20181213 TZHC Mwanza

~.) IN THE HGH COURT OF TANZANIA ,cf;, MWANZA DISTRICT REGISTRY. AT MWANZA. PC MATRIMONIAL APPEAL NO. 78 OF 2017 (ARISING FROM MATRIMONIAL CAUSE NO 05 OF 2017 AND ORIGINATING FROM MATRIMONIAL CAUSE NO 12 OF 2015) ROBSON GIBSON .................................................... APPELLANT.

VERSUS NORA NASON ■• ■■■ I ■■ •• ■■■■■•■■ ••• ■■■■ ••• ■■■ ••• ■■■ ••• ■• Ill. ■■ •••• ■■■ RESPONDENT. Date of last Order: 03/12/2018 Date of Judgement: 13/12/2018. JUDGEMENT. MAGOIGA, J. The· appellant, ROBSON GIBSON aggrieved by the judgement of the ·" district court of Bukombe in matrimonial appeal no 05 of 2017 has come to this court by way of appeal armed with 7 grounds of appeal faulting the District court findings couched in the following:- 1. That the appellate magistrate erred in law and fact for holding decision of the primary court of denying the appellant's right of legal representation.

2. That the appellate magistrate erred in law and fact for holding. decision of primary court by including the appellant properties in matrimonial assets which were not acquired jointly. 1 3. That the appellate erred in law and in facts for holding decision of primary court by indulging in connecting evidence aiming to help (;;) the respondent.

4. That the appellate erred in law and fact for holding decision of the primary court of frequently threatening, putting in jail the appellant during the proceedings and consequently remanded him in jail.

5. That the appellate magistrate erred in law and fact for holding decision of the primary court of granting an improper applicant by third part.

6. That the appellate magistrate erred in law and fact for holding the decision of the primary court which was unfair and biasness.

7. That the appellate magistrate erred in law and fact for holding the decision of the primary court failure to consider the traditional practice and customs of the parties on custody and maintenance of the child. Th~ facts pertaining to this appeal are straight forward that the appellant and respondent contracted their marriage on 05/04/2005. The couples lived a peaceful matrimonial life till 2011 when unending misunderstandings started and the rest of their marriage was characterized by misunderstandings. In 2015, the respondent petitioned 2 s.-;; ::< for divorce on allegations that the appellant has chased her form their ~),) . · house because of adultery behavior of the respondent at Ushirombo u Primary court, among o1thers, claiming divorce and distribution of the matrimonial properties. The matrimonial dispute was heard in the primary court, then an appeal was preferred in the district and this a second appeal to this court, hence this judgement. When this appeal was called for hearing the appellant appeared in person and was enjoying the legal services of Mr. Siwale Yisambi, learned advocate, from a Geita based legal clinic of Goldbelt Attorneys (Advocates) and was ready for hearing. On the other hand, the respondent appeared in person, unrepresented and was ready for hearing. Mr. Yisambi submitted in support of the appeal that they have preferred 7 ground of appeal and

that he will _argue them -all in the order they appear save for ground number 6 which will be last. On the first ground it was strong submission of Mr. Siyambi that the first appellate court failed to observe that the appellant was denied right to legal representation by trial court against his constitutional right of having legal representation. According to Mr. Siyambi the appellant prayed orally and in writing twice 3 · -~ .~ of having engaged a lawyer and prayed for transfer of the case to district "' ·. · court on 16/2/2016 and 22/2/2016 but all his prayers were not heeded 0jJ nor replied apart from the oral prayer which was rejected out rightly. Mr. Siyambi cited the case of AGNESS SIMBAMBILI GABBA V. DAVID SAMSON GABBA, CIVIL APPEAL NO.26 OF 2008, (CAT) DSM (Unreported) in which it was held that it was highly irregular to deny the appellant legal representation. On the same note, yet, it was the submission of Mr. Siyambi that the appellant was denied right to be heard and to buttress his point he referred this court at pages 18- 19 of the proceedings which according to him the appellant was denied right to be heard and was not heard at all. On this ground Mr. Siyambi prayed that this appeal be allowed by quashing all proceedings of the trial magistrate and that of the district court and order re-trial of this matter before another magistrate with competent jurisdiction

and new set of assessors. Next was- ground number two which the main complaint of the appellant was that the two lower courts erred to include the exclusive properties of the appellant. Mr. Siyambi named the said properties as the house at Shinyanga, Motor Vehicle T. 974 ALW, two motor cycles T. 394 BAB and 4 ·~ ~ T. 703 AUH, 4 mattresses and two televisions all of which were not jointly · · acquired. According to Mr. Siyambi this was against the provisions of section 114 of the Law of Marriage Act, [Cap 29 R.E. 2002]. Mr. Siyambi yet addressed the court on another highly misdirection and irregular conduct of the proceedings that the trial court went to search the home of the appellant and took into its custody the documents of ownership of the appellant and it used them as exhibits in court and marked them as exhibits RN2 and RN3 contrary to procedures of receiving evidence and used them as the basis of its decision. In the circumstances, Mr. Siyambi prayed that the trial court be ordered to return all documents taken in its custody un-procedurally. He concluded by praying this court to allow the appeal based on two grounds argued with costs and said that this two grounds suffices to dispose of this appeal and prayed not to venture into other factual grounds. On the other hand, the respondent opposed this appeal by submitting that the appellant at all material time was

employing delaying tactics on this matter and it was .himself who denied himself right to be heard by asking all resident trial primary court magistrates at Bukombe primary Court to disqualify from the conduct of this cause. As to why the court 5 /1 - ~ acted the way it did, the respondent submitted it was because the · conduct of the appellant was disturbing and went to the extent of contempt of court. However, the respondent admitted that it is true the court visited their house and it took into its custody some of the documents and the said documents were used to do justice to this case at the trial and form part of the record as exhibits RN2 and RN3. It was the submission of the respondent that she opposes the whole submission of the counsel for appellant and submitted that the two trial court decisions were right and justice vyas done to me. She c~ncluded by praying that this appeal be dismissed with costs. In rejoinder, Mr. Siyambi submitted that there was no order to produce the documents but bitterly complained that the act of the trial court to go and search the house of the ap.pellant and take into its custody of the documents show the trial magistrate was highly biased. It was the rejoinder of the counsel for appellant that all these conducts were justifying the appellant to reject the trial magistrate because this was not expected of him to do. To conclude his

submission, the counsel prayed for this court to allow this appeal with costs. 6 11) ~ This marked the end of the hearing of this appeal. The task of this court now is to determine the merits or otherwise of this appeal. Let me say and point out that I have keenly and anxiously traversed the entire record of the proceedings of the trial court, its judgement and the record of appeal in the district court and the oral submissions by parties in this appeal and come to conclusion that this appeal is merited and it deserves the intervention of this court to maintain propriety and order in court proceedings. My reasons for taking this stance are not far to fetch. One, this is a matrimonial dispute and before the courts can have powers to hear and determined the matrimonial disputed same as a general rule has to undergo through Marriage Reconciliatory Board as provided for under section 101 of the Law of Marriage Act, [Cap 29 R.E 2002]. Save for exceptions provided for under that provision, all other marriage disputes have to undergo that mandatory procedures and the Marriage Reconciliatory Board have legal quty to mediate the marriage based on several facts. The Board is not an adjudicating board but its main objective is to mediate the couples. Upon failure of mediation the couples, are given a certificate in prescribed form stating the reason . for failure to mediate the marriage

and it is the certificate that now confers the court with competent jurisdiction to hear 7 rt, the matter competently and determine it. In the instant appeal my · perusal of the record no such known legally certificate was issued but ~ what I gathered is the adjudicating decision of the board purported to be a certificate but in actual sense it was not. It my considered opinion the board has no adjudicating jurisdiction when dealing with marriage dispute save mediation. Now in mediation we don't expect to see decision of the board but just a certificate in prescribed form. The certificate has to be in a prescribed and is form number 3 as follows. FORM3

MARRIAGE CONCILIATION BOARD OF (state full designation of Board) WHEREAS a dispute exists between ............................................... (state name of husband) and .................................................. (state name of wife) who are lawfully married and such dispute was referred to this Board by ........... ~ .......................................... (name of the person who referred the dispute). THIS IS TO CERTIFY that this Board has failed to reconcile the parties and that in the opinion of the Board- ■■ S ■■■ ■■■■ ■■■ ■■ ■■■■ ■ ■■■ ■■ ■■■■■ ■■■■■■■ ■■■■·•··••••■■■■ I ■ ■■ I' ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ II ■■■■■■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■■■■■■■ Iii ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ II ■■■■■■■■■■■■■■■■ II ■■■■■■■■.■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ (any recomme.ndation which the Board may wish to make) Signed ....................... .-..................................... . Chairma~/Vice-Chairman/Member ......................................................... Dated this ......................... day of ········••11••············ 20....... . 8 In this matter the board wrote something not envisaged by law and it is on that note I hereby hold that ther~ was no prescribed certificate known v in law issued by the Marriage Reconciliatory Board before the institution of this matter and hence I hold that the matter was

prematurely entertained by the both lowers courts as rightly held in the case of SHILLO MZEE V. FATUMA MOHAMED [1984] TLR 112 that:- "in the absence of a certificate from conciliatory board a petition for divorce becomes premature and incompetent" Two, Mr. Siyambi learned counsel for appellant has cried and bitterly faulted both lower courts, in particular, the district court for failure to observe that the appellant was both denied legal right of representation and right to be heard by the trial court and cited the case of AGNESS SIMBAMBILI GABBA V. DANIEL SAMSON GABBA (supra) to buttress this point. On the other hand, the respondent has dismissed these allegations as unmerited as the appellant was always employing delaying tactics in the· conducting of this matter in the lower trial court. She equally invited to see that it was the appellant who contributed on the way the court acted and denied himself right to be heard. The respondent never replied as to the legal representation as argued by the counsel for appellant. It is 9 iJ on record the appellant orally prayed to have a legal representation and twice thro.ugh RAFIKI ATTORNEYS AND CO. ADVOCATES wrote the District Resident Magistrate to have the proceedings be transferred to district court. Unfortunately, on the part of the appellant and on the district court these two letters were not replied by the District Court

nor was any direction given. The district court of Bukombe, to my considered opinion was supposed to reply to this letters or give proper directions as required by the law. Failure to reply to this official letters was not warranted by whatever reason that can be given now. This to my considered opinion contributed the denial of the appellant to have legal representation. The appellant or any other litigant is entitled to legal representation irrespective of where the case is opened and the parliament in its wisdom even when the advocates are barred to primary court or for any other reason as set out but under provisions of section 4 7 of the Magistrate Courts Act, [Cap 11 R.E 2002] it affords parties of this basic right. Mr. Siyambi cited the case of GABBA (supra) in which it wa~ held that it is highly irregular .. ..... knowing that the applicant had engaged the services of an advocate who was barred from appearing in primary court. In effect she denied the appel_lant her right to legal representation. 10 - ·, Guided by the above decision of the Court of Appeal I hereby hold that in -~ · the instant appeal it was equally wrong and irregular for both lower v courts for failure to recognize this basic right of the appellant to the proceedings that were highly contentious. More so, the way proceedings were conducted in primary court any serious and sensitive district court had

reasonable cause to believe that there was failure of justice in the instant appeal, in particular, when the appellant was illegally ordered to be remanded for 14 days but sadly the district court fell into this unwarranted legal morass. In the case TANZANIA BUNDU SAFARI V. DIRECTOR OF WILDLIFE AND ANOTHER [1996] TLR 246 (HC) it was held that civil contempt does not require immediate imprisonment, for it also punishable by imposition of fine. In another case of MASUMBUKO RASHID V REPUBLIC [1986] TLR 212 it was held that when a court takes cognizance of the offence_ of contempt of court, it is essentially that the court should frame and record. the substance of the charge, read such a charge to the accused who should then be called to show cause why he should not be convicted on the charge; and the accused should be given a fair opportunity to reply. Besides, the record of the 11 court should contain an adequate note of the accused person's reply, if any, as well as the court decision. In the instant appeal the above guidance was not done at all but the record is falling short of that and therefore making the orders not maintainable. Three, the conduct of the second trial magistrate after the first one was successful recused calls a lot to be desired in this appeal. It is clear upon perusal of the trial court record, that as correctly argued by counsel for appellant and admitted

by the respondent that the trial court went into the house of the parties in search of the documents/evidence. Which document were un-procedurally and illegally obtained and were marked as Exhibits "RN.2 and RN. 3 and were under the custody of the court. This is a conduct which cannot be condoned at any rate for the following reasons: (i.), there was no need of the. court to visit the house of the appellant in matrimonial proceedings for whatever reasons that may be explained by the trial court. In the· case of NIZAR M.H. LADAK V. GULAMALI FAZAL JANMOHAMED [1980] TLR 29. (CAT) it was held in strong terms that it is only in exceptional circumstances that a court should · inspect a locus quo, as by doing so, a court my 12 unconsciously take a role of a witness rather than an adjudicator. In the instant appeal the trial magistrate is on record turned himself into police, the prosecutor and adjudicator at the same time. Indeed, with respect is unfortunate to him to conduct himself the way he conducted in this matter. (ii) the trial court judgement is written in a language that purported to show the appellant defended himself while the proceedings are clear that the appellant when asked the trial magistrate to recuse himself and the trial magistrate denied: that Rrayer, the . - appellant - - . ~ refused to enter ~ defense. Now the argument that the appellant denied the

properties which denial necessitated the trial court to move to the house of the litigants is not supported by the record at all. (iii) the trial court admitting documentary evidence which the court itself searched in the house of litigants without following laid down legal procedures was highly irregular and unwarranted in the circumstances. This conduct of the trial magistrate was wrong, unwarranted and irregular and I condemn this conduct not to repeat again. The trial magistrate in my opinion turned himself into a police in this matter and made 13 unwarranted search without search warrant and at the same time was trying the case and admitting evidence on its own. This was highly . -~ ~ irregular and the district appellate court failure to see this blatant un- procedural and unwarranted procedure with respect was unfortunate on its part. In strong terms I hold that all the said documents searched by the trial court are hereby expunged from the court record and this court order the trial magistrate Hon. Mchunguzi, Rm, to personally return them with immediate effect to the appellant in writing. Not only that but he is directed to follow the laid down procedure for admission of evidence and not to be moved by the parties' whims and control the proceedings without being swayed as demonstrated in ttiis appeal. · Closely related to the above mischief as noted in the proceedings,

apart from the trial court findings that the house in Shinyanga was acquired prior the marriage of the parties but still it was distributed as _matrimonial property among the parties. The counsel for appellant submitted that this was. wrong under the provisions of section 114 of the Law of Marriage Act, [Cap 29 R.E. 2002]. It is basically on the basis of the above reasons and shortcomings under the powers vested in me under section 44 (1) (b) of the Magistrate Court 14 j Act, [Cap 11 R.E 2002] that I allow this appeal as aforesaid and declared the proceedings and judgement of the trial court nullity by quashing them and set them aside and all the orders given thereon are equally set aside, including illegal order of conviction and sentence meted out against the appellant in civil case no 12 of 2015 on 05/04/2016 which clearly shows the trial magistrate was not justified by the record and reasons to have acted the way he did as against the appellant. Equally, the district appellate court proceedings, judgement and orders thereon stemming from nullity proceedings are hereby quashed and set aside for that reasons. The parties are advised to go back and start afresh their matrimonial dispute from the Marriage Conciliatory Board and then to court if they are wishing to pursue their intention to have their marriage dissolved and it is from that fresh proceedings that division of

matrimonial properties will be taken care of. In the event I order the trial magistrate Hon. Mchunguzi, Rm personally who retained and put in his custody the personal original documents of the appellant to immediately return them in writing to the appellant. The parties herein pressed for costs depending on the outcome of the case on their part. I find that this being a matrimonial matter and given 15 the nature of the orders given, my wisdom calls to order that each party " to bear his/her own costs . ., G1 It is so ordered. Dated at Mwanza this 13th day of December, 2018 _..,,,.__ ..,--, __,,,__~-~~~~ JUDGE. --------- 13/12/2018. 16