civil appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 9917 OF 2024 (Arising from the decision of District Court of Temeke, One Stop Judicial Centre in Matrimonial Cause No. 163 of2022) SILAS BONIPHACE MAIGA................................................................ APPELLANT VERSUS SALMA ISMAIL MSAMI................................................................ RESPONDENT JUDGMENT 05th June & 14th August 2024 BARTHY, J.: The respondent herein Salma Ismail Msami's journey through the legal system began with her petitioning against the appellant herein under Matrimonial Cause No. 163 of 2022 in the District Court of Temeke at One Stop Judicial Centre (the trial court). Her petition was for a formal recognition of her relationship with Silas Boniphace Maiga as a marriage under presumption, a fair share of the properties they had acquired together, custody of their children, and maintenance support for their issues. The court, after thorough deliberation, acknowledged the presumption of marriage and allocated 60% of the Makuburi house and 70% of the Musoma house to the appellant, the remaining shares i '~~~ allocated to the respondent. On the other hand, the farm at Kisarawe was divided equally. Custody of the children was granted to the respondent herein, with the appellant ordered to provide TZS. 100,000 for maintenance of the issue, along with educational and health expenses. Dissatisfied with these outcomes, the appellant has now appealed to this court, contesting the trial court's decision on the following grounds; 1. That the trial magistrate erred in law and in fact by arriving at unjust decision for failure to analyse the evidence properly and misconceived the interpretation of the principle of distribution of matrimonial properties especially the house located at Makuburi in Ubungo District-Dar es salaam. 2. That the trial magistrate erred in law and in fact by restoring the suit without following the required legal procedures provided by the law. 3. That the trial magistrate erred in law and in fact by dividing non-existing property without any proof of its existence. 4. The trial Magistrate grossly erred in law and in fact by relying on improperly adduced and recorded evidence. 2 ------- 5. The trial Magistrate grossly erred in law and in fact by proceeding with a suit as successor without assigning the reasons for stepping in. 6. The trial Magistrate grossly erred in law and in fact by ordering the issues to stay with the respondent without considering the best interest of the child. Wherefore, the appellant prays for this court to quash and set aside the proceedings, judgment, and decree of the trial court with costs. The hearing of this matter was conducted by way of written submissions, with both parties duly filing their submissions on time. On behalf of the appellant, Mr. Bahati N. Makamba, the learned advocate, stated that he would argue only four grounds of appeal and abandon the 2nd and 5th grounds of appeal. Mr. Makamba began with the fourth ground, faulting the trial Magistrate for grossly relying on improperly adduced and recorded evidence. He argued that the trial Magistrate took the evidence of the appellant without administering an oath. It is evident from the records of the trial court, both handwritten and typed proceedings dated 22/05/2023, at page 16 of the typed proceedings, that SU1 (Defence Witness 1), who is the appellant herein, gave unsworn evidence contrary to section 4(a) of the Oaths and Statutory Declarations Act [CAP 34 R.E. 2019], which makes it mandatory for witnesses giving evidence in court 3 ------ to do so under oath, and Section 127 of the Evidence Act [CAP 6 R.E. 2019]. To support his argument, Mr. Makamba cited the case of Amos Seleman vs Republic (Criminal Appeal No. 267 of 2015) [2016] TZCA 311; (24 April 2016), referencing the case of Mwami Ngura vs Republic, Criminal Appeal No. 63 of 2014, where the Court of Appeal addressed mandates that witnesses take oaths. Mr. Makamba also argued that this omission is fatal and cannot be remedied, as even the overriding objective enshrined under section 3A of the Civil Procedure Code [CAP 33 R.E. 2019] cannot be applied blindly against mandatory provisions of procedural law. Furthermore, Mr. Makamba stated that the trial Magistrate determined the Matrimonial Cause No. 163/2022 by relying on the unsworn evidence of SU1, as seen in the decision of the trial court. As in the case of Iringa International School vs Elizabeth Post (Civil Appeal No. 155 of 2019) [2021] TZCA 496; (20 September 2021), the court stressed on the mandatory requirement for witnesses to give evidence under oath, and the omission to do so vitiates the proceedings leading to nullify the proceedings (testimony) in respect of those witnesses. Similarly. Also, in the case of Catholic University of Health and Allied Sciences (CUHAS) vs Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 (unreported), the Court stated; 4 'Where the law makes it mandatory for a person who is a competent witness to testify on oath, the omission to do so vitiates the proceedings because it prejudices the parties' case.' Mr, Makamba argued that the omission in Matrimonial Cause No. 163 of 2022 vitiates the proceedings, prejudicing the parties' case and leaving the appellant without any evidence, thereby denying him the right to be heard. He prayed for the court to nullify the trial court's proceedings, decision, and decree. On the first ground of appeal, Mr. Makamba submitted that the trial Magistrate misapplied the principle of the extent of contribution during the distribution of matrimonial properties. The misconception began with the house in Makuburi, Ubungo District, where the trial court erroneously awarded 40% to the Respondent and 60% to the Appellant. He was firm that the trial Magistrate incorrectly assumed that the Respondent's participation as a witness in the house purchase proved her contribution, even though the contract was signed by a different person known as "Salma Silas Maiga," who is not the respondent, "Salma Ismail Msangi." He proclaimed this error led to an unjust outcome for the appellant, referencing the decision of the Court of Appeal in Barelia Karangirangi vs Asteria Nyalwambwa Civil Appeal No. 237 of 2017, which is backed by sections 110 and 111 of the Evidence Act [CAP 6 R.E 2019]. He stated the respondent has failed to provide evidence of her contribution to the house's acquisition. Additionally, Mr. Makamba argued that the trial court erred by considering domestic services as a contribution to acquiring the Makuburi house, ignoring the fact that the house was bought by the appellant before he and the respondent started living together. The trial Magistrate failed to analyze the evidence that showed the house was purchased on 20/04/2004, before the parties lived together in 2004, and the Respondent was merely a witness to the sale, as per Exhibit D2. Furthermore, it was submitted that the trial Magistrate made another error regarding the house at Musoma Block No. 49 Misengi, where 30% was awarded to the respondent and 70% to the Appellant without sufficient evidence of the extent of contribution. The trial court formed its own assumptions, reasoning that because the house was acquired while the parties were living together, the respondent's domestic services entitled her to 30%. The third ground of appeal challenges the trial magistrate for dividing a property that allegedly does not exist. It was argued that the trial court erroneously divided the house at Musoma Block 5 No. 49 6 Misengi, despite the absence of evidence proving its existence or the respondent's contribution to it. Mr. Makamba stated that no evidence was presented by the respondent to prove the existence of the said house. The respondent merely testified that the appellant bought the house at Musoma Block 5 No. 49 Misengi in 2007, as reflected in the proceedings of 22/05/2023 on page 11. Despite this, the trial court classified it as matrimonial property and divided it, awarding 30% to the respondent and 70% to the appellant. Furthermore, it was pointed out that there is no place called Misengi in Musoma, indicating that the house and area in question do not exist. On the sixth ground, it was argued that the trial magistrate erred in law and fact by awarding custody of the two children, Nyangeta Silas Boniface and Faith Silas Boniface, to the respondent without considering the children's best interests. Mr. Makamba submitted that the trial magistrate disregarded the children's opinions, as noted on pages 3 and 4 of the typed judgment. The respondent admitted that the appellant loves the children, as seen in the proceedings of 22/05/2023 on page 14. Given these circumstances, Mr. Makamba stated it would have been in the best interest of the children for the trial magistrate to grant both parties equal custody rights, perhaps by dividing custody during holidays. The appellant's counsel cited the case of Rosy Jacob vs Jacob A. Chakramakkal (1973) 1 SCC 840 to support this argument. Based on the above submissions, the appellant prays for the decision of the District Court to be quashed and the appeal allowed with costs. Resisting the appeal, the respondent represented by the learned counsel Mr. Respicious Didace, argued against the first ground of appeal. He contended that the trial magistrate correctly analyzed the evidence tendered. He was firm the house at Makuburi was the matrimonial home, acquired on 20th August 2004, after the parties began their relationship in 2002 and started cohabiting in 2004. He stated the respondent was identified as Mrs. Salma Silas Maiga in the sale agreement (Exhibit D.2). The Appellant's first wife had already passed away on 14th May 2004, before the house was purchased, and both parties acknowledged that they lived in the house with their children from 2005 until 2021 when the respondent left due to domestic violence. Regarding the Respondent's contribution, it was argued that she participated in renovating the house, making it habitable, and supported the family through petty businesses, including cooking and poultry farming. The Respondent claimed that the 40% share awarded to her was insufficient given her contributions as both a housewife and 8 -— businesswoman. These contributions are recognized as domestic work under Section 114(2) of the Law of Marriage Act, 1971, entitling her to a share in the matrimonial assets. The Respondent cited the cases of Bi Hawa Mohammed vs Ally Seif [1983] TLR 146 and Bibie Mauridi vs Mohamed Ibrahim (1989) TLR 162 to support her claim. The Respondent's counsel also submitted that the principle of "he who alleges must prove" was satisfied, as the respondent provided detailed information on how the property at Makuburi was purchased with her involvement as the appellant's wife. In response to the third ground of appeal, which claimed .the trial magistrate erred by deciding on properties that did not exist, the respondent argued that Plot No. 49, Block 5, referenced on page 11 of the typed proceedings, did exist. It was purchased by the appellant in 2007 during the marriage, and the respondent was aware of it. During cross-examination, the appellant admitted to owning Plot No. 49 Mwisengi, although he stated that he did not have a house there On the fourth ground, which claimed that the trial magistrate erred by relying on improperly recorded evidence, Mr. Didace argued that this ground is baseless. He explained that the omission in the typed proceedings was inadvertent and that the appellant was indeed sworn in. The counsel further argued that the appellant cannot challenge his own evidence on the grounds that it was unsworn, as it would imply, he 9 — testified falsely. Mr. Didace suggested that the overriding objective principle should be applied to remedy the omission in the typed proceedings, citing Tanzania Distillers Limited vs Bennetson Mishosho, Civil Appeal 382 of 2019. Regarding the sixth ground of appeal, which challenged the trial court's decision to award custody of the children to the Respondent, Mr. Didace argued that the decision was in the best interest of the children. He noted that at the time of judgment, their children Nyangeta (17 years old, in Form 3) and Faith (15 years old, in Form 2) were doing well in school, as acknowledged by the Appellant. The trial court's decision aligns with Section 4(2) of the Law of the Child Act, 2009, making this ground of appeal unfounded In rejoinder, Mr. Makamba reiterated the points made in his initial submission, and I find no reason to repeat them. After going through the submissions, pleadings, and the records of the trial court, the court must determine the merit of the appeal. The appellant initially raised six grounds but abandoned two, leaving four for consideration. The fourth ground questions whether the trial magistrate erred by relying on improperly adduced and recorded evidence. The appellant's counsel, Mr. Makamba, argued that the magistrate's failure to administer an oath to the appellant during the hearing invalidated the entire proceedings. In contrast, the respondent's counsel, Mr. Didace, countered that the omission did not impact the material evidence and invoked the principle of "overriding objectives," emphasizing substantive justice over procedural errors. In the proceedings dated 23/05/2023, it is evident that the appellant presented his evidence without being sworn in, contrary to standard legal procedures. This error is documented in both the typed and handwritten records, challenging the respondent's claim that it was merely a typographical mistake. The necessity for court records to accurately reflect the actual proceedings was highlighted in Attu J. Myne vs CFAO Motors Tanzania Ltd, Civil Appeal No. 269 of 2021. The main issue raised by this oversight is the evidential value of unsworn testimony, as it lacks the formal guarantee of truthfulness, thereby questioning its admissibility and reliability in court. The Oaths and Statutory Declarations Act [CAP 34 R.E. 2019], particularly Section 4(a), mandates that witnesses must take an oath or affirmation before testifying in court, as it states; 'Subject to any provision to the contrary contained in any written law, an oath shall be made by- (a) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court; ii Mr. Makamba contends that the trial magistrate's failure to administer an oath undermines the proceedings, as the oath ensures truthful testimony and upholds judicial integrity. While the respondent's counsel argues that minor procedural errors can be remidied under the principle of "overriding objectives," the court must balance this lapse against the broader interests of justice. The law of Evidence under Section 127 (1) of The Evidence Act, Cap 6, R.E 2022 requires the person who will testify before the court to be competent and credible witness. This requirement was stressed in the case of Amos Seleman vs Republic (Criminal Appeal No. 267 of 2015) [2016] TZCA 311; (24 April 2016), when the Court of Appeal cited with approval the case of Mwami Ngura vs Republic, Criminal Appeal No. 63 of 2014, the Court of Appeal where it was held that; as a general rule, every witness who is competent to testify, must do so under oath or affirmation, unless, she falls under the exceptions provided in a written law. As demonstrated above one such exception is section 127(2) of the Evidence Act. But once a trial court, upon an injury under section 127(2), of the Evidence Act, finds that the witness understands the nature of an oath, the witness must take an oath or affirmation... [Emphasis is ^7 supplied]. 12 In the case of Magreth Haward Lyimo vs. Eliud Jacob Bailemba, Civil Appeal No. 191 of 2020, the High Court of Tanzania, Dar es Salaam District Registry, Justice Kulita emphasized the mandatory requirement of administering an oath to a witness before they testify. The law clearly imposes this obligation, which cannot be overlooked or rectified by invoking the overriding objectives under Section 3A of the Civil Procedure Code, Cap 33 R.E. 2019. The failure to administer an oath to a witness is a critical error that invalidates the proceedings, as confirmed in the case of Catholic University of Health & Allied Science (CUHAS) vs. Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 [2020] TZCA 1890. Due to this significant flaw in the trial court's proceedings, this ground of appeal has merit, and there is no need to address the remaining grounds., as doing so would only reinforce the identified irregularity. Consequently, this appeal is allowed. Given that the trial court's proceedings are flawed, the appropriate remedy is to quash and set aside the entire proceedings, judgment, and decree. Ordering the appellant alone to retake his evidence under oath could unfairly benefit him. Therefore, it is in the best interest of both parties to quash and set aside the entire proceedings related to the witnesses' evidence, the judgment, and the decree of the trial court. 13 Therefore, a retrial before a different magistrate is necessary and should be expedited, as the case has been pending for a long time. Since the procedural error was made by the trial magistrate, no order for costs is made. It is so ordered. Dated at Temeke this 14th day of August, 2024 G. N JUDGE .0 Delivered in the presence of appellant in person, Mr. Joseph Mandela holding brief of Mr. Bahati Makamba learned advocate for the appellant, respondent in person and Ms. Bernadina Tayari, RMA. 14