L. Fanuel E. Mmpungu vs Frasion F. Mmpungu (Civil Appeal No 2 of 2000) [2000] TZHC 355 (9 June 2000)

i. IN THE HIGH COURT OP TANZ,ANIA AT ARUSHA J U B G M it T MSOFJE 1 J This matter has its background in Matrimonial Cause No.65/95 óf the Urban Primy• Cburt at Arusha. In that cause the respondent had petitioned for divorce0 After a Lull trial the said Court wa satisfied that there was no good ground for ranting the petition and accordingly dismissed the said petition Q It appears tha4 thereafter the parties' differences continueda grow thereby necessitating the petitioner to petition for divorce vide Matrimonial Cause N6.10/98 of The District Court of Arusha. The Diitrict Court did not deter- mine the petition on rneit. ;Instead, in its. Ruling dated 13/12/99 itI&tiat ..th. petition; wa.es .judic.ata. in the reasoning the.. iearne& incipal Pistric. Magistrate the petition cpi,i]4not be . a ,decisi..on made theieon, accordingly on account of. the fact that. it had since been . o.oeo/2

• 2. ., decided vide the aforementioned matrimonial.oause of the Primary Court. In other words, that sinee these wrete same parties and. the iiibjec inatte.r t;' divorce) was the same then the District Court could not be a seIzed with the uecessary jurisdiction to deal with the petition. The appellant is disatisfied by the above Iárisof iThIrict Court and hence thi s appeal. •. In the petitibii of. àa1 there are two grounds"t• wit:- MW "1. That the tal Irincipal District Magistrate erred in Law and in fadt in finding the matter res judicata and equating MatriiUonial causes as other ordinary civil matters whose decision are final and oriclüsLVe.. matrimonial matters depend on the changing clrcumstances • of thematter.: .. . ... . . . - . ?.•.• 2 T.htthe. trial Principal District Magistate erred in Law and in fact in failing to put under consideration the decision of.t.he..Primary Court in Matrimonial Cause No 65/95 whereupon it was decided that the Respondent . efused/a/o.negiected to followthe;Appellant to the District where he now works for gain and that the Rs- ponent was given the chance to change. bt has since then deserted the Appellant reason whih led the Appellant to"fi1a. sh thättrt.• :. Both parties have appeared in person(s) and addressed me on the merits or otherwise of the appeal. For purposes of this appeal, however, I will confine myself to the first ground of appeal only. I beliee that a decision°khe ground will be enough to dispose of the appeal. In the Ruling of the learned Principal District;Magi•strate it will, be clear that he was very much alive to the principle(s) . 6 . . * / 3

3 the matter was d1±e.ct -ly.., and substantially thétse in a former suit and between the same paxtie In order to • appreciate the principle, I hereby quote S09as'follows:- 3t9 No court shall try any suit or issue in which the matter directly and. substantially in issue has been directly and substantially in issue in a former suit between the same rties or between parties under whom they ot of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in wach such has been subsequently raised and has been heard and fina lly decided by such court"0 In the instant case there i nQisput that the tition, or the divorce suit for that matter, was the same as the one filed in the District Court in tue sense that the parties were the same and the subject matter i.e. divorce was the same. The crucial question is whether there was any bar to eitherparty to petition to the Oburt after the dcci- son of t h e. aforesd primary Courts Ix my judgment, there 1P tq .:itiflgU.isiafl ord.in itá1d a 'etition of ttis naire. In an ordinary suit, of cou±se, a party will be estopped from filing a suitinwhich the matter and the ptiesi wre substantialiy,t 1 ie same as in a former suit. 0 0 0 0 0

• 4 -- However, in a matrimonial matter, such as the present one, the would be different in this'sense: If a party, • :".:: petitions for divorce alleging desertion, crualty, adultery etc,, and loses, and then the matrimonial .,wong(s) continue(s) to persist, it would make no sense to eny ,he party who i8 wronged the oppOrtunity to go back to the Cdurt and petition for divorcel SUch re±usal might in ANN fact encourage the party whose condUct is complained of to continue committing or o'ing the matrimonial wrong complained 'it was' the spirit 'of The Law, of Narriae Actj97l to bar a petition based on the above assumption0 It is, no wonder, thereiore, that 'there iz no provision in PhLw"f'Marrjaga. Ac t 1921 'barring a petition based on the above bypothetical example0 It follows, therefore, that a party my fail to prove deseTtion,, adult,ery etc0 but due later, .'to change in circumstances, manage to prove the same at a subsequent petition and thereby moving t.he Court ,°' grant a decree of divpceI This" ,is where'i would agree . with the &ppellant that matrimonial matters may change with '' •' ••'' . . ,... ... . .... . ,,, •••., ,.: _,• circumstances and hence the principle. f res judicata in 'ordinary suits should not b;e, equated 'with matrimonial, causes0 In any caSe, a..look. , ercord show that the decision of the Primary Court was grounded on d sertion and adultery (i0e0 that the ap)Pellant had affairs with other women) whereas in the amended petition to the DistrictCourt there are new and different grounds introduced • and pie.aded there i0e0 cruelty evidenced in'the ellegations that the respondent is 060

5- making all efforts to ensure that the petitioner is moved out of their Kimandolu house, etc. etc. Surely, these are new matters which did not form the basis of:the decision in the petition before the Primary Court. And hence there was a need to have them, alongside the other ground deliberated and decided upon in the subsequent petition before the District Court. Accordingly, it was wrong for the District Court to opine and hold that the 1etition coti.ld not be heard for being res judicata. For the above reasons, the appeal is allowed with the result that the District Court at Arusha is ordered to reconstitute itself and determine the petition in its Matrimonial Cause No.10/98 on merit.. Given the nature of this matter it is my feeling that it will be proper that each party bears its own costs here and below. - It is so ordered accordingly. J. H. MS0F3? J1JDGJ 9/6/2000 Delivered this 9th day of June, 2000 in the presence of both parties J. H. MSOPFE JUDGE 9/6/2000

ad