Maduka Jidayi vs Nicholaus Martine (Civil Appeal No. 4902/2026) [2026] TZHC 3117 (12 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SIMIYU SUB-REGISTRY AT SIMIYU CIVIL APPEAL NO. 4902/2026 (Arising from the decision o f Maswa District Court in Civil Appeal No. 27986 o f2025) BETWEEN MADUKA JIDAYI......................................................... APPELLANT VERSUS NICHOLAUS MARTINE ............................................. RESPONDENT JUDGMENT Date o f Last Order:03/06/2026 Date o fJudgment:12t h /06/2026 CHUMA.J Before the Malampaka Primary Court, the respondent sued the appellant claiming a refund of seven heads of cattle worth Tsh. 4,200000/= being the dowry paid in contemplation of marrying the appellant's daughter. The appellant, on his part, evasively denied the claims. In its decision, the trial court observed that the respondent had contracted a valid customary marriage with the appellant's daughter; therefore, he is not entitled to be refunded the dowry. 1 | P a g e Troubled by that decision, the respondent appealed to the Maswa District Court. The District Court found that there was no proof of a valid customary marriage; therefore, the respondent was entitled to the refund of seven heads of cattle paid as a gift in contemplation of marriage hence this appeal. Now that, in pursuit of his right of appeal, the appellant came to this court advancing the following grounds, i. That civil case No. 04/2025 of Malampaka Primary Court, from where the instant appeal to the district Court had its roots is a repetition (Resjudicata) being that the respondent earlier lost the case (Civil Case No. 1/2025) he filed against the appellant on the same subject matter hence the appellate court had no copy of judgement to appeal from the latter case (Civil case No. 4/2025) ii. That the learned appellate Resident Magistrate erred in law and fact in holding that there was no marriage between the appellant's daughter and the respondent, whereas in fact there was a customary marriage. iii. That the learned appellate Resident Magistrate erred in law and fact when he failed to appreciate that the alleged seven heads of cattle 2 | P a g e were not eligible for refund as they were given in contemplation that the respondent will marry the appellant's daughter which he did. At the hearing of this appeal, the appellant was represented by Mr. Masige, learned advocate, while the respondent appeared personally, unrepresented. The grounds of appeal were therefore argued orally as briefly summarized hereunder. Submitting in support of the appeal, the counsel for the appellant abandoned the first ground of appeal and consolidated the 2n d and 3r d grounds and argued them together. Citing Section 41(f) of the Law of Marriage Act, the appellant's counsel argued that the said provision recognizes customary marriage as valid even without formal registration. He therefore submitted that dowry, being part of gifts that are normally paid in contemplation of customary marriage, cannot be refunded if the contemplated marriage is contracted. To support his arguments, he referred to the case of Mohamed Ndwata vs Hamisi Omari [1988] TLR 137 (TZHC); Amon Mwita Gimacha v. Boniface Matiko Marwa (Misc. Civil Appeal No. 000017879 of 2024) [2025] TZHC 228, Section 71 of the Law of Marriage Act, as well as Section 12 (4) of the Judicature and Application of Laws Act. 3 | P a g e He therefore argued that the evidence submitted at the trial court suggests that there was a marriage which was later dissolved by court order on the ground of adultery. He went on by submitting that paragraphs 2 and 3 of the reply to the petition of appeal, which essentially deny the existence of marriage, raise new facts that were never tabled before the trial court for determination. To bolster his submission, he referred to the case of the Tanzania Cotton Marketing Board. In view of his submission, he probed this court to reverse the decision of the first appellate court and uphold the trial court verdict with costs. The respondent, on his part, being a lay person, had not much to submit; he therefore adopted his reply to the petition of appeal and urged this court to find the first appellate court verdict for the refund of the paid dowry as correct. In rejoinder, the counsel for the appellant briefly submitted that since the reply to the petition of appeal contains new factual issues, the same should be expunged. In the course of preparing judgment, the court encountered an anomaly featured in the trial court's proceeding to the effect that the hearing 4 | P a g e was conducted without framing issues. As this matter had not been raised or addressed by either party during the hearing of the appeal, the parties were therefore invited to address the court on whether the omission is fatal or otherwise, and a proper remedy in case it is fatal. Their respective submissions on this matter were as set out hereunder; He admitted that before hearing, issues have to be framed from the pleadings; in the present case, the factual issues had no contention, and that the only issue in dispute was on the refund of the dowry. He cited the case of Maryam Nassor vs ABLA Estate Developement Agency Ltd & Others (Civil Appeal No. 43 of 2022) [2025] TZCA 360 , and submitted that if parties are in agreement with several factual issues there is no need for the court to frame issues; he argued therefore that in the instant case the omission was not fatal as the parties were all aware on the issue which was in controversy. He went on by submitting that it has been held in the case of Eunice Ndelelio Chiume vs NMB Bank PLC (Civil Appeal No. 1587 of 2025) [2026] TZCA 508 that issues must be framed by the court; failure to do so may have the effect of miscarriage of justice. He argued that in the instant application, there was neither miscarriage of justice nor were the parties 5 | P a g e prejudiced by omission to frame issues. He submitted an alternative that, in case the court finds such omission fatal, then the proper order to make is retrial having regard to the oxygen principle. On his part, the respondent, being a layperson, had nothing much to submit, rather than briefly stating that failure to frame issues was fatal. Having carefully considered the rival submissions for and against this appeal, the sole issue for determination is whether this appeal has merit or otherwise. However, before venturing into the determination of the said issue, I find it pertinent to start with the issue raised by the court. There is no gainsaying that the conduct of civil proceedings in primary courts is governed by the provisions of The Magistrates Courts (Civil Procedure in Primary Courts) Rules GN. No. 310 of 1964, which was subsequently amended by GN. No. 119 of 1983 ("The Rules"). Most relevant to the issue arising in the instant appeal is Rule 44 of the Rules, which provides as follows: " 44. At the first hearing o f the proceeding the court shall ascertain from each party whether he admit or denies the allegations made against him by the otherparty and shall record 6 | P a g e all admissions and denials and shall decide and record what matters are in issue." In the instant appeal, as prior stated, this court noted in the trial court's records of proceedings that no issue was framed for determination on the first hearing; instead, the same were introduced in the judgment after hearing the evidence of the parties. For clarity, the relevant part of the trial court's proceedings is reproduced as follows; "TAREHE YA 29/07/2025 Mbele ya JOSEPH C MBWANA N.M KASOMI - Karani Mdai - yupo Mdaiwa - yupo Madai: Ng'ombe 7 wenye thamaniya tsh. 4f 200,00/= za kurudisha mahari Mahakama: shauri inakuja kwaa jiH ya kutajwa. : madai yanasomwa kwa mdaiwa na yeye anasema. Mdaiwa anasema: Si kweli. Mahakama: Mdaiwa amekana madai SGD: JOSEPH C MBWANA HAKIMU MKAZI 29.07.2025 Mdai anasema: sina mashahidi hapa naomba tarehe nyingine. Amri: Shauri itakuwa tarehe 01/08/2025 SGD: JOSEPH C. MBWANA HAKIMU MKAZI 7 | P a g e 2907.2025 TAREHE YA 01/08/2025 Mbele ya JOSEPH C. MBWANA N.M KASOMI - Karani Mda i - yupo Mdaiwa - yupo Madai: Ng'ombe 7 wenye thamaniya tsh. 4f 200,00/= za kurud i sha mahari Mahakama: shauri inakuja kwaajiii ya kusikilizwa. Mdai anasema - nipo tayari kuanza ushahidi wangu. Mahakama: Ushahidi upande wa mdai unaanza." From the extract of the proceedings above, it is beyond doubt that the trial court did not record what matters were in dispute between the parties; instead, it went on with the evidential hearing. Unfortunately, even the first appellate court did not notice this shortcoming and consequently went on to determine the grounds of appeal. When invited to address the court, the appellant submitted that the omission was not fatal, basing their argument on three arguments: first, that parties are not complaining of the omission to frame an issue, second , that parties were well aware of what issue was in controversy, and third , that there was no miscarriage of justice nor were parties prejudiced by such 8 | P a g e omission. On the other hand, the respondent argued that the omission was fatal. Upon perusal of the trial court's records, this court observed from the parties' evidence that even though the appellant evasively disputed the respondent's allegations, it was undisputed that the appellant paid dowry and that after complying with the customary rites, he took and lived with the respondent's daughter, and that subsequently their union was terminated by the court's order. The only point of divergence between the parties was the issue of the refund of dowry. Notwithstanding the foregoing observation, it is the position from the provision quoted herein above that the controversy or consensus between the parties, for the purposes of framing issues, is ascertained from their respective pleadings, particularly the allegations asserted and the responses thereto, and not from the evidence subsequently adduced. In this case, as earlier pointed out the trial court framed issues at the judgment stage as reflected on pages 14 and 15 of the trial court typed judgment and went ahead entertaining them without party's involvement which is a denial of the right to be heard. The above procedure is contrary to the dictates of the position deliberated in the case of Raza Somji V. Amina Salum [1993] 9 | P a g e where the court observed that where the court frames issues suo mottu had to allow parties the opportunity to be heard on the issues, failure of which is an error. The law is settled that omission to frame issues is fatal if it leads to the miscarriage of justice. An omission to such an extent vitiates both the judgment and proceedings of the court. See Twazihirwa Abraham Mgema vs James Christian Basil (Civil Appeal No. 229 of 2018) [2022] TZCA From the above analysis, it is obvious that the trial court's omission to frame issues for determination was prejudicial to the parties, who proceeded to give evidence without being certain of the issues required to be proven. As a result, the parties, being lay persons with no legal representation, failed to adequately address, through their evidence, the issue concerning the existence of a valid customary marriage and refund of the dowry, thereby leaving a material aspect of the dispute insufficiently canvassed before the Court. It is a trite law that the appellate court is duty-bound to ensure proper application of the law by a subordinate court. The apex court in several 10 | P a g e decisions, including Evarist Arobogast vs Republic (Criminal Appeal No. 60 of 2021) [2024] TZCA 348, consistently pronounced itself that where the lower court has not observed the demands of any particular provision of law in a case, the appellate court cannot justifiably close its eyes on such a serious irregularity. In light of the foregoing, I find that the trial court's omission to frame issues for determination is fatal, which vitiates the proceedings and its judgment. Having so determined, this issue conclusively resolves the appeal; I see no need to consider the merits or demerits of the grounds of appeal, as such consideration would serve no useful purpose. Accordingly, this appeal is allowed. Consequently, I quash and set aside the proceedings and decisions of both the trial court and the first appellate court for the reasons explained above. The matter is therefore remitted to the trial court for a fresh hearing before another Magistrate. Owing to the peculiar circumstances of this case, I make no order for costs. It is so ordered. DATED at Simiyu, this 12th day of Jun 2026 W. M. CHUMA JUDGE Court: Judgement delivered in court virtually in attendance of the respondent in person un represented and in absence of Mr. Dudu advocate for the appellant this 12th day of June 2026. 12 | P a g e