selemani mwaipungu vs vumilia mwaipungu 1995 tzhc 707 2 february 1995

in THE HIGH COJRT CP T^N2AITIA yn TifrR hS S/y.Affi CIVIL i\PP3/JL NO. 70 CP 1994 saLsa&asi Mw^tpoiracj ................... . . . . ^ k eilabt V35ESIB VTlMTI.Tfl M K C T noa ............................... «,e s s p o ie e iit J U J) G ID M E IT T o Tunilia E a ji also farnorly kncam a3 ^waipungu. had petitioned fo r a divorco at Kisutu D istrict Courts Iho mattor was hoard boforo Lyamuya » on 23/ l l /93 whore slio nado tlio order fo r tho nattor to bo referred bade to tho Marriage Conciliation Beard under £ • 119 (2) of Law of Marriago Act* Bio t r i a l Ha^.w ux'ato adjourned 'this ca^o fo r a poriod of "throe months# Then on 2/5/94 tho petitioner appoarod boforo tho court, with. Mrs Lyanuya - PRM prosidingo There is nothing on rocord to indicato tho prcsonco or othorwiso of the respondent* In fa c t tho hearing procoodod as i f i t was an 0spar to Lj^rinr.-. r"nio pfcocct -procoodings on that day can bo jr- ~ " w’’ und-Xv 2/5/94 Cor am* A»T.Co lyanuya - KIM Petitioner - Prosont and statos that tlio roconciliation board has failod its duty vido this lottor and tho respondent has romarriod and cares less for no COURT; I Lcvo notod w ith die app o in tn o n t how tho M-xriago Hoc o n c ilia tio n Board P?sunfior3i:oc5, n r crc5-:-* cf 2^ .11/ rj-\ r ■■So 110 (2 ) of Act 5/71 C arriage Act* '-tho Respondent has rom arriod and cares loiJa f o r tho p o titio n e r ORDER 1 lo In tho above circuns tancos I doclaro the I^ariiego ha3 broken down boyond ropair hence I grant a divorce. 2* Hiou^i -tho value of tho matrimonial aPsots is not known Iiio sano to be divided equally •>•»« < j 3« Bio rospondont to nauntain tho potitioner ® 10;000/= por month. WeOsf. Fobruary> 1992 whon -ttio Rospondont abandonned Iiio petitioner 4® The rospondont to notify Sgd« A«T»C# Lyamuya PRM 2/ 5 /1934 ” • ••2 - 2 - IbXlowing that decision, the respondent Selemani Mwaipungu through his advocate Mr* Mwakasungule filed a chamber summons under Order 39 Rules 5 (l) (3) and (4) for orders to stay execution pending hearing of application inter parties. The affidavit of the respondent was road out in support of the application. The thrust of this application was that the Pooling of Lyamuya - PEM was errenous as the matter was hoard esparto and he was not given a chanco to reply to potitionors submission when the matter was heard on 2/5/94* Mr* Mwalcasungulo therefore filed the application for extension of time within which to file an application to sot a side an esparto order and docreo dated 2nd Ma, 1994* This application was rojoctod by Mrs* Kimaro - FRM on 12/8/94 honco this appeal* Mr. Mwalcasungulo attacked the Piuling of 12/0/94 several graounds* Whon summarised their effect is to say that the respondent was not served to attond court on that day and whatever was said by the petitioner then oould not bo replied to and what the petitioner said greatly influenced tho decision of tho trial Magistrate. Ilonco Mr. Mwalcasungulo prayed for the sotting a side of tho Ruling of tho trial court of 2/5/94 and tho matter be hoax’d dcnovo in tho prcsonco of his cliont. I have read tho court proceedings of 2/5/94 and note with dissatesfaction that on record tho rospondont docs not appear to have boon served. Jndcod whon tho judgment was delivered on 23/ll/93 both patios wcro prcsont. The matter was then adjourned for a period of throe months to allow parties to bo reconciled if at ail* When the hoaring resumed on 2/5/94 it was cxpcctcd that both parties would present themselves to toll tho court what has transpired in that period. It was not to bo, 0 . .... ’ nly tho potitionor appeared and gave her evidence# It is not on record whether the respondent w?.r$ served and if so why ho did not put an appoaranco* I cannot but agroo with learned counsel that the trial court proceeded to grant the divorco without according the respondent an oportenity of being heard* Similarly tho Ruling by Mrs* Kimaro - HIM is in my mind rather confused* Sho says in parts- ” this moans that'tho parties h a d ’^o*"report back to the Magistrate after thrco months * **•3 - 3 - What Mrs Lyamuya did can 2/ 5/94 -wa3 only to conclude her judgment dated 24/n/94 ( it should read 23/ll/93 ). I will also add that the order by Mrs, Lyamuya - FEM cannot be said to have been issued Qspaxte* Ike trial wa£ conducted in the presence of both parties, -All were present throughout the trial**# The application by Mr# M^tikaSun^ule is a misconception* It is therefore dismissed tilth costs With much rospoct I wish, to differ the learned Magistrate* In ray view the order by Lyainuya -- PHM on 2/ 5/94 wa£ made esparto as the respondent wa£ not present. Henco he could not have boon present throughout the trial* I wculd therefore allow the appeal and grant the prayers by tho appellant* This mattor bo firuJLisod boforo anoihor Magistrate and oach party to boar own costs. A«G. BUHSSSI JUBGE 2/^1995 Judgment road in presonoo of Applicant- Prosont Eospondont- Prosont. )