IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(IN THE DISTRICT REGISTRY OF ARUSHA)

AT ARUSHA

PC CIVIL APPEAL NO 27 OF 2022

(CF: Civil Appeal No. 01 of2022 from the District Court of Babati at Babati, Emanated
from Matrimonial Cause No. 24/2021, of Babati Urban Primary Court).

ZUBEDA ANASTAZIA ALLY APPELLANT

VERSUS
MUSA FELICIAN SOGHORE RESPONDENT

JUDGMENT

09/04/23 & 26/05/23

BADE, J.

The Appellant above named, being aggrieved by the Judgement of Babati

District Court dated on 7th day of March 2022 and delivered by Hon.
VJ. Kimario, Resident Magistrate Appeals to the High Court of
Tanzania against the aforementioned decision.

The factual account of this appeal lies in a broken-down marital

relationship. The Appellant and the Respondent are ex-husband and wife
who had contracted an Islamic marriage, and found staying together no
longer glamorous after having lived together for 25 years and are blessed
with 6 issues.

This is a second appeal after the Appellant lost in the first appellate court
of the district of Babati having found its way there from the Babati Urban
primary court matrimonial cause. Before the primary court, the appellant
herein sought a divorce decree and division of matrimonial assets. The
Appellant preferred this appeal on the following grounds;

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1. That, the Appellate Court erred in Law and fact by allowing an
Appeal to the reasons that the Respondent's name has differ from

his original name while the Respondent has never denied his name

during the proceeding of the case at the Primary Court hence

reached into wrong verdict.

2. That, the Appellate Court erred in law and fact by allowing an Appeal
for the Respondent to deny his name which he used to conclude
Islamic marriage sometime in 1996.

3. That the Appellate Court erred in law and fact by delivering decision
basing on unfound ground which has never been raised by
Respondent herein in his 9 grounds of appeal which was filed by

himself to the Appellate Court, hence reached into unfair decision.

4. That, the Hon. learned Resident Magistrate of the Appellate Court
erred in law and fact for jeopardizing the Appellant's constitutional
right to be heard resulted into biased decision which is un­
maintainable in the eyes of the law.

5. That, the Hon. Learned Resident Magistrate of the Appellate Court

erred in law and fact by allowing on appeal and departing from the
Primary Court decision basing on unfounded facts, weak, shark and
cooked facts rendering to unfair decision.

6. That, the Hon. Learned Resident Magistrate of the Appellate Court

erred in fact by failing to analyze and evaluate properly the facts in
satisfying himself and as a result delivered a decision that has no
legal reasoning.

'age 2 of ITT
The appeal has proceeded exparte since the Respondent herein refused
service on basis of name discrepancies, which are in fact amongst the
issues as raised in the ground of appeal; having been amply proven that
he was served and even endorsed on the summons saying the names are

not his. On the date when this matter was called for hearing, it was

ordered by this Court that this appeal be argued by way of written

submission as the Appellant is unrepresented lay person. She had thus

engaged the aid of the Tanzania Women Lawyers Association (TAWLA)
and in complying with the said order the Appellant herein has promptly
filed her written submissions.

The Appellant submitted on the 1st, 2nd, 3rd and 5th grounds together

which emphasize that, the Appellate court erred in law and in fact by
allowing an Appeal for the reasons that the Respondent's name is different
from his original name, which names he had actually used previously
while he concluded an Islamic marriage. And this is the same name that

the respondent had never objected to all through the trial proceedings.

She also challenged the Appellate court as erred in law and fact by
delivering decision which is based on an unfound ground and facts which
has never been raised before the trial court.

The appellant urges that it is trite in law that, the matter not raised in the
trial court proceeding cannot be argued or raised in an appellate court,
we are conversant to declare that: the issue of mistake of names was
never raised or argued by the respondent before the Babati Primary Court.

The respondent ought to raise the said issue to the Trial Court. We

buttress this with the Court of Appeal decision of JoeH Mwangambako

’age 3 of 10
vs. Republic Criminal Appeal No. 519 of 2017. Where the court held that,

the matter not raised in the trial court cannot be raised in the appellate
court. Also, in the case of Halfan Rajabu Mohamed vs Republic. HC

of Tanzania, Criminal Appeal Number 34/2020, DAR ES SALAAM, The

court stated inter alia that "it is a settled in law that a matter not raised

and decided in the trial court cannot be raised or decided in an appellate

court.

The appellant is convinced that it was wrong for the first appellate court
to argue that the trial court did not consider while the respondent never
objected to or denied his name before the trial court and in fact, the court
records and judgment are not only genuine in nature but also is self-

explanatory. She buttresses her finding with the principle of the law that
court records are genuine and valid unless impeached by the contrary

evidence as held in the case of Halfani Sudi vs Abieza Chichili [1998]

TLR 527. The court made it dear that there exists a presumption that a
court record accurately represents what actually transpired in .court and it
should not be easily impeached.

On further urging, she contends that it is trite law that the appellate court
cannot admit new evidence which was not decided by the trial court, but
rather it will decide matters and compose its judgment according to the

grounds of appeal and argument of the parties and that the issues of

mistaken names for the respondent were neither raised before the trial

court nor decided.

In submitting for the 4th and 6th grounds, the appellant maintains that
the first appellate court erred in law and facts by not adhering to the rule
of natural justice which is on the right to be heard, and failed to evaluate

age
the facts adduced by the appellant, and as a result, it reached a biased
decision. The appellant claims that not all facts were decided by the first

appellate court but rather a decision was made relying on the grounds of
the respondent while also admitting new facts and evidence; facts which

were not decided by the trial court.

She urges that justice not only must be done but must have been seen to
be done maintaining that the position of law is that every person is
presumed innocent until he/she is found guilty and every person has a
right to be heard, and not only to be heard but his/her evidence must be

recorded, considered, and clearly evaluated in the decision-making

process.

The Appellant thus prays that this Court allows the appeal and the entire
decision of the first appellate court to be quashed and set aside.

Having heard the submission in support of the appeal, I think this Court
is invited to resolve if the appeal has merit.

They have submitted on a new ground which was raised in the petition of
appeal which is their pleadings, and by law, are bound by them. The Court
entertained a matter which was not in the pleading. This is a gross
misdirection, as only the petition of appeal should have directed the court
and the parties while submitting. Meanwhile, the court raised the matter
of name discrepancies suo moto and allowed the appeal on that basis.
Suffice it to say that the District appellate court had no base to do as it
did since matters of facts should not be raised suo moto. Only matters of
law should.
On this basis, I would agree with the Counsel for the Appellant that the
Appellant was denied the right to be heard. The judgment on itself is a

testimony of how he did not accord the parties any hearing. Reading from
the judgment of the first appellate court on p 2 - 3, the following is

reproduced:

"...... As you can see there is a big problem in the court record. The
Appellant's name not only differs as he wishes, (sic)but also the names

are in bad recording. The solution is to make correction on it first before

going on the merits of the case. The only way to cure this problem is to
nullify the whole proceedings. The proceedings of matrimonial cause no
24 of2021 at Babati primary court is hereby declared null and void. The

judgment and decree are quashed and set aside together with all orders.

At this stage and for avoidance of doubt the appellant in this appeal has
no option. She must go back and open fresh case against the appellant
in his proper name, by follow (sic) all necessaries (sic) procedure

according to our law. The reasons are that if we proceed vyith this name

which (sic) disputed by appellant, we will be got (sic) difficulties during

execution time.

Otherwise this appeal by the appellants has got (sic) merits. It is therefore
allowed for the above reasons and not in (sic) its merits. For the avoidance

of doubt, if the parties wished, they are at liberty to start afresh

matrimonial dispute."

So one wonders how did the court arrive at the finding that the appeal
has merit, while obviously, it did not address itself to the grounds of
appeal or at all, other than rising a factual issue suo motuand proceeding

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to determine such with complete disregard to all the other grounds of
appeal. His analysis in the first paragraph above was in pre-emption of all
the other grounds of appeal, with no further desire to determine the

appeal.

In any case, the appellant had signed the petition of appeal himself, so
raising names discrepancies is an afterthought as this point as they should
have been raised at the trial court, and while at it, he appealed to the first
appellate court using the same names, and even if he did, it should have
formed one of the grounds at the District Appellate court, but this was not
the case.

Admittedly, as this Court looked at the records in the trial court file, there
are several names which are purporting to refer to the same person, and
which vary in kind. At the end of the day, it is inconceivable that a husband
and wife who have lived together for at least 25 years would not know
each other's name. The parties at issue are Mussa Felician Soghore which
is the name that the wife used to prefer on the matrimonial proceedings,
and the respondent used to prefer his appeal at the district appellate
court. In essence, he is not disputing these names as his. On the other
hand, the certificate of marriage records him as Musa Sagwere while the

certificate of reconciliation is Mussa ©Felician Soghore. At District Court,

his name are read as Musa Felician Soghore.

It is this Court's finding that these names are all his names, as he has not
disputed the said names during the trial up until the first appellate stage,

and because of the checkered history of their lives in terms of professing

different religious faith, they have both assumed and or dropped certain
names. SM 4 of the petitioner witness at p 12 of the typed proceedings
testified that he was the kadhi who solemnize the marriage of the parties
and he knows the Respondent as Musa Sagware and his wife Zubeida

Iddi, facts which he did not dispute. He also testified that the parties were
initially Muslims who later on denounced the Islamic faith and professed

the Christian faith, to which he says as per the religious rite, the marriage
would dissolve.

Interestingly enough, when the respondent testified, he was recorded on

p 16 of the trial court typed proceedings as Felician Bura Sagware. Same

way, the Court has recorded the Appellant herein while testifying as
Zubeda Ally, see page 5 of the typed proceedings, same as when she

instituted the matrimonial proceedings in Court the Court file reads

Zubeda Anastazia Ally, while the SM4 referred her as Zubeda Idd at p 12
of the typed proceedings. The respondent also did not dispute or
controvert the many names and aliases of the Appellant in any way. It is
worth noting that it is trite law that the Respondent is now estopped from
denying the facts regarding names.

On another note, the trial Court violated mandatory procedure under the
Law of Marriage Act Cap 29 RE 2019 where section 101 directs that in
matrimonial disputes, before petitioning for divorce, there has to be
proved that parties were reconciled at a conciliation board, and a

certificate is issued to that effect.

At the District Court, the Respondent had raised this issue but since the
matter was not heard on merit, the opportunity to determine it was left
to pass. Be that as it may, that issue is fatal because for the court to be

vested with the power to issue the divorce decree, it has to be guided by

the principle that the marriage has broken down irreparably as shown by

age 8 of 10
the fact that the parties have gone through the mandatory reconciliation
process but still had failed to reconcile with the certificate being an exhibit

in evidence that it has failed to reconcile. Otherwise, what would be the

basis for issuing a divorce decree. Notably, the documents are in the trial

Court file but they have not been admitted in evidence nor do they feature

in any way in the typed proceedings of the trial primary court.

On the final analysis, this appeal is allowed and this court orders

i) The judgment and proceedings of the first appellate court are

hereby quashed and set aside.

ii) The Judgment of the trial court is hereby upheld.

iii) It is thus directed that the Trial Court should recall the witness

SMI and admit documents to prove the irreconcilability of the

parties to the matrimonial cause so that the same is reflected in
the proceedings.
iv) There is no order to costs.

It is so ordered.

DATED at ARUSHA on the 26th of May 2023

A.Z. BAlJE
JUDGE
26/05/2023

DELIVERED at ARUSHA on the 28th of April 2023 in the presence of

the Applicant, while the Respondent is absent

 JUDGE
26/05/2023

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