Yohana Sanga vs Yokobeth Simon Sanga (Civil Appeal No. 747 of 2025) [2026] TZCA 543 (12 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A., FELESHI, J.A. And NANGELA, J J U CIVIL APPEAL NO. 747 OF 2025 YOHANASANGA ........................................................................APPELLANT VERSUS YOKOBETH SIMON SAN G A......................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Iringa) (Laltaika, J.^ dated the 28th day of March, 2024 in DC. Matrimonial Appeal No. 03 of 2023 JUDGMENT OF THE COURT 27th April & 12th May, 2026 MKUYE, J.A,: The parties herein were married in 1966 having contracted their marriage at Makete District under Christian rites. The marriage was however dissolved on 14th January, 2022 by Makete Primary Court at Lupalilo. Although the marriage legally ended, there was no determination on distribution of matrimonial properties at that time. Some years later, the respondent petitioned for the division of matrimonial assets at the Primary Court and upon her request, the case i was transferred to Njombe District Court vide Matrimonial Cause No. 1 of 2007. In the said matter, the respondent claimed a share in various properties including houses and motor vehicles together with a portion of the business profit generated from 2002 until the date of judgment. The appellant maintained that there was no evidence to prove existence of such properties. Upon hearing the parties, the District Court dismissed the respondent's petition as it agreed with the appellant that since they were in long separation, there was no joint efforts made and found that she failed to prove the existence of the listed properties. However, on appeal, the High Court reversed the decision. It ruled out that there was no legal decree of separation, meaning that the marriage (and the obligation of joint effort) continued until 2002. The High Court Judge further determined that domestic duties and farm work constituted valid contribution to matrimonial assets. In the end, the High Court awarded the appellant a 50% share of all matrimonial properties proved to exist during the entire period of marriage. However, the matter did not end there. There was an issue as to which proper court to execute the decree relating to the division of matrimonial properties. Through Misc. Civil Application No. 7 of 2016, 2 Shangali J. (as she then was) ordered the Court of first instance (Njombe District Court) to execute the decree. It would appear, the execution of the decree failed as the appellant pursued numerous applications in court to block the execution to be carried out. On 18th October, 2022, the respondent filed Matrimonial Cause No. 02 of 2022 at the District Court of Njombe claiming TZS 200,000,000.00 being rent arising from Matrimonial Cause No. 1 of 2007. The trial magistrate dismissed the suit on the ground that it was time barred. Dissatisfied by that decision, the respondent lodged Matrimonial Appeal No. 03 of 2023 at the High Court to challenge the lower Court's dismissal. The respondent argued that the trial court failed to consider that she was unable to take execution steps promptly because of the appellant who had been continuously lodging appeals and applications blocking the process. On 28th March 2024, the High Court Judge (Lailtaika, J.) allowed the appeal and ordered the Matrimonial Cause No. 02 of 2022 be determined on merit. Aggrieved by the High Court decision, the appellant has lodged this appeal to this Court on one ground of appeal as follows: 1. That, the composed judgment by the first appellate court is tainted with illegality in that the Hon. Judge failed to address properly the grounds o f appeal and to consider party's 3 submission which were the gist of the appeal and indulged into discussing the history o f different cases referred in the appeal in question, hence arrived to an impugned decision When the appeal was called on for hearing, Mr. Innocent Kibadu, learned advocate appeared representing the appellant whereas the respondent had the services of Mr. Victor Mkumbe, also learned advocate. Both learned counsel opted to adopt their written submissions they had filed earlier on without more. Expounding the sole ground of appeal through his written submission, the appellant contends that the High Court failed to address properly the grounds of appeal lodged by the respondent in line with the parties' written submissions. That, instead of addressing the appellant's submission, the High Court discussed cases referred to by the respondent showing the history of those cases in relation to the appeal before it and came up with the impugned decision. It was further argued that, the law requires the courts in composing judgments to show points of determination be it in a trial, appeal or revision. The appellant has referred us to the case of Geita Gold Mining Limited v. Joachim Kitwala Walwa, [2025] TZCA 21 in which the Court insisted, on among others, the higher or appellate courts to address the issues raised in the grounds of appeal or revision and make reasoned decisions thereon. The appellant went on submitting, while referring to the case of Nyakwama Ondare @ Okware v. Republic, [2021] TZCA 592, that failure to consider appellant's grounds of appeal is a fatal irregularity which renders the first appellate court's judgment a nullity and that the first appellate court can resolve the complainant's grounds of appeal either separately or jointly depending on the circumstances of each case. It was further argued that, failure to consider the grounds of appeal and party's submission in the judgment, either separately or jointly amounts to condemning the party's right to be heard on his complaints he raised as was held in the case of Bahati Ludoviko v. Republic, [2025] TZCA 76. In this case, it was argued, much as the High Court Judge narrated what was submitted by the appellant, he did not address the grounds of appeal or consider the submissions thereof which in essence denied the appellants' right to be heard. In the end, the appellant implored the Court to find that the appeal is merited and allow it and thereby quash and set aside the High Court decision. In response, the respondent, through her written submission contended that the appellant's complaint that he was condemned unheard is not tenable as the High Court Judge ordered the parties to argue the appeal by way of written submissions according to the schedule that was set out. In any case, the respondent was of the view that, the High Court Judge properly dealt with the appeal before him as shown at pages 105 to 116 of the record of appeal. She, also, denied that the High Court Judge did not consider the written submissions of the parties. In this regard, she urged the Court not to step in to the first appellate's courts shoes and dismiss the appeal for lack of merit with costs. We have dispassionately considered the sole ground of appeal and the rival submissions from both sides. We think, the major issue for our determination is whether or not the first appellate court in Matrimonial Appeal No. 03 of 2023, considered the grounds of appeal which were fronted before it. As it can be decerned from the record of appeal at page 105, it is apparent from the judgment of the first appellate court that the appellant had raised three grounds of appeal as follows:- "1. That the trial court erred in iaw and fact in dismissing the Matrimonial Cause No. 2 of 2022 allegedly for being time barred without considering relevant factors. 2. That the trial court erred in iaw and fact for failure to consider that the appellant could not take any action while the respondent had lodged a notice o f appeal. 3. That the trial court erred in law and fact in dishonouring the sound decisions o f the three High Court Judges that the person to blame in this matter is the respondent and not the appellant for the alleged "delay" to start execution proceedings" We have critically examined the impugned judgment. What is gathered is that the grounds of appeal raised by the appellant were not addressed by the first appellate court. It is crystal clear from the record that the High Court Judge summarised the submissions from both sides, from page 107 to 110 of the record then, he concentrated much in reasoning on the manner the matter did not come to an end for almost two decades and that the advocate for the appellant was unethical for deploying delaying tactics to the detriment of the respondent not to execute the decree and thus failing to meet the end of justice.( See: pages 110 to 115) The issue of failure to determine the grounds of appeal and its effects has been discussed in numerous cases. Essentially, such omission 7 renders the judgment concerned a nullity as the omission places the other party to unfair trial and adequate hearing. This Court had an occasion to discuss a similar issue in the case of Geita Gold Mining Limited (supra), where it quoted the case of Nyakwama s/o Odare @ Okware (supra) and stated as follows: "... that failure to consider appellants ground o f appeal was a fatal irregularity rendering the first appellate's judgment court a nullity. In this regard, we wish to emphasis that though it is not the duty o f the first appellate court to resolve the issues as framed by the court\ yet it is expected and bound to address and resolve the complaints in the grounds of appeal either separately or jointly depending on the circumstances o f each case/' As to the consequences of failure to address the grounds of appeal and to consider the submissions of the parties in judgment the Court pronounced itself that it amounts to condemning the party's right to be heard. On this, we need to reiterate what we stated in the case of Babati Ludoviko (supra), where we stated that:- "Flowing from the guidance provided in the cited authorities above, having determining that the first appellate court failed to consider various grounds o f appeal, it follows that the appellant 8 was denied the right to be heard properly on some o f his complaints which he raised in the grounds o f appeal." Also, in the case of Simon Edson @ Makundi v. Republic [2020] TZCA 1730, when the Court was confronted with akin scenario, it stated as follows:- "... the appellate court is bound to consider the grounds o f appeal presented before it and in so doing, need not discuss all of them where only few will be sufficient to dispose of the appeal. It is also necessary for the first appellate court to re-evaluate the evidence on record before reaching to its conclusion. With respect ; the impugned judgment fell far below the required standard and for that reason it was not a judgment known in law. It was a nullity. For the stated reasons, we invoke our revisional powers under section 4 (2) [now section 6 (2)] of the AJA and nullify the purported judgment" [See also: Mathias Joseph v. Republic, [2024] TZCA 825.] Basing on the above cited authorities, we are satisfied that, failure by the first appellate court to consider grounds of appeal and the parties submission rendered the High Cort's decision a nullity. Moreover, it amounted to denying the appellant's right to be heard properly. 9 With the foregoing, we allow the appeal. We further invoke our revisional powers bestowed on us under section 6 (2) of the AJA and nullify and quash the purported judgment of the High Court. We remit back the case file to the same High Court for recomposition of a fresh judgment by a different Judge. It is so ordered. DATED at MBEYA this 11th day of May, 2026. R. K. MKUYE JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered Virtually this 12th day of May, 2026 in the presence of Mr. Innocent Kibadu, learned Counsel for the Appellant Mr. Victor Mkumbe, learned Counsel for the Respondent and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the original. 10