MARATO s/o MATIKU v WANKYO SANAWA 1987 TLR 150 (HC)

 MARATO s/o MATIKU v WANKYO SANAWA 1987 TLR 150 (HC)

Court High Court of Tanzania - Mwanza

Judge Munyera J

18 November, 1987

Flynote

Civil Practice and Procedure - Res Judicata - Appellant files a fresh petition in the grounds B

previously rejected.

-Headnote

At trial, the petitioner sought a divorce decree claiming respondent had left the matrimonial

house for a long time. The court granted the decree. Respondent appealed C arguing it was

appellant who had sent her away for modification. The District Court reversed the Primary

Court's decision. Petitioner delayed for six months to appeal against this latter decision. His

application to be allowed to appeal out of time was dismissed. The appellant then went to the

same primary court and filed the present D petition in the same grounds. The District court

rejected said ground on the basis of res judicata.

On appeal the question is whether this petition is res judicata.

Held: Where grounds relied in the later petition are the same as those dismissed E previously,

then the petition is res judicata.

Case Information

Appeal dismissed.

No case referred. F

[zJDz]Judgment

Munyera J.: The appellant was the petitioner in the Primary Court. He petitioned against his

wife, the respondent for divorce. He claimed that the respondent had left the matrimonial home

since 1981 and sicne then she has not returned. The respondent G denied that she left the

matrimonial home on her own, it was the appellant who had sent her home, that the source of

all this trouble is because she is barren, she has not produced a single child since their marriage

in 1975. The trial court granted a decree of divorce and blamed the respondent for staying away

for such a long time. She appealed H to the District Court which reversed the judgement of the

trial court and dismissed the appellant's petition as res judicata. In turn the appellant brought

this appeal.

This case has a history. In 1981 the appellant filed a divorce petition, Civil Case No. 48/81 same

Primary Court. He alleged that the respondent disappeared from home I since 7.4.81 and up to

1987 TLR p151

MUNYERA J

the time of filing the petition on 21.9.81 she had not returned. The respondent replied A she

had left home with the appellant's permission to find treatment for her stomach ailments which

have prevented her from conceiving a child. The trial court rejected her defence and granted

divorce. She appealed to the District Court, Matr. Appeal No. B 7/82, and won. The Senior

District Magistrate (Mushumbusi) ruled that the respondent had gone for treatment, reversed

the judgement of the trial court and declared the parties as still husband and wife. The

judgement was delivered on 29.5.82. The appellant remained mum till the month of November

1982 when he filed an application in C this court (PC Civil Application No. 29/82) to be

allowed to appeal against the judgement of the District Court out of time. The application was

dismissed on 17.5.84, so the judgment of the District Court held good, the parties continued to

be husband and wife. On 16.12.85 the appellant went to the same primary court and filed this

present D petition the grounds being the same as those he gave in the earlier petition and

which the District Court had rejected. That is why the District Court declared the petition res

judicata. In admitting this appeal the admitting judge posed a question "whether this petition

was res judicata". E

So the issue is whether the present petition was res judicata. The law of marriage is silent

whether a judgment of court dismissing a petition is a bar to any future petition by the same

spouse. In my opinion such judgement may or may not be a bar, depending on circumstances.

If for example, after dismissal of a petition, the spouse reconcile and F resume cohabitation,

later one of them commits a matrimonial offence, the offended spouse can petition for divorce

even if he/she is the same one whose petition was dismissed in earlier case. This is so because

this later petition is a fresh matter altogether. In this particular case since the District Court

dismissed the appellant doesn't G say why but the respondent says she is unwanted, she has

tried her best by asking the CCM and elders to reconcile them but the husband always became

uncooperative. The respondent deserves sympathy, she is barren not self induced but by the act

of God, that is why the husband is no logner interested in her but in his bridewealth. I find the

H grounds relied on this present petition are the same as those dismissed by the District Court

in its Matr. Appeal No. 7/82 and the petition was rightly declared res judicata.

Even if the petition was not res judicata the appeal would still be dismissed. None of I the

parties had called any witnesses in this petition and the trial court dealt with it in a summary

manner.

1987 TLR p152

The appellant's case never even approached the standard of proof required in civil A cases. No

court worthy of the name would have accepted his story. I dismiss the appeal with costs.

B Appeal dismissed.

1987 TLR p152

C