20tanzliiCIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 58 OF 2023 {.Appeal from judgment of the District Court of Temeke One Stop Judicial Centre at Temeke in Matrimonial Cause No. 45 of2022) VERONICA GABRIEL SWAI............................................... APPELLANT I VERSUS I STANSLAUS SUNDAY CHIGANGA (Formerly known as । STANSLAUS SAID HAJI)..................................................... RESPONDENT JUDGMENT Date of last order: 07/03/2024 Date of Judgment: 19/03/2024 OMARI,J. The Appellant, Veronica Gabriel Swai preferred this appeal on two grounds as follows: 1. The trial court erred in law and fact for not declaring a house! at Majita Road, Musoma District in Mara Region as a Matrimonial propejty jointly I acquired during the subsistence of the marriage between the parties. 2. That, the trial court erred in law and fact for not distributing die house at Majita Road, Musoma District in Mara Region. It is on those grounds that she is beseeching this court to make orders that the appeal be allowed and the judgment of the District Court of Temeke at One Stop Judicial Centre in Matrimonial Cause No. 45 of 2022 be.quashed I and set aside. The Appellant is aliso imploring this court to declare tihe house at Majita Road, MusomalDistrict in Mara region a matrimonial property and I equally divide it as well as ordering the Respondent to pay the costs of this appeal. I On the date set for hearing, Mr. Andrew Miraa who was. holding brief for.Mr. Frank Ntuta, advocate for the Respondent prayed that the matter ibe heard I by way of written submission. The Appellant did not object to that prayer as she is a recipient of legal assistance from the Women's Legal Aid Centre (WIAC). A schedule was entered and the paries complied in so far as the submission in chief and reply, as shall be late; .explained the Appellant filed f ! he’e rejoinder out of time. The Appellant's submission which was drawh on her behalf by iMs.Grace I Daffa of WLAC submitted on both grounds collectively. It is her submission I, that in her Answer to the Petition for Divorce the Appellant listed a house with four business frames at Majita Road, Musoma-Mara in addition to the house the Respondent herein had listed in his Petition. Ms. Daffa argued that the trial court neither declared this house a matrimonial property nor did it distribute it as a matrimonial property. Counsel referred to section 114 of the Law of Marriage Act, Cap 29 R.E. 2019 (the LMA) stating that the trial I court was required to have declared the said house as matrimonial property । il ill and distribute it; failure । to do so deprived the Appellant a fair'arid just decision by the trial court. Counsel also urged this court to draw wisdom from the Court of Appeal decision in the case of Richard Majenga v. I Specioza Sylvester, Civil Appeal No. 208 of 2018 which enunciates the I I : ! court's power to divide matrimonial assets which the trial courtfailed to do. She concluded her submission with a prayer that the appeal be allowed and I that this court orders a trial de novo regarding the house in dispute so that I I it cep be determined as a matrimonial property. Wh|an it was his turn Mr. Ntuta commenced his Submission by framing an issue whether the appeal has merit, then went bn to submit on each ground of appeal. Before doing this counsel prayed for this court to adopt the I proceedings and judgment of the trial court as part of his submission. On the first ground of appeal counsel argued that the trial court was icorrect in not declaring the house in question as a matrimonial property as the same was not raised or proved as a matrimonial property acquired jointly by the parties. Counsel went on to state that it is not true that the house in dispute was raised in the Answer to th,e Petitiqn of Divorce because she has fail'ed|to cite where the same was raised within the Answer. This, according to counsel means the house was not pleaded and therefore not proved to be matrimonial property, thus, this Appeal is an afterthought. To buttress his argument, he referred this court to the case of Hadija Ally v. George Masunga Msingi, Civil Appeal Ncj. 384 of 2019 where in the Court'of Appeal refused to consider a ground of appeal not decided by the trial court. Counsel J furtier referred to page 3 of the trial court's judgment where it only dealt with the house at Bunju B and no other propejifty thus, he argued that the hoilnse in dispute is a new fact raised on appeal and this court has no jurisdiction to deal. Counsel submitted on the second the ground olf appeal stating that the trial court was right in not distributing the house in dispute as the same was neither pleaded nor proved during trial. He then went on to challenge the Appellant's reliance to the case of Richard Majenga v. Specioza syivester (supra/since it is aistinguisnaoie as tne omy property proved was the Bunju B property which was distributed unlike the house in dispute. Counsel concluded his submission by stating that the appeal before this court is wholly an afterthought sjirice all |the issues raised were not raised ip the trial court thus, lacks in merit and should be dismissed completely. I In her rejoinder, which was filed late without leave of this court; Ms. Daffa raised a point of law that the Respondent prematurely instituted a Petition I ’ i for divorce before the District Courjt of Temeke One Stop Judicial pentre at Temeke contrary to section 101 lof the LMA. The said section । requires reference to a Marriage Conciliation Board (the MCB) and a certification thereof. Counsel stated that it is apparent tha : the Respondent did not I comp y with the requirements of the law as this matrimonial dispute did not go though the MCB before the institution of the (petition. Therefore, the trial court was not vested with the requisite jurisdiction to entertain the matrimonial dispute between the parties. Ms. Daffa argued that this being a point of law can be raised at any stage buttressing her argument with reference to the Court of Appeal case of Yohana Balole v. Anna Benjamin Malongo, Civil Appeal No. 18 of 2020 [2021] TZCA 388 wherein the court held the trial court did not have the requisite jurisdiction to entertain the matter in a situation akin to this one. This, according to counsel, vitiates the entire decision and proceedings of the trial court in Matrimonial Cause No. 45 of 2023 thus, this court should nullify the entire proceedings of the trial court and quash the judgment thereof. As the point of law was brought vide the Appellant's rejoinder to the i I Respondent's submission this court called in the parties to avail the i , Respondent an opportunity to address it on the same. Mr. Ntuta the Respondent's advocate just briefly informed the court that he objects to the i object on as even the rejoinder was filed out of time. He went on to state I II that t ile said objection is not on a pure point of l=w following the holding in I I * the case of Mukisa Biscuits Manufacturing Co. v. Wisst End Distributors Limited [1969] EA 696 as it needs Hong drawn out arguments and evidence. Nonetheless, counsel stated that the matter was referred to the MCB and the certificate thereof was annexed to the Petition and tendered as evidence during trial. He beseeched this court to find the objection unmeritorious and urged it to proceed to pronounce judgment on the appeal I as scheduled. Although brought irregularly, the issue of noncompliance to section 101 of the LMA affects the jurisdiction of the trial court hence, I have to determine the same first to establish whether the court had jurisdiction to grant the decree or not and the way forward. For ease of reference, section 101 in part provides as follows: । "No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board and the Board has certified that it has failed to reconcile the parties..." Further, Regulation 9(2) of the Marriage. Conciliatory Boards (Procedure) < I ' 1 Regulations G.N. No. 240 of 1971 (the Regulations) provides: - "Where the dispute is between a husband and his wife and relates to the breakdown of die marriage or an anticipated breakdown of the marriage, and the Board fails to reconcile the parties, the board shall issue a certificate in the prescribed form." This fp'eans without a certificate of the MCB in th$ form of Form No. 3 which is a dondition precedent for a Petition for divorfce to be aamiuea and be determined by a court, the court has no jurisdiction to grant a divorcee. There are exceptions that are stipulated in the proviso to section 101 of |.the LMA, see also the case of Amina Hussein Mashimba v. Wilbard Roman Mushi (Civil Appeal No. 36 of 2022) [2023] TZHC 18020. What is before me is a question as to whether the matter was rererreo to an MCB and if a certificate thereof was issued by an MCB. Perusal of the record reveals a Certificate from the MCB of Mabwepande Ward dated 07 February, 2022 was Annexure SSC4 to the Petition. The said Certificate (Form No. 3) states: "Inathibitisha kwamba Baraza hili iimeshindwa kabisa kuwapatanisha watu wawiii, yaani mume na mke kwa hiyo maoni ya baraza ni kuwa:- Ndoa ivunjwe na taiaica itoiewe kwani Baraza ia usuiuhishi Pamoja na Ofisi za Ustawi: wa i'Jamii. zimeshindwa kuwasuluhisha wanandoa hawa baada ya kila mmoja kuwa na msimamo wake na kutengana kwa muda wa miaka mitatu sasa mke anataka talaka sawa na \maombi ya mume. "(Emphasis supplied) Briefly the above translates to the MCB (and the Social Welfare Oficer) has failed iiito conciliate between the two as they w^re both adamant on their I position having been separated for three years. Furthermore, the wife wants a divorce as requested by the husband. The certificate is signed by the Chairperson, Vice Chairperson, a member of the MCB and the Secretary to the MCB. In his Petition the Respondent (the Petitioner in the trial court) in Paragraph 9 simply stated the dispute had been referred to the MCB which upon failure to reconcile the two issued the certificate as already described above. In her Answer to the Petition, the Appellant disputed the contents of Paragraph 9 i I I of the Petition and put the then Petitioner to strict proof while stating that she has never been called to any reconciliation. Furthermore, the proceedings of the trial court depict that on 07 March, 2023 the Respondent while testifying stated as follows: "Tulienda Baraza la Kata lakini hawakuweza kutupatia sutuhu. Wa/itupatia cheti naomba kipokelewe kama Ushahidi." This translates to we went to the MCB; however, they were unable to conciliate us so they gave us a Certificate. He :hen prayed forj the said Certifi|ate to be admitted into evidence. The Ap Dellant is quoted to have said: "Mheshimiwa sitambui fomu hii." The above translates to I do not recognize this form. The trial magistrate went ahead to admit the Certificate as Exhibit P2. During cross examination the Respondent is quoted to have said: "Tulienda baraza la Kata siku ya kupewa.barua hakuja, nikapewa barua mwenyewe." Briefly, he replied that they, had gone to the MCB however, on the gay they issued the letter (Certificate) she did not appear so he got the letter. During the defense case the Appellant stated that she was not called to the MCB I I and that she had no notice of the trial, she stated: "Sikuitwa baraza la Kata wala sifahamu chochote. Shaun lilifungullwa bita taarifa." As already stated earlier, the Respondent annexed a copy of the certificate i □f the MCB which was later admitted into evidence, and from what I have •? I already reproduced above the said Certificate speaks of both the husband and wifp. My reading of the Certificate, I see no indication that one of them I did nofl । appear before the MCB. And, being the! Certificate is an official docurr|pnt which was later admitted into evidenceu<;nus, forming ~~“t of the court's । record which is in all aspects sanctified; |in the absence!: of proof otherwise one cannot and should not cavalierly c|ismiss it. There being no evidence to prove otherwise the certificate from the MCB of Mabwepande is indication enough that the matter was referred to the MCB thus, the Appellant's objection is without merit and I shall proceed to determine the Appeal. Before doing so I shall make brief remarks on two matters. The first is that I am aware that this is a first appeal I am therefore mandated to go back to the evidence that is available on the record and re-evaluate the same and । arrive at a conclusion. i I i I i I I The second matter is that of the Appellant's counsel call for this, court to order a trial de novo as regards the house in dispute so that t can be determined as a matrimonial property. Various authorities provide for the principles and circumstances that would lead a court to consider whether it I 1 I is proper to order trial de novo or otherwise. One such authority s cited in the case of Kanguza s/o Machemba v. R Criminal Appeal No. 157 of 2013, wherein! the Court of Appeal referred to the case Of Fatehali Manji v.R, [1966] EA 343 in which the court clarified the principles a court should consider when seeking to order a trial de novo. The East African : Court of Justice lhad this to say: I "...in general, a retrial will be ordered only when the original trial was illegal or defective; ... each case must depend on Its particular facts and circumstances and an order for retrial should only be made where the interests ofjustice require it and should not be ordered where it is likely to cause an injustice to the accused person..." An order for retrial can only be made where the interests of justice require it and should not be ordered where it is likely to occasion injustice to any party. In the case at hand the Appellant's counsel who is seeking a trial de novo as regards the house in dispute |has not provided any material that the trial was illegal or defective ir^i substance or form. Having gone through the trial court's record I see no compelling reason why this court should order a trial de novo. | i Back to the grounds of appeal, both grounds pivot on the House bn Majita I 1 I Road Musoma District Mara Region. The first ground is based the fact that the said house was not declared a matrimonial property jointly acquired during the subsistence of the marriage while the second ground is based on I the fact |hat the said house was not distributed as <ij matrimonial property. I shall determine the two grounds collectively fori they are interrelated. In I L . I paragraph 10 of the Petition the Respondent stated that the two had jointly acquired properties that are subject to division, de listed the same as a house in Bunju B Kinondoni, a motorcycle with Registration No. MG 292 CER and common domestic items, apparel and utensils. In her Answer the Appellant had stated apart from what the Respondent had listed the two have another house with four business frames at Majita Road Musoma, Mara Region. During testimony, the Respondent only spoke of the house in Bunju and after acknowledging it as a joint property he recommended that it be left to the children as currently no one lives in the said house. During the hearing of the defence ca^e, the only reference to property ttyat i I I can be seen in the Appellant's testimony was as regards being asked to leave the Bunju property which she stated did not remember when they started construction but construction was during the subsistence of her marriage. In her words: "Aiitaka niondoke Bunju mmejenga sikumbuki tumeanza kujenga hiki kiwanja na ujenzi viiifanyikc nikiwa kwenye ndoa." The tria.l| magistrate dealt with the issue of matrimonial property from page 3 throutWi to page 4 of his judgment. He had this tq>| say: "NitamaUza na kiini cha mwisho cha machumo ya ndoa. Hakuna ubishi kuwa wadaawa 'wamechuma kwa Pamoja nyumba Hiyoko Bunju "B'‘ Kiia upande unastahiii mgao Hnganifu wa asiiimia 50. Amr! ya tathimini ya nyumba hii inatoiewa kwa mamlaka husika Hi kupata thamanlyake, upande wenye uwezo ufidie upande mwingine stahiki yake na kubakia na nyumba. Endapo ndani ya miezi mitatu, wadaawa washindwa kufidiana, nyumba tuzwe na wadaawa wagawane kwa uwiano ullotamkwa baada ya kutoa gharama za zoez! ia tathimini." The above roughly translates to; there is no dispute that the two have jointly acquired a house at Bunju B. Each side is entitled to an equal share of the property, that is 50%. An order for valuation of the said house was made and the parties were allowed to compensate the other to remain i with the property if they were so capable. If within 3 months the compensation his not happened then the house be put up for sale and after deducting the costs for valuation then the proceeds be equally divided between the parties. The house in dispute was neither declared matrimonial property nor divided between the parties. This is why the Appellant called on this court.' Other than in her Answer to the Petition, the record does not depict' anything । about thq house on Majita Road, Musoma Mara. Thd Appellant said nothing about it her testimony nor did she adduce any evidence as regards the same. Furthermore, even when the Respondent or|)y mentioned the Bunju property' during his testimony and nothing else the|>Appellant did not cross examinq him, thus, the only inference that can be drawn is that she was not disputing that the only property that they acquired jointly was the house in Bunju B which the trial court amiably distributed an equal share to each of the parties. I am guided by the principle that the law imposes a duty to prove by a party who wants the court to give justice in his favour. This principle is enshrined in section 112 of the TEA which states: "The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall He on any other person. "(Emphasis supplied) The Appellant did not prove that the house in dispute is matrimonial property, thus, cannot expect the court to distribute the same. Moreover, in the case of Anthony M. Masanga| v. Penina (Mama Mgesi) and another, Civil Appeal No. 118 of 2014 it was stated that: "Let's begin by re-emphasizing the ever-cherished principle of law that generally, In civii cases, the burden of proof lies on the party who alleges । anything in his favour. We are fortified in pur view by the provisions ofsections 110 and 111 of the Law of Evidence Act, Cap. 6 of the Revised Edition, 2002 which state inter alia..." The question is therefore whether the Appellant has managed to prove that the house she is claiming is matrimonial property and if so it qualifies to be divided between her and the Respondent as stipulated by section 114 of the LIMA. The record depicts that no evidence was adduced in so far as the acquisition and or joint ownership of the house in dispute by either of the parties, thus, declaring the said house a matrimonial property and distributing it would have been utter conjuncture on the part of the trial court which I need not overemphasize is not something a court should be doing. Accordingly, I find both grounds of appeal with no merit and the prayers by the Appellant cumulatively untenable. The Appeal is dismissed. This being a matrimonial matter each party shall bear their own costs. It is so ordered. Judgment delivered and dated 19th day of March, 2024. JUDGE 19/03/2024