PC CIVIL APPEAL SAMWEL IKANGALA MPELA

IN THE HIGH COURT OF TANZANIA MUSOMA SUB REGISTRY AT MUSOMA PC CIVIL APPEAL NO. 000023707 OF 2024 REFERENCE NO.202409231000023707 (Arising from decision in Civil Appeal No. 44 of2023 at Bunda District Court) SAMWELIKANGALA MPELA................................................. APPELLANT VERSUS LOYCE MIRUMBE NYAMWASHA...................................... RESPONDENT JUDGMENT l5d> & 20u> Novenrlber, 2024 M, L, KOMBA. J.: Marriage means the voluntary union of a man and a woman, intended to last for their joint lives. This is provided under section 9 of the Law of Marriages Act, Cap 29 R.E 2019. When parties failed to officiate marriage as per section 25 of Cap 29, there is a way under section 160 that; 16O.-(l) Where it is proved that a man and woman have lived together for two years or more, in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duty married.' Page 1 of 8 Knowing that position, above named appellant institutes Matrimonial Cause No. 54 of 2019 at Bunda Urban Primary Court claiming recognition of their union which subsisted for thirty two years (32). The trial court established presumption of Marriage among the parties at page 10 of the judgment that; 'Kwa maelezo hayo, hakuna shaka kama mdai na mdaiwa wameishi au wame-ambuliwa kuishi kama mke ma mme kwa muda mrefu' After long analysis of evidence and established position of the law and decision, the trial Magistrate proceeded to recognize debatable presumption but the decision was silent on matrimonial properties. The appellant filed Civil Case No. 238 of 2019 at the same Court, Bunda Urban Primary Court asking for distribution of Matrimonial property. He mentioned only one property which is 9 rooms house situated at Nyamakokoto at Block 596 Block "H". After full trial of the matter, Magistrate found appellant failed to prove contribution toward acquisition of the said property and rule that the said house belongs to respondent. Unsatisfied by that decision, appellant appealed to Bunda District Court, Civil Appeal No. 06 of 2020. The appellate court decided as follows; Page 2 of 8 '...As the issue whether there were (sic) valid marriage between parties were already determined in Matrimonial Cause No, 54 of 2019, it was right time for parties to refer this dispute to District Land and Housing Tribunal for Musoma which formerly failed to determine the issue of ownership of the house before status of the marriage between the parties.....Moreover the trial Magistrate improperly invoked section 123 of the Evidence Act, Cap 6 inapplicable in Primary Courts. It is my opinion that trial court had no Jurisdiction to entertain the matter. I therefore quash all trial court proceedings and set aside order(s) made thereto. Being the case even this appeal has been fried in wrong court with no competent jurisdiction to determine it on merits. The appellant if he so wishes may file his claim to the district land and Housing Tribunal for Musoma to decide upon a dispute over a house situated at Plot 596 Block "H" Nyamakokoto area. Accordingly, I dismiss this appeal with no order as to costs.' Obediently, while searching for justice, appellant herein filed a Land Application No. 147 of 2021 where the Tribunal on 20/12/2021 make the following order; 'Madai haya yanaonekana ni madai ya kindoa hivyo Baraza hili Hnayaondoa kwa kukosa mamiaka. Wadaawa wanaeiekezwa wapeieke mgogoro kwenye Mahakama yenye mamiaka.' Page 3 of 8 The order by Chairman of Land Tribunal in Land Case No.147 of 2021 dissatisfied appellant and lodged an appeal to this court (M. L. Komba, J.), Land Appeal No. 10 of 2022 and upon hearing, the appeal was dismissed on the following words; 'Hadi kufikia hapa Mahakama hii inaona Baraza iiiikuwa sahihi kuyaondoa Maomb! Na. 147 ya Mwaka 2021 na rufaa hii inatupiiiwa mbaii. Ikiwa Mkata rufaa anaona bado madai kuhusu nyumba anashauriwa kurudi katika Mahakama ya mwanzo Hiyotamka dhana ya ndoa Hi kuweza kugawanya maii ambazo ziiipatikana wakati mkata rufaa na mjibu rufaa wakiishi pamoja.' Tirelessly, appellant went back to Bunda Urban Primary Court on 09/08/2023 and filed Civil Case No. 134 of 2023 claiming for distribution of Matrimonial Property. Basing under Rule 6 of the Magistrate Courts (Rules of Evidence in Primary Court) Regulations decided as follows; 'Madai ya mdai yametupiiiwa mbaii kwa kukosa vigezo vya kisheria kuhusiana na kuwasiiishwa kwake mahakamani hapa, kwani tayari madai haya yameshatoiewa uamuzi na mahakama yenye mamiaka kamiii (res Judicata).' It is appellant again who appeal to Bunda District Court challenging res judicata as pronounced by the trial court in Civil Case No. 134 of 2023. Appeal was registered as Civil Appeal No. 44 of 2023. With all efforts the Page 4 of 8 appeal was dismissed with costs. In its judgment, the first appellate court re iterate part of its previous decision in Civil Appeal No. 06 of 2020 that; 'The appellant If he so wishes may file his claim to the district land and Housing Tribunal for Musoma to decide upon a dispute over a house situated at Plot596Block "H" Nyamakokoto area.' As said, he proceeded to dismiss the appeal while wondering why appellant did not file fresh matter to Land tribunal as advised. That decision trigger this appeal, appellant this time is challenging res-judicata as pronounced in two lower courts. He appeared without representation and asked where is res-judicata while this court ordered him to address the issue of matrimonial property to the court which pronounced presumption of marriage. In that summary he was ready for judgment. Respondent in this appeal hired Ms. Suzana Jacob Gibayi, an Advocate to represent her in the matter. Ms. Suzan informed this court that she has read ail judgments of all courts concerning this matter and had short submission while supporting grounds of appeal that there is no res-judicata because Civil Case No. 06 of 2020 quashed decision of the Primary Court in Civil Case No. 238 of 2019 about distribution of matrimonial property and Page 5 of8 therefore she pose that, there was no res-judicata. What was the ground of appeal filed by the appellant, let us have a look; 1. That, appellate District Court errored both in law and fact in confirming decision of Bunda Urban Primary Court on ground that it was res-judicata against Civil Case No. 238 of 2019 of Bunda Urban Primary Court while in fact decision in that case was on 29/07/2020 quashed by Bunda District Court in Civil Appeal No. 06 of2020. Being aware of that ground of appeal, counsel went on submitting that basing of decision in Civil Appeal No. 06 of 2020 in which Civil Case No 238 of 2019 was nullified, she prayed under section 44 (1) (b) of the Magistrate Courts Act, Cap 11 R.E 2019 this court to make revision on decision of the Primary Court in Civil Case No. 134 of 2023 and resultant Civil Appeal No. 44 of 2023 of Bunda District Court to find if there was res-judicata and decide parties to return to Primary Court for hearing case No. 134 of 2023. In appeal, the duty of appellate court is to analyse grounds of appeal as filed by appellant, this being the second appeal, the principle is that, court should very sparingly depart from concurrent findings of fact by the trial and first appellate court. Only in exceptional circumstances, that any interference may be warranted and it is when it is clearly shown that there Page 6 of 8 was misapprehension of the evidence, miscarriage of justice or violation of some principles of law or procedure by the courts below. See Sokolo Richard vs Republic (Criminal Appeal No. 478 of 2020) [2024] TZCA 1109 (15 November 2024) and Joseph Safari Massay vs Republic, Criminal Appeal No. 125 of 2012. Having that in mind, I find the only thing needed to be done by this court is to determine whether there as res-judicata in Civil Case No. 134 of 2023. It is In record that as submitted by respondent that Civil Appeal No. 06 of 2020 Bunda District Court nullified the proceedings in Civil Case No 238 of 2019 and set aside its orders. This case was filed by appellant requesting for division of Matrimonial property. If its orders were set aside, then there are no proceedings nor order with regard to Matrimonial property of parties herein. Further, the appellant is claiming for distribution of matrimonial property, that can be done by normal courts vested with power to determine matrimonial cases and not otherwise as the issue of status of marriage was settled. There is no doubt that in Matrimonial Cause No. 54 of 2019 at Bunda Urban Primary Court established presumption of marriage and there is no doubt that Civil Case No. 238 of 2019 was filed. It was then nullified Page 7 of 8 leaving the position that no suit about matrimonial property concerning parties herein as per law. Through the powers bestows to this court under section 44(1) (b) of CAP 11, I hereby revise decision in Civil Case No. 134 of 2023 of Bunda Urban Primary Court and its appeal in Civil Appeal No. 44 of 2023 Bunda District Court. I proceed to order Civil Case No. 134 of 2023 of Bunda Urban Primary Court to start afresh and be heard to its merit so that the issue of matrimonial properties of parties herein can be finalized. Basing on the nature of the matter, I order no costs. DATED at MUSOMA this 20th day of November, 2024. M. L. KO MBA JUDGE Page 8 of 8