PC Civil Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 5525 OF 2025 {Arising from Matrimonial Appeal No. 48 of2025 from District Court of Masasi at Masasi and Originating from Lisekese Primary Court on Matrimonial Case No. 42 of 2024) SAID SAID MTENDA................................................................APPELLANT VERSUS KURUTHUMU BURHANI LIKAPA............................................. RESPONDENT JUDGMENT 27h March & 4h April, 2025 MPAZE, J.: This matter came before me for hearing of the appeal on the 27th February, 2025. Prior to proceeding with the hearing, I noted that the impugned judgment of the first appellate court was not proper. Specifically, the following issues were identified; 1. Failure to address the grounds of appeal raised by the appellant: The first appellate court did not adequately consider the grounds of appeal raised by the appellant. 1 2. Lack of analysis of submissions: The judgment lacked a clear analysis of the submissions presented by both parties. 3. Introduction of an issue regarding jurisdiction over electronic evidence: The judgment introduced an issue concerning the jurisdiction to handle electronic evidence, which was neither raised by the parties nor consulted upon. Given these flaws, I invited the parties to address the matter. The appellant, in his submission, expressed that the judgment was improper, as none of the grounds of appeal he submitted were considered. He further argued that even the submissions made before the first appellate court were disregarded. Additionally, he pointed out that the judgment did not cite any legal provisions that led to the conclusions reached, and he concluded that the judgment was not proper. The respondent, being a layperson, indicated that she could not definitively say whether the judgment was proper or not. However, upon reviewing the judgment, she also noted that it lacked a summary of the matters discussed in court. Both parties were unable to suggest a way forward at this juncture. In order to fully understand why I decided to invite the parties, it is relevant 2 to display the judgment itself. Here is the judgment of the first appellate court; 'JUDGEMENT This is an appeal arising from the decision of the Primary Court of Liseseke in Matrimonial Cause No. 42 of2024. The appellant, being aggrieved by the decision, preferred this appeal on the following grounds: 1. That, the learned trial magistrate erred in law and fact by dividing matrimonial properties that were not acquired jointly, particularly the house situated in Nangaia. 2. That, the learned trial magistrate erred in law and fact by failing to properly evaluate a loan agreement that contributed to the acquisition of some assets, specifically the house in Mkadadenda, which was dominated by the respondent. 3. That, the learned trial magistrate erred in law and fact by failing to consider that the appellant had a greater contribution than the respondent in acquiring their matrimonial home. 4. That, the learned trial magistrate erred in law and fact by failing to properly evaluate the evidence presented, leading to an erroneous decision. 3 Jurisdiction of the Primary Court on Electronic Evidence: The law is dear that primary courts do not have jurisdiction to admit and evaluate electronic evidence. This position has been affirmed in previous case law, including a decision by the PC CIVIL APPEAL NO 09 OF2023 which held that primary courts are not vested with the mandate to hear matters requiring electronic evidence. In view of this, this court finds that the admission and reliance on electronic evidence by the Primary Court of Liseseke was erroneous and against the established legal principles. Consequently, any decision made based on such evidence is hereby set aside. The main contention in this appeal revolves around the division of matrimonial assets, particularly the house situated in Nangaya. Upon careful consideration of the evidence presented, it is undisputed that: 1. The appellant had acquired a piece of land before the marriage. 2. The respondent contributed to the completion of the house by financing the finishing process. 3. The respondent supported the appellant both financially and through her marital duties. Under matrimonial law principles, contribution to matrimonial assets is not limited to direct financial contributions but also includes non-monetary contributions such as 4 domestic work, companionship, and overall support during the subsistence of the marriage. Taking into account the contributions of both parties, this court finds it fair andjust that the house in Nangaya be divided equally between the appellant and the respondent on a 50/50 basis. Orders of the Court 1. The admission and reliance on electronic evidence by the Primary Court of Liseseke is declared null and void due to lack of jurisdiction. 2. The house in Nangaya shall be divided equally (50/50) between the appellant and the respondent. It is so ordered. Right of appeal explained Dated at MASASI this 14h of February 2025. SGN RMT Upon examining this judgment, I note that it does not address the grounds of appeal properly. In an appeal, the judgment should specifically address each ground of appeal raised by the appellant. The appellate court should explain why a particular ground is meritorious or not and 5 provide clear legal reasoning for its decision. The judgment in question lacks this essential analysis. Further, the first appellate court did not review the decision of the lower court to determine whether it was correct in law and fact. The judgment did not consider the evidence given, nor did it evaluate the legal issues raised. There is no clear explanation regarding the correctness of the lower court's decision, which is a fundamental flaw Moreover, the issue of electronic evidence was raised by the first appellate court suo motto, yet it was not part of the appeal nor addressed by the parties. The court's reliance on this issue without any legal foundation or proper consultation of the parties was an error. The principles of justice dictate that an appeal judgment should involve with the grounds of appeal, evaluate the lower court's decision, and render a reasoned decision. The failure to do so renders the judgment defective. This is consistent with the judgement in Mwajuma Bakari v. Julita Semqeni & Another (Civil Appeal No. 71 of 2022) [2022] TZCA 266 (12 May 2022), where it was held that a judgment which fails to address the evidence and grounds of appeal is defective and must be set aside. Similarly, in Francis Mtawa v. Christina Raja Lipanduka (Civil 6 Appeal No. 15 of 2020) [2022] TZCA 719 (15 November 2022), the court reaffirmed that appellate courts must provide a clear analysis of the issues presented before rendering their judgment, an essential element that is conspicuously lacking in the present case. Another issue I have noted is the order made by the first appellate court after determining that the trial court lacked jurisdiction to admit electronic evidence. Despite this finding, the first appellate court proceeded to declare the said evidence null and void. This order is legally flawed. The correct remedy in such situations is not to declare the evidence null and void but to expunge it from the record. Declaring evidence null and void implies that it never existed in law, which is incorrect. Instead, once an appellate court determines that certain evidence was improperly admitted, it should order its exclusion from consideration and then assess whether the remaining evidence supports the trial court's decision. This principle was affirmed in Tenqeru Flowers Limited v. Dal Forwadinq (T) Limited and Others (Civil Appeal No. 12 of 2011) [2017] TZCA 1142 (20 June 2017), where the Court held that improperly admitted evidence should be expunged from the record while preserving 7 the remainder of the case. Similarly, in A.A.R Insurance T. Ltd vs Beatus Kisusi (Civil Appeal No. 67 of 2015) [2016] TZCA 191 (31 May 2016), the appellate court expunged improperly admitted evidence rather than declaring it null and void. Thus, the first appellate court erred in its approach regarding electronic evidence, as the proper course of action would have been to exclude the evidence from consideration rather than declare it a nullity In light of the deficiencies noted above, I find that the first appellate court's judgment did not meet the required legal standards. I hereby exercise my revisionary powers to set aside the judgment of the first appellate court. The case is remitted to the first appellate court for a fresh composition of judgement. In doing so, the first appellate court is directed to properly address the grounds of appeal, consider the submissions of both parties, and ensure that a reasoned and legally sound judgment is delivered. The issue of jurisdiction concerning electronic evidence should be considered in accordance with the law and the parties' rights. It is so ordered. 8 Dated at Mtwara this 4th April, 2025. paze I. . Judge Court: Thejudc ht is delivered today in the presence of the appellant and respondent. uni M.B. Mpaze Judge 4/4/2025 9