yusuph ally nyumba another vs aziza chande kitone 2022 tzhc 15796 17 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC CIVIL APPEAL NO. 11 OF 2021 (Arising from the decision of the District Court of Temeke at Temeke in Matrimonial Appeal No. 20 of 2021) YUSUPH ALLY NYUMBA...................................... 1st APPELLANT HAFIDHU FADHILI................................................ 2nd APPELLANT VERSUS AZIZA CHANDE KITONE..........................................RESPONDENT JUDGMENT Date of last order: - 04/08/2022 Date of judgment: - 17/12/2022 The above-named appellants were dissatisfied with the decision of the District Court of Temeke at Temeke in Matrimonial Appeal No. 20 of 2021 delivered by Hon. Ngeka on 16th September 2021, appealed against the whole decision on the following grounds:- 1. That, the 1st appellate Court erred in law and facts in holding that the house in dispute is a matrimonial house while there is no proof that it is joint property. i 2. That, the 1st appellate court erred in law and in facts by not fully examining the records of Primary Court. The 1st appellate court took and put in use in its decision only that are in interest of the respondent and left the truth therein, that the house in dispute belonged to the 1st appellant, (sic) 3. That, the 1st appellate court misled itself in believing that the Ward Tribunal had no pecuniary jurisdiction by believing that the house valued 8,400,000/= while it is not. A cooked valuation process not attended by 2nd appellant, (sic) 4. That, the 1st appellate Court erred in law and in facts by misunderstanding the interest of 2nd appellant in the case, and holding that the property in dispute is a joint property. 5. That, the 1st appellate court erred in facts and in law by disregarding the records of the Same District Court in application /case No... determined by honourable Mushi submitted to it. (sic) Wherefore the appellant prays for the appeal to be allowed, the decision of the 1st appellate court be quashed and set aside, the decision of the Primary Court be upheld and the house in dispute be declared that it belongs to the 1st appellant, Cost be borne by the respondent and any other relief this honourable court deems fit to grant. 2 Submitting for the appeal the 1st appellant stated that Hafidhu Fadhili (second respondent) proved to the court that the property was not theirs, therefore the decision reached was wrong as the appellate court did not consider the records of the trial court. Respondent never adduced any document and the court never made an inquiry regarding the ownership of the property which is not a product of joint efforts of the 2nd appellant and the respondent. He further stated that the court also erred to hold that the property was valued at 8,400,000/= the valuation conducted was fabricated, and the real value is three million only, this is because the matter was at Ward Tribunal which had jurisdiction of 3,000,000/=, irrespective of that it was attached. Also it was decided in Misc. Civil Application No. 30 of 2019 at the District Court that the property was not of two persons jointly. When the execution was underway at Mbagala Primary Court, Hon, Nderemo held that it was not their property and allowed him to proceed with developments. That irrespective of that the same matter was taken matter was again taken to court by Aziza hence this appeal. The same court held that the matter is matrimonial property contrary to its previous decision, hence he pray for this decision to be revised. On his part second appellate stated to have no objection to the 1st appellant's prayers and further stipulated that, he had already stated at the Primary Court that the property was not theirs. That it is the respondent who insisted that it is their property but in reality the house was of Yusuph Ally Juma who brought proof of the same and received a judgment in his favour. He stated that, it was also decided that he pay 3 her 600,000/= but when he was in the process of raising the money she appealed to the higher court where he maintained that the house is not their matrimonial property. He prayed for the court to administer justice to the 1st appellant who has been in court for no reason. In her reply to both appellants' submission, the respondent stated that they got married in 2010 and stayed for five years, in 2014 they got funds from simsim cultivation part of which they used to buy the plot from 1st appellant on which they subsequently built the house in question. In 2015 they started construction of the house. The respondent further stated that she was the one who supervised the construction of the house and the 1st appellant did not claim anything by then. Lastly, the respondent submitted that the mason who constructed the house never knew the 1st appellant and he did not cross-examine the respondent on the same, and we even attended to the High Court before Hon. Mruke, J and Kitusi, J with Hafidhi only but whenever I win it is the 1st appellant who is appealing. Having gone through the parties' submissions it is vivid that the gist of this appeal is on the ownership of the alleged matrimonial house as all parties' submissions are directed towards that. Hence, I find it prudent to fuse all five grounds into one as to whether the house in dispute is a matrimonial property between the 2nd appellate and the respondent. It is also worth noting that before the instant appeal there are series of cases that were filed before the courts of law of different levels over the 4 same issue. The original case was Civil Cause No. 13 of 2016 filed at Mbagala Primary Court and the parties were Aziza Chande Kitone and Hafidhu Fadhili where the divorce was issued and respondent (Hafidhu Fadhili) was ordered to pay 600,000/= as "Muta". The sid house was held not being a matrimonial property. Aggrieved with the decision of the Primary Court, Aziza (respondent) filed a Civil Appeal No. 36 of 2016 at District Court of Temeke at Temeke where by on 17th July 2016 Hon Kihawa, SRM delivered a ruling to the effect that the house be divided to the ratio of 30% to the Appellant and 70% to the respondent as it was a matrimonial property. Hafidhu Fadhilu (2nd appellant) was aggrieved by the decision of the District Court appeal to the High Court vide PC. Civil Appeal No. 6 of 2017, Dar es Salaam Registry before Muruke, J and on 6th March 2017 the appeal was struck out for being time barred, leading to the application being struck out. Pursuing his rights further, he knocked the High Court doors this time through Misc. Application No. 26 of 2017, Dar es Salaam Registry, before Kitusi, J, praying for extension of time to file appeal out of time. On 17th May 2018 the same was dismissed for failure to justify his delay. One Yusufu Ally Chande Nyumba, the first appellant herein application No 20 of 2018 before Mwandege Ward Tribunal suing both the respondent and the 2nd appellant over the ownership of the same house, after noting its involvement in the matrimonial proceedings. He won as the house was held to belong to him. After that, he filed an application for stay of execution of the order issued by District Court of Temeke at Temeke on Civil Appeal No. 36 of 2016 vide Misc. Civil Application No. 30 of 2019 and on 2nd July 2019, before Hon. K.T Mushi, RM granted the applicant's 5 prayer. He went to trial court to affirm his ownership, the court held that the property is his and not matrimonial property. This is what led to the Matrimonial Appeal No. 20 of 2021 which again held that the property is matrimonial worth dividing between the parties. As noted above, the current appeal originates from decision of District Court of Temeke at Temeke in Matrimonial Appeal No. 20 of 2021, and the parties which form the appeal are Yusuph Ally Nyumba as 1st appellant, Hafidhu Fadhili as 2nd Appellant and Aziza Chande Kitone as respondent. Reading in lines the decision of Matrimonial Appeal No. 20 of 2021 on page 1 line 1 it clearly states that it was an appeal from the primary court judgment. In the series of cases filed the 1st appellant herein was not part of the case (matrimonial proceedings) hence a stranger to the original case that is Civil Cause No. 13 of 2016 at Mbagala Primary Court where the original parties were Aziza Chande Kitone and Hafidhu Fadhili, his name was only mentioned as the owner of the house in dispute, when he went to notify the court of his title he had acquired from the land court, thus, he lacks locus to be a party in this appeal. Matrimonial proceedings are between spouses only. In the case of Peter Mpalanzi v Christina Mbaruka, Civil Appeal No. 153 of 2019, the Court of Appeal of Tanzania, at Iringa defined Locus Standi to mean the right or legal capacity to bring an action or to appear in a court. The same court, quoted the decision of Lujuna Shubi Ballonzi v. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203, Samatta, J (as he then was) had the following to say on locus standi: 6 "Locus standi is governed by common law according to which a person bringing a matter to court should be able to show that his right or interest has been breached or interfered with. The High Court has the power to modify the applied common law so as to make it suit local conditions." It was further held that, "Locus standi is a rule of equity that a person cannot maintain a suit or action unless he has an interest in the subject matter. Unless a person stands in a sufficient close relation to the subject matter so as to give a right which requires protection or infringement of which he brings the action, he cannot sue on it- (see Godbless Lema v. Mussa Hamis Mkanga and 2 Others, Civil Appeal No. 47 of 2012 (unreported). The original case is of issuance of divorce and division of Matrimonial properties of which the 1st appellant is a stranger to. The 1st appellant could have locus only if this was an appeal originated from Misc. Civil Application No. 30 of 2019 which is a stay of execution as he has an interest in the subject matter and he has a right that requires a protection. This appeal is not originating from the Misc. civil application No. 30 of 2019. It is also noted that the mistake of including the name of the stranger to the proceedings did not start with this appeal it originated from the Matrimonial Appeal No. 20 of 2021 itself where the respondent herein had appealed against him as a 1st respondent therein. That appeal was incompetent as it was against the wrong party and concerning the same 7 subject matter the same court had already determined in both Civil appeal No No. 36 of 2016 and Misc. Civil Application No 2019. The District Court was therefore wrong to entertain the issue taking into account that there was already an appeal of a similar nature before the same court; hence the court's hands were tied. After the determination of the issue of ownership by the competent court to do so, Mwandege Ward Tribunal in application No 20 of 2018, any one aggrieved was to find redress from the superior court, through that forum, instead of bringing the issue back to the matrimonial court for redetermination, bringing the noted unnecessary confusion. It follows therefore that, because the re-determination of the matter by the matrimonial court was wrong when the trial court entertained the first appellant and held that the property is his, the subsequent appeal was also a nullity. The appeal no 20/2021 being a nullity, no appeal can lie from it. This appeal is therefore incompetent before me. Based on that, the proceedings, decision and orders of the District Court of Temeke in matrimonial appeal No. 20/2021 are nullified. I also proceed to nullify the proceedings and decision of the trial court of 11/2/2021. Any party who is still interested in pursuing the matter on the ownership of the property in question should do that through a proper forum, that is a land court. Due to the nature of the relationship between the parties, we make no order as to cost. M. P. OPIYO JUDGE 7/3/2023 8