THE UNITED REPUBLIC OF TANZANIA
JUDICIARY
IN THE HIGH COURT OF TANZANIA
(MOROGORO DISTRICT REGISTRY)
AT MOROGORO
MISC. CIVIL APPLICATION NO. 36 OF 2022
(Arising from Matrimoniai Appeal No. 03 of2022, originating from Matrimonial Cause
No. 06 of2021, District Court of Morogoro)
LINA MALISA MAFWERE APPLICANT
VERSUS
BHAKILANA AUGUSTINE MAFWERE RESPONDENT
RULING
Last court order on: 29/09/2022
Ruling date on: 11/10/2022
NGWEMBE,3.
Una Malisa Mafwere, has moved this court under Order XXXIX Rule
27 (1)(b) of the Civil Procedure Code Cap 33 R.E. 2019 and Rule
38 of The Law of Marriage (Matrimoniai Proceedings) Rules, GN.
No. 136 of 1971, seeking leave of this court to produce additional
evidence In Matrimonial Appeal No. 03 of 2022 pending In this court.
The application Is accompanied by the applicant's affidavit. The
contents of the affidavit Include the need to produce evidences related to
Plot No. 72 located at Mkundl In Morogoro Municipality. That the
documents related to ownership and survey of that piece of land Is under
custody of Morogoro Municipal Director who refused to avail certified
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documents to the applicant in respect to that piece of land. In the
absence of those certified documents, the applicant alleged that the trial
court rejected admissibility of uncertifies photocopied of those
documents.
Tfie applicant further states that, unless this court grants her leave
to adduce additional evidences, she will suffer loss of the maintenance
and division of the jointly acquired property, while having no means of
subsistence.
In turn the respondent resisted this application by filing a counter
affidavit and denied basically all relevant facts.
Upon completion of pleadings and on the hearing date, both
parties were represented by learned counsels. While the applicant was
represented by learned advocate Bartalomew Tarimo, and the
respondent had the legal services of advocate Jovin Manyama.
Advocate B. Tarimo address this court by submitting inter aiia that,
the applicant faced difficulties in obtaining documents from Morogoro
Land Office to prove ownership of plots No. 608 - 682 Block "Y" which
were jointly acquired by the parties during subsistence of their marriage.
He referred to a letter wrote by the applicant to the Land Office,
and the corresponding reply denying to supply those documents. He
prayed that this court has powers to order Municipal Officers to appear
in court and produce original records in respect to those plots of land.
In turn advocate Jovin Manyama objected the application by
referring this court to section 76 (l)(d) of the Civil Procedure Code,
that the section allows this court to take additional evidence, but it is not
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absolute. He cited the case of Idrisa Hayeshi Vs. Emmanuel Elinami
Makundi, Civil Application No. 113/08 of 2020 and other useful
precedents. In general, the cited authorities required the applicant to
demonstrate in clear terms, sufficient grounds upon which the court can
exercise its discretionary powers to call additional evidence.
Further argued that the applicant has not demonstrated any
relevant ground to allow this court to invoke its powers to accept
additional evidences. Likewise, the applicant failed to prove her case at
trial. The decision of the trial court was delivered on 21/04/2022, and
the said letters to Municipal Offices were written on 20/06/2022 while
the judgment was already delivered two months prior. Such letter had
nothing useful to the case which judgement was already delivered.
The counsel for the respondent argued further that, the applicant
was the one who instituted a case before the District Court, she
therefore, ought to have all material facts including the alleged
documents to prove her case. Mr. Manyama condemned this application
to have aimed at filling gaps on appeal contrary to the spirit of law and
justice. Rested by a prayer to dismiss it forthwith.
In rejoinder, Mr. Tarimo reiterated what he submitted in chief and
insisted that, the land registry officers will be required to appear before
this court and produce all necessary documents in respect to plots of
land. Rested to the same prayer that the application be granted.
Considering the rival arguments by both counsels, I find the central
issue for determination in this application is whether this application has
merit both in law and in fact. In answering this question, let me recap on
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the provisions cited to move this court to determine the application. The
contents of Order XXXIX, Rule 27 of CPC is quoted hereunder: -
Rule 27. -(1) "The parties to an appeal shall not be entitled
to produce additional evidence, whether oral or documentary.
In the Court, but If-
(a) the court from whose decree the appeal Is preferred has
refused to admit evidence which ought to have been admitted;
or
(b) the Court requires any document to be produced or any
witness to be examined to enable It to pronounce judgment, or
for any other substantial cause,
the Court may allow such evidence or document to be
produced, or the witness to be examined."
Basically, this provision prohibits production of new evidence at the
appellate stage, except for two circumstances. First - where the court
which passed the decree refused to admit the evidence, which it ought
to be admited. Second- when the appellate court requires any document
to be produced or any witness be examined.
Rule 38 of The Law of Marriage (Matrimonial Proceedings)
Rules provide application of Order XXXIX of CPC to Matrimonial
Proceedings and minimizing confinement to technicalities of procedure
and grounds, with the spirit of avoiding undue delay.
Relevant to the provisions above, the court has already developed a
good number of principles In respect to the cited rules. The Court of
Appeal in the case of Ismail Rashid Vs. Mariam Msati, Civil Appeal
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No. 75 of 2005 (CAT - unrepoited), categorically narrated several rules
of thumb to be followed prior to accepting additional documents on
appeal. Those rules are: -
1) It must be shown that the evidence could not have been obtained
with reasonable diligence for use at the trial;
2) The evidence must be such that, if given would probably have an
important influence on the result of a case, although it need not be
decisive; and
3) The evidence must be such as is presumably to be believed, or in
other words, it must be apparently credible, though it need not be
incontrovertible.
To my understanding these preconditions must be fulfilled in total as
per scenarios provided for in Rule 27, irrespective of whether the move
is suo motuor by an application of either party to the suit.
Testing the factors alluded above with this application, I will first
consider whether the evidence could not have been obtained with
reasonable diligence for use during trial? Advocate Tarimo sought to
prove diligence of her client by referring this court to the letters written
in the correspondence between the applicant and Municipal Director. In
the contrary, advocate Manyama discredited the same as above shown
that no diligence was ever exercised by the applicant. Referring to those
letters, the applicant wrote to the Director on 20/06/2022 and the reply
was on 24/06/2022 just four days from the date the applicant wrote her
letter. On the other side, it was not disputed that the decision appealed
against was delivered on 21/04/2022. Logically and Mr. Manyama was
correct in two aspects, first the letter to the Director Morogoro
Municipality had nothing to do with the judgement which was delivered
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on 21/4/2022. Even if same would be given had nothing to do with the
dispute which was already decided and conclusively settled by the trial
court. Second, the one who instituted the suit in court was the applicant
herein, hence was duty bound to have all relevant evidences to support
her case prior to instituting it in a court of law.
Considering more inquisitively on the trial court's ruling, it is evident
that the applicant herein did not seek to tender any of the alleged
documentary evidences subject to this application rather, she wanted to
tender a photocopy of her own letter and the same referred to different
plots of land, which according to the trial court's records were not
relevant to the case. The mere fact that the applicant attempted to
tender some documents without following the required procedure does
not make this application pass the first test alluded above.
The evidence which the court may allow to be admitted on appeal is
which the trial court refused to admit, but ought to have been admitted.
In this case, the applicant never attempted to tender the said evidence
during trial. It is not known why the applicant failed to seek those
relevant documents before instituting her case. Above all, it is evident
the applicant was represented by an advocate during trial.
I am settled in my mind, the cited provisions do not stand to protect
the indolent to the detriment of procedural laws. The risk of giving room
to a party to fill gaps on appeal in disguise of legal provisions must be
avoided, otherwise it may prejudice the adverse party and compromise
the interest of justice.
Considering the remaining tests, that is test 2 and 3 on the issues
of whether the evidence would have an important influence on the result
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of a case and its credibility by the nature of this matter, I am of the
strong view that the applicant has not established a strong case for it.
Conversant of the spirit enshrined under rule 38 of the Matrimonial
Proceeding Rules, I am comfortable that technicality and delay may
not be occasioned by the course about to be adopted. In respect to this
application, I am satisfied, even if the trial court would have the avenue
of accepting the said documents, if any, which were even not annexed in
the pleadings before the trial court, yet the same would have not
influenced the trial court's decision. In page 2 of the trial court's ruling is
quoted hereunder: -
"If that be the relief, yet the plots mentioned on the intended
exhibit documents reads VMBI LA KUMILIKISHA VIWANJA
VYANGU NAMBA 608 - 682 KITALU T MKUNDIMANISPAA YA
MOROGORO'The Petition for Divorce reads 72 piots(From Piot
No. 618 - 687) situated at Biock T' Mkundi ward within
Morogoro Municipality, these are two different piots. This is a
dear indicator that the petition(er) is not conversant or she is
not knowledgeable with the document"
I have formed a strong opinion that this court in hearing of the main
appeal, can exercise its powers to take additional evidence depending on
the circumstances after revealing other relevant facts under Order XXXIX
Rule 27 (l)(b) and Section 76 (1) of CPC. Section 76 is relevant to be
quoted hereunder: -
Section 76.- (1)"Subject to such conditions and limitations as
may be prescribed, the High Court in the exercise of its
appellatejurisdiction shall have power to-
(a)determine a case finally;
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(b)remit a case for re-triai;
(c)frame issues and refer them for triai; or
(d) take additional evidence or to require such
evidence to be taken"
Depending on the nature of the application, the applicant moved
this court under Order XXXIX, Rule 27 (l)(a), of CPC, which is contrary
to Section 76 (1) as quoted above. When need arise, additional evidence
on appeal may be admitted under section 76 of CPC without seeking
leave of this court under Order XXXIX Rule 27(1)(a) of CPC.
In totality and for the reasons so stated, this application lacks merits
same is dismissed forthwith. Owing to the fact that parties still have the
main appeal pending in this court, it is just and equitable to order each
party to bear his/her own costs.
I accordingly Order.
Dated at Morogoro-^ftthis^l^ *^3y of October, 2022.
OUf>
o
'yO
P, 3, NGWEMBE
/ JUDGE
/•/
^-^11/10/2022
Court; Ruling delivered at Morogoro in Chambers on this day of
October, 2022, Before Hon. 3.B. Manyama, AG/DR in the presence
of Ms. Leah Mwasa Advocate for Applicant and in the Absence for
respondent.
SGD. HON.3.B. MANYAMA| this is a true and correct
copy of the
AG/DEPUTY REGISTRAR
11/10/2022 Deputy Registr^
■dt Morogoro
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