that the parties are his close friends and remitted the file back to DRM I/C for reassignment on 20/11/2023. Then the parties appeared before Hon. L. B. Mwapamela, SRM where he ordered for the matter to be fixed for mention and on 14/2/2024 parties, were informed that he had been transferred. On 22/3/2024, the matter was reassigned by Hon. Msafiri SRM to Hon. Twalib SRM whereby on 25/4/2024 Hon. Twalib took over the matter and stated that she would proceed with it. The record of proceedings appear as follows: - Court: The matter is assigned to me I will proceed with it. Raphael David The matter is for hearing we are ready to proceed. Court: Prosecution case opens. PW1: Emmanuel Godwin Mrema, 41, Mchaga, Engineer, Goba, Christian swears and states as follows: The Respondent is my wife............(then he continued with his testimony) From the record of proceedings, it is clear that the trial court did not frame t issues before the trial began or adduction of evidence by the parties contrary to the order of Hon. Mwaisaka SRM given on 13th October 2023. I thus agree with the Appellant that the issues only appear on page 2 of the judgement but were never framed by the court when the trial commenced and parties were never informed about framing of issues and none of them reminded the court about it. The importance of framing issues cannot be emphasized. The court in a countless occasion has stated that its omission is fatal especially when it occasions a miscarriage of justice. This position has been stated in a plethora of authorities as its omission prejudices the right of the parties. To say the least, the Appellant was prejudiced in the case before the trial court. Further, Parties when giving evidence are considered to prove or disapprove some issues forming part/ basis of the trial court decision. It is not clear from the proceedings what was being approved or disproved. Further, failure to frame issues vitiates the right to be heard as it affects the quality of the trial and evidence as it happened in this case. For the reasons aforesaid, I find that the omission to frame issues of the case vitiated the proceedings of the trial court and the judgement and orders made therefrom since the Judgement states that issues were framed while indeed it is not true. This also affected the quality of the evidence tendered by the Appellant and cross examination aspects of the case as can be seen in the proceedings on page 6-10. Thus, the omission was fatal. In the case of Hawa Juma Hamis vs Rajab Mduda PC CiviL Appea no 4/2020 HCT Iringa the court held among other things that; The court may or may not grant divorce. The court is required to go further and see, whether in the interest of the parties and the family as a whole it is proper to dissolve the marriage and grant divorce. And it is no wonder that one of the issues which features most in the matrimonial proceedings is whether the marriage has been broken down irreparably. Thereafter the issue of the irreparability of the marriage follows. And this,in my settled mind shows that the legislature has imposed a duty upon courts of law to see to it to that marriages should not be easily dissolved. The rationale is not far to seek: the families are the foundation of the nation and that strong families breed strong nations. ...courts of law are required to handle matrimonial disputes with judicial care ...of course it does not mean that they should go to the extent of forcing parties to stay together, not at all.... Considering the importance of the marriage institution, the trial court ought to have framed issues for it to satisfy itself on the issue of divorce and of course guiding parties to adduce evidence in a coherent manner. Having said so, these two sub issues of the second ground of appeal are sufficient to dispose this appeal. I shall not venture or labour on the remaining grounds of appeal. In view thereof, the appeal is allowed, and based on the powers bestowed upon me, I proceed to nullify the proceedings of the trial court and quash and set aside the Judgement, Decree and Orders made therefrom. The matter is hereby remitted to the District Court of Temeke for a retrial before another Magistrate. I further order that the hearing schedule should be prioritized and fastracked. I grant no order for costs since the appeal arises from the matrimonial cause. Order accordingly. Dated at Temeke this 14th day of January 2025 S.D. MWAIPOPO JUDGE 14/01/2025