Siita Bulaya vs Leya Humo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA SUB – REGISTRY AT SUMBAWANGA PC. CIVIL APPEAL NO. 18336 OF 2024 (Originated from Civil Appeal No. 00000365 of 2024 of Tanganyika District Court which originated from Matrimonial Cause No. 20 of 2023 of Mwese Primary Court) SIITA BULAYA SAMALU.…………………………………………………..APPELLANT VERSUS LEYA MOBA HUMO……………………………………………………….RESPONDENT JUDGMENT MWENEMPAZI, J. This is a second appeal after the appellant herein unsuccessfully appealed against the respondent to the District Court of Tanganyika (first appellate court) in Civil Appeal No. 00000365 of 2024. A brief fact about this matter traces its origin at the Mwese Primary Court where the respondent herein successfully applied for divorce and division of matrimonial properties after the marriage of the two once lovers became irreparably broken. After a full trial, the trial court entered judgement in favour of the respondent herein, dissolving the marriage by way of divorce and ordered the distribution of the matrimonial properties in which there was a 200 acres dry land, the appellant was given 120 acres and the respondent was given 80 acres. There was another land which was measured around 45 acres, the appellant was given 34 acres while the respondent was given 1 11 acres. The division did not end there, the trial court also divided another land which was measured around 6 acres forestry land, in which the appellant was given 4.5 acres and the respondent was given only 1.5 acres. The two ex-weds had also once possessed a herd of cattle in which the trial court also divided the same among them. They were 95 herds of cattle, the trial court ordered that the respondent herein to remain with 48 herds of cattle and the appellant to be given 47 herds of cattle. Lastly, there were four houses, the trial court ordered the two ex-weds each to be given 2 houses. The appellant did not fancy(was not satisfied with) the distribution at all. Out of his eagerness, he unsuccessfully appealed to the District Court of Mpanda (first appellate court) where it was held that there was no any injustice or prejudice which was occasioned to the appellant by the trial court and by considering Section 37 (2) of the Magistrates’ Courts Act Cap 11 R.E. 2019, the appeal at the first appellate court was rendered meritless and it was therefore dismissed with costs. Again, the appellant ran to a higher court in attempts of overturning the decision of the trial court. He therefore knocked the doors of this court with a petition of appeal which consisted of four (4) grounds of appeal as reconstructed hereunder; 2 1. That, the first appellate court erred in law and fact to hold that it was proper for the trial court to dissolve the marriage and issue a divorce decree on the marriage which was based on presumption. 2. That, the first appellate court erred in law by blessing the improper admission of the exhibits before the trial court. 3. That, the trial court erred in law to open a matrimonial cause which consisted of parties different from the attached marriage conciliation certificate whereas in the marriage conciliation certificate, parties were REA NG’OBHA HUMU and SITA BLAYA SAMALU. 4. That, the first appellate court erred in law and fact by its failure to perform its legal duty of re-evaluation of evidence on record to arrive at its own conclusion regarding the division of the matrimonial properties. From the grounds listed above, the appellant then prayed for this court to allow this appeal with costs, that the first appellate court’s orders concerning the division of matrimonial properties be vacated and consequently new division be ordered per the appellant’s submission in the first appellate court, and any other relief that this Court shall deem fit and just to grant. 3 On the date this matter was scheduled for hearing, the appellant was represented by learned Advocate Laurence John while the respondent fended off for herself as she had no legal representation. However, the latter sought leave of this court for the hearing to be conducted by the way of written submissions. Mr. Laurence had no objection to the respondent’s prayer and so was this court, the respondent’s prayer was granted and the filing dates of the submissions was scheduled in which both sides adhered to. The learned counsel started off by submitting for the 1st ground of appeal that, it is the trite law that court cannot grant the divorce on the marriage, which is based on presumption, he referred to the case of Happiness John vs Alamu Ndenganya (Matrimonial Appeal NO. 2858 OF 2024) [2024] TZHC 675 (8 March 2024) (TANZLII) where the court remarked that; “The provisions above signify that when the presumption is rebutted and that upon satisfying the court that one party to a union, whether male or female, has cohabited with the other for a duration exceeding two years, the court is empowered to issue orders akin to those made in response to divorce or separation proceedings among legally married spouses under the provisions 4 of the Marriage Act. It should be noted that a party in such a union is precluded from petitioning for divorce or separation. The reliefs may include maintenance, custody of children or distribution of property jointly acquired during the union. See the case of Harubushi Seif v Amina Rajabu [1986] TLR 221. It follows that unless the presumption of marriage is rebutted, the court cannot grant reliefs as those granted during separation or divorce. Since this matter was filed under the Marriage Act and it was found that there was no marriage between the parties, the court ought to have considered section 160(1) before granting the orders it did. Granting such orders under the Marriage Act in the circumstances of this case is fatal.” He insisted further by citing another case with the same position in Samson Zablon Masija vs Joyce Seleman Kisunda (PC Matrimonial Appeal No. 75 of 2021) [2021] TZHC 7361 (24 November 2021) (TANZLII) where it was held: - “The law is settled that; a presumption of marriage is not in itself a formal marriage. Therefore, it is not capable of being dissolved under section 107 of the LMA. This stance was taken by the Court of Appeal in Hidaya Ally vs Amiri Mlugu, Civil Appeal 5 No. 105 of 2018 (tanzlii). That being the case, the appellant's prayer for divorce was misconceived. As such, I find no reason to fault the first appellate court on that matter.” He then added that, in this case at hand the first appellate court erred in law to bless the findings of trial court which granted divorce decree to the parties at page 11 of the Judgment, the counsel quoted the particular phrase as follows; “....Mahakama inaona kuwa ndoa ya mdai na mdaiwa imevunjika pasipo kurekebishika na hivyo mahakama inatoa talaka kwa wadaawa wa shauri hili” He then stated that, it was erroneous for divorce decree to be issued while the marriage was under presumption mode, he then insisted that this is per the precedents of this Honourable court, and that remedy for this anomaly is to nullify the entire proceedings and orders of the 1st appellate court and those of the trial court per the case of Happiness John (Supra) Submitting on the second ground of appeal, Mr. Laurence stated that, at the trial court there was a serious legal infraction on the admission of the exhibits, which unfortunately were blessed by the first appellate court, he referred The Magistrates Court (Civil Procedure in Primary Courts) Rules G.N NO.310/1964 at Rule 45(1) which states that; 6 “Claimant shall first state his case and produce the evidence in support of it and the defendant shall then state his case and produce evidence in support of it.” He then clarified that, in this case the respondent who was the claimant (at the trial court) testified before the trial court as SM1 from page 3-17 and according to the proceedings her evidence finished without tendering the marriage conciliation certificate, however something strange occurred as the conciliation board certificate was tendered by SM1 again at page 21 of the proceedings of the trial court while she had already closed her evidence and she was removed from oath. Mr. Laurence insisted that the procedure was wrong and not in accordance with the rules of taking evidence in primary courts due to the fact that one witness cannot overlap in the evidence of other witness and be allowed to tender documentary exhibits. Worse enough after the conciliation certificate was admitted as Exhibit KMA1, it was not read-out after it has been cleared for admission per the case Pudensia A. Lugemarila vs Kampuni ya Kukopesha Msirikale (Civil Appeal Case No. 1 oF 2023) [2023] TZHCLD 1204 (24 March 2023) (TANZLII) at page 3 and 4 which held that; 7 “It is trite law that when the exhibit is admitted in evidence, the witness tendering the exhibit is required to read out the contents of the exhibit. The rationale behind this practice is to allow the adverse party to understand the contents of the exhibit and be able to cross-examine the witness over the exhibit. While I understand that the rules governing evidence in primary courts do not carry such requirements, I am of the considered view that reading out the contents of the exhibit is a cardinal principle that ensures a fair trial. In that case, I expunge Exhibit Pl from the records.” In clarification of the cited case, Mr. Laurence stated that, it was held that the requirement to read-out the exhibits equally apply to the primary court so as to ensure fair trial, failure to read the said exhibit it has occasioned miscarriage of justice in the part of the appellant as he failed to understand the contents of the admitted exhibit for the purposes of cross-examination. He then prayed that this court be pleased to expunge the said exhibit from the records. In addition, he proceeded that apart from not being read out, Exhibit KMA 1 and Exhibit KMU 1 were not endorsed per the law so as to qualify as proper exhibits, that the failure to endorse the exhibits is fatal because 8 their authenticity become contravened. He referred the case of A.A.R Insurance T. Ltd vs Beatus Kisusi [2016] T.L.R 1 (CA) which held that; “Once the Exhibit is admitted, if it is in civil proceedings, it must be endorsed the need to endorse is to do away with tampering with admitted documentary exhibit.” The learned counsel for the appellant then submitted for the third ground of appeal that, it was then erroneous for the trial court to treat that the parties were conciliated before the tribunal per Section 101 of The Law of Marriage Act Cap 29 R.E 2019. He again referred this court to the case of Inter-Consult Limited vs Mrs Nora Kassanga & Another [2019] T.L.R 362 (CA) it held that; “The substitution of the appellant’s name from International Engineering Consultancy Services Ltd to Inter Consult Ltd without any specific order of the trial court was an irregularity which was fatal.” He then stated that, in the case at hand the parties who appear in Exhibit KMA 1 are REA NG’OBHA HUMU and SITA BLAYA SAMALU while those who had a dispute before the trial court were SIITA BULAYA SAMALU and LEYA 9 MOBA HUMO who were different parties, such irregularity is fatal and incurable per the case of Catherine Honorati vs CRDB Bank (Civil Appeal No. 314 OF 2019) [2023] TZCA 17985 (15 December 2023)(TANZLII) at page 19 and 20 whereas it was authoritatively held; “In the present appeal, marriage certificate which is the basis of the relation between the appellant and the third respondent has the names of Honorati Biashara John Lyombe, whereas the mortgage deed has the names of Honorati John Kilawe. Obviously, these are two different names. These two names appearing in two different documents, cannot be overridden by the oral account of PW1, PW2 and PW3. We therefore find that the trial court correctly held that Honorati John Kilawe is not the same as Honorati Biashara John Lyombe ” He insisted further that, even the parties mentioned at the conciliation board certificate, it shows that conciliation process didn’t take its full course before the ward tribunal, and also the certificate constituted allegations against the appellant which was fronted by the respondent as if they were true while the Respondent was not given time to counter the allegations. 10 He added that, relevant to this, is the case of Abdallah Hamisi Kiba vs Ashura Masatu (Civil Appeal 465 Of 2020) [2022] TZCA 335 (14 JUNE 2022)(TANZLII) which stated at page 12 and 13 that; “In the instant case, instead of the impugned certificate giving findings of the Board, it enumerates the respondent's allegations against the appellant as if they had been heard and proven to be true. There is no gainsaying that none of these allegations constituted the Board's findings of fact Given the evidence on record as we have reviewed it earlier, we hold without demur that the impugned certificate is invalid for stating falsely that the Board had attempted to reconcile the parties but failed to settle the dispute when the reconciliation effort clearly did not take its full course.” He then stated that, in this instant case the certificate of conciliation is invalid for constituting what has been expressly prohibited by the law, that it is vivid there was no any effort to trace the appellant so that the mediation could be done smoothly at the ward tribunal, he again referred to the case of Cosmas Thadey Mushi vs Consolatha Joseph Chuwa(Civil Appeal No.7 OF 2023) [2023] TZHC 18032 (26 MAY 11 2023)(TANZLII) whereas it was stated at page 12 and 13 quoted hereunder; “l am of the opinion that, the Conciliation board improperly issued the Certificate of failure of Mediation while the appellant was not served with the notice to appear before it. Thus, the trial magistrate erred on failure to take into consideration of the appellant's allegation that he was not summoned to appear before the Reconciliation Board, hence the certificate issued by the Reconciliation board was invalid." He added that, failure to give notice to the appellant to appear at the conciliation process before the ward tribunal has occasioned miscarriage of justice on part of the appellant because he was condemned unheard contrary to the case of Mbeya-Rukwa Auto parts vs Jestina George Mwakyoma [2003] T.L.R 251 (CA). Submitting for the last ground of appeal, Mr. Laurence stated that with due respect, his side is of the view that the 1st appellate court failed to perform its legal duty of evaluation of evidence on record and arrive at its own conclusions per the case of Registered Trustees of Joy in the Harvest vs Hamza K. Sungura (Civil Appeal 149 OF 2017) [2021] TZCA 139 (28 APRIL 2021) (TANZII) whereas it was stated; 12 “On our part, we are in agreement with both learned advocates that it is part of our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision.” He proceeded that, it is the trite law that in civil cases the proof is on balance of probabilities, this is the stance of the law established by the case of Anthony M. Masanga vs Penina Kitira (Mama Mgesi) & Another [2015] T.L.R 46 (CA) which stated that; “It is a common knowledge that in civil proceedings, the party with legal burden bears the evidential burden and the standard in each case is on the balance of probabilities" That, in this case at hand, the respondent (who was the claimant at the trial court) miserably failed to discharge burden of proof put to her by the law by her failure to provide concrete evidence as to the presence of 120 acres of land and presence of 45 acres. That, all these properties were only mentioned by the respondent alone and not the Appellant side. Mr. Laurence proceeded that, in her evidence found on the proceedings the Respondent did nothing to prove the existence of the said properties. 13 It is the appellant’s contention that the acres which were subject to division were only 21 acres of farm which could be apportioned both to the appellant and to the respondent, if the trial court sought to do that. The learned counsel also submitted that the 45 acres of farm which were divided, the appellant testified to find the farm alone before even cohabiting with the respondent, this cannot fall under the matrimonial property so to say hence the first appellate court strayed into error to uphold the division of those acres while they were the sole property of appellant. He added that, there were 2 houses which were present and not 4 as envisaged in the trial court judgment, the same were supposed to be divided to each person (Appellant and Respondent). And, on the issue of cows, Mr. Laurence stated that it is the appellant’s contention that the same were to be divided equally among appellant and respondent both 55 cows. Basing on the strength of the above submission made, it is the learned counsels view that the present appeal is merited and he prays for the same to be allowed. However, he concluded by stating that, due to the anomalies which has been evidenced in trial court records and proceedings, we pray for the 14 proceedings of the trial court and 1st appellate court be quashed, and an order for status quo be maintained, and any interested party be advised to file a proper suit following the governing legal procedures Responding to the submission made by the learned counsel, the respondent submitted that the Appellant and Respondent got married in 1990 at Bariadi District under customary marriage according to Sukuma customs but their marriage was not registered hence presumption of Marriage. She added that on the issue as alleged by the appellant, that the trial Court stated that; "Ndoa ya Mdai na Mdaiwa imevunjika pasipo kurekebishika hivyo mahakama inatoa talaka kwa wadaawa wa shauri hili" That, this statement was a slip of the pen and that it can be cured by the Overriding objective as it was in the case Rehema John Kikoti vs Principal Secretary Ministry of Home Affairs & Others (Misc. Land Application 51 OF 2021) [2021] TZHC 12588 (16 November 2021) pg. 7. The respondent has cited the case of James Rugemalira vs The Republic & Mr. Harbinder Singh Sethi for the argument that there are indeed those defects may be taken to be mere slip of the pen which are curable by invoking the overriding objective principle. The respondent added that, the trial court cited section 99 and section 110(1)(a) of 15 Marriage Act Cap 29 R.E 2019 in order to determine the status of the Marriage between the Appellant and the Respondent, and also under section 110(1) (a) at the conclusion of the hearing of a petition for separation or divorce, the court may- (a) if satisfied that the marriage has broken down and, where the petition is for divorce, that the break down is irreparable, grant a decree of separation or divorce, as the case may be, together with any ancillary relief, the cited provision intend to show that the parties can not continue to live together. Submitting against the second ground of appeal, the respondent stated that, the rules governing evidence in primary court do not carry requirement of reading out content of exhibit before tendering but the whole procedure of hearing case in Primary Court are governed by the Magistrate Courts (Rules of Evidence in Primary Court) Regulation G.N No.22 of 1972 which has provided the procedure and steps to tender exhibit in primary court. She added that, the rule in primary court does not provide the requirement of reading out or endorsement of exhibit due to nature of parties appearing before the Primary courts who require no legal technicality. That, during the tendering of the Exhibit KMA1 and KMU2 the Appellant did not object the admissibility of the said exhibit neither did he cross 16 examine the Respondent on the important fact or issue therefore the submission by the Appellant that the admission of exhibits was improper lacks merits. She proceeded that, it is trite by the law that failure to cross on important part or object on admission of the document tendered before court is equal to acceptance on evidence or exhibit. That, during the tendering of the exhibit KMAI and KMU1 the Appellant did not object the tendering of the said exhibit neither did he cross examine the Respondent on important issue before the Trial Court. Regarding this fact, the respondent referred to the case of Issa Hassan Uki vs Republic (Criminal Appeal No 129 of 20I7 [2018] TZCA 361 (10 May 2018) page 16 and 17, where it was held that; “Likewise, in Damian Ruhele, again relying on the case of CYPRIAN ATHANAS KIBOGOYO (Supra), we underlined: ‘we are aware that there is a useful guidance in law that a person should not cross-examine if he/she cannot examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness evidence.’” 17 She stressed on her point by citing the case of Solomon Thomas Mmari vs Reuben Joshua Mollel (Land Appeal No. 31 of 2020) [2020] TZHC 4537(30 November 2020) pg. 8 and pg. 9 “It is not disputed by either side that the late Thomas Mmari had once sold an acre piece of land to the respondent as evidence by exhibit DI. The second sale is now in dispute. The appellant alleged it was fabricated. The evidence of the trial Tribunal captures that, the appellant enjoyed the legal services of Mr Mushi, Advocate and when the sale agreement (exhibit 02) was about to be tendered by the respondent he was recorded to have no objection.” The respondent then submitted against the third ground that, during the hearing of Matrimonial Cause No. 20 of 2023 at Mwese Primary Court. The Appellant failed to cross-examine the respondent on the said important part which concern the name of REA NG'OBHA HUMU and SITA BLAYA SAMALU and again, failure to cross examine on the said important part it implies that the Appellant was in acceptance of the truth of the witness evidence, also since the Appellant in his evidence did not dispute that he was married to the Respondent in 1990, it is clear that for that period of marriage, the two were husband and wife. 18 The respondent cited the case of Inter-Consult Limited vs Mrs Nora Kassanga & Another [2019] T.LR 362(CA), Catherine Honorati vs CRDB Bank (Civil Appeal No 314 of2019) [2023] TZCA 17985 (15 December 2023) (TANZLII) at page 19 and 20 and Abdallah Hamisi Kiba vs Ashura Masatu (Civil Appeal 465 of 2020) [2022] TZCA 335 (14 JUNE 2022 ) TANZLII) these three cited case are distinguishable since the Appellant during the trial failed to cross examine on the said important matters which implies that he accepted and can not raise this concern now. Submitting against the last ground of appeal, the respondent stated that before instituting the case at Mwese Primary Court, she obliged to the legal requirement as provided by the Law of Marriage Act per section 106 (2) and, the certificate was issued by the Marriage Conciliation Board after the Appellant denied to attend at the Ward Tribunal for conciliation, therefore the trial court properly determined this case after satisfying itself that the procedure was followed, the appellant was not condemned unheard. She proceeded that, she provided the concrete evidence for both jointly acquired properties and by their own efforts and then the Appellant married other wives. That, the bride price of their daughter was the source 19 of all properties acquired by them; therefore, she is entitled to equal division of Matrimonial properties she mentioned. She added that, the Appellant owned 2OO acres purchased after obtaining the bride price of their daughter, 60 acres by clearing virgin area, 16 acres after purchasing together with her husband’s other wives, 4 houses, 95 cows. That, the trial court awarded the Respondent correctly without being biased. In conclusion, she stated that the Appellant wants to mislead this court on the issue of division of the Matrimonial properties, and based on the submission above and the plethora of relevant authorities pined in, she prayed for this appeal to be dismissed with cost. Submitting his rejoinder before this court, he insisted that his side reiterates what they have submitted in chief. However, on the 1st ground, he submitted that the complained anomaly is fatal per the cases cited in their submission in chief and cannot be salvaged by the principle of overriding objective enshrined in the case of Rehema John Kikoti vs Principal Secretary Ministry of Home Affairs & Others (supra). That, they also reject the proposition that granting divorce was a slip of pen per the case of James Rugemalira (supra) because the act of granting a divorce was the decision of the trial court in itself and not the slip of a pen as the respondent suggested. 20 On the Second ground, the learned counsel submitted that the trial court did error to receive the exhibits without the same being read out, further the principle of reading out exhibits also applies to the Primary Courts as per the case of Pudensia Lugemalira (supra), the same was cited in their submission in chief. Similarly, the requirement for endorsement, the principle of endorsement protects the exhibits from being tampered. That, the cases cited by the respondent regarding the fact that there was no cross-examination by the appellant are not useful in the circumstances because the irregularities pointed out are legal matters which can be raised at any stage even in appellate stage. On the 3rd ground of appeal, the learned counsel insisted that the parties who were conciliated were different from the parties found at the trial court. That, the appellant did not cross examine on that matter despite his presence should not be considered by this court, because the appellant is a layperson not conversant of the laws pertaining, further he was sued by respondent hence he was only going by the court directives not otherwise. 21 On the fact that the certificate was issued without hearing the appellant, the counsel for the appellant insists that since the respondent herself admitted at page 4 of her submission that; “Certificate was issued by marriage Reconciliation Board after appellant denied to attend ward tribunal for conciliation” That, such admission shows that the right to be heard was denied to the appellant hence the certificate is defective in its totality, that the same could not be relied upon to file a matrimonial cause in the trial court. Rejoining on the 4th ground, he insisted that there was no proper re- evaluation of evidence of the trial court by the first appellate court, that had it been done, the division of the matrimonial properties could have been different, otherwise, his side maintains their stance made in their submission in chief and pray that this appeal be allowed. After reading the submissions made by both sides and the records of appeal from both subordinate courts and the grounds of appeal, I am fortified to hold that the only determinant issue in this appeal is whether this appeal has merits before this court. This being a second bite, this court is only entitled to interfere with the concurrent findings of the lower tribunals if the appellant has raised 22 grounds that shows the findings in this instant matter were based on misdirection or misapprehension of evidence or violation of some principles of law or procedure, which have occasioned serious miscarriage of justice. See, Farida Mbaraka and Another vs Domina Kagaruki (Civil Appeal No. 136 of 2006) [2006] TZCA 257 (1 January 2006) (Tanzlii). Starting off with the 1st ground, it is true divorce decree cannot be issued solely on the presumption of marriage as per the law of the land. The court requires proof of a valid recognised marriage before it can grant a divorce. The validity of the said marriage could be either through customary, religious or civil ceremonies. The records before me reveals that the two were customarily married in 1990 and lived as husband and wife until when the trial court declared the said marriage dissolved irreparably. As pointed out, their marriage was based in Sukuma tribe customs and so it was valid. However, the appellant never denied that the respondent was his wife. Therefore, the trial court and the first appellate court were correct in abiding by the law in granting the divorce. The first ground of appeal is thus dismissed. Considering the 2nd ground of appeal, again it is true that admissibility and reading of documentary evidence in court including Primary Courts are 23 governed by the Evidence Act, Cap 6 R.E. 2022 and the Civil Procedure Code Cap 33 R.E. 2022. However, Primary Courts in Tanzania follow a simplified procedures compared to the higher courts, but still adhere to the principles of fairness and due process. The magistrate may allow documentary evidence to be read or summarised depending on the circumstances of the case. In this matter at hand, the major documents tendered were KMA 1 and KMU 1 were not read in court loudly, but still the appellant was not prejudiced by that and did not object to their admissibility. In addition to that, in primary courts, reading out documentary evidence is not an absolute statutory requirement, the court has discretion on how evidence is presented, and the focus is on ensuring that the evidence is properly admitted, relevant and accessible to all parties. I therefore find no merits in the 2nd ground of appeal and it is hereby dismissed. Coming to the 3rd ground of appeal, the names REA NG’OBHA HUMU and SIITA BLAYA SAMALU are indeed completely different to the names LEYA MOBA HUMO and SIITA BULAYA SAMALU. The former names appear in the Marriage Conciliation Certificate which is given by the Ward tribunals. Under the Ward Tribunal Act Cap 206, it requires the members of the tribunal only to have basic understanding of the law and local customs but 24 not formal legal training. From the naked eyes, what transpired that led the names to differ is the lack of formal legal training only to the Ward Tribunal Members. Nevertheless, there is no any place that the appellant has denied the names appearing on the Marriage Conciliation Certificate, and that is as to agree with what has been written in the said certificate In addition, the record reveal that the difference in names was not an issue to the appellant worthy disputing. As when claims were read over to the appellant, he never disputed the names of the respondent. Instead, he was concerned with the substance of the case. The claims. He is recorded to have said “mimi juu ya madai ya talaka kama mdai yeye anataka talaka sawa lakini juu ya mali sikubaliani na madai hayo ya mdai”. In my opinion, this ground is an afterthought. Thus, it lacks merit and it is dismissed. In the last ground of appeal, it should not detain much of my time as the records of the first appellate court reveals that the trial court’s evidence was well re-evaluated as seen in its judgment. The first appellate learned magistrate did consider the seven grounds of appeal filed to his court which required him to re-evaluate the entire trial court’s evidence and reached to the same determination made by the trial court. Again, this ground also lacks merit and it is dismissed. 25 For the foregoing determination, I am not convinced by the appellant to interfere the findings of the lower courts as I am fortified that this appeal has no merits before this court and it is hereby dismissed with costs. It is ordered accordingly. Dated and delivered this 03rd day of March, 2025. T. M. MWENEMPAZI JUDGE 26