Marato S/O Matiku vs Wankyo Sanawa [1987] TZHC 41 (18 November 1987)


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

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.

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.


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