ABDALLAH IDDI MTITU V

THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CIVIL APPEAL NO. 26622 OF 2023 (Arising from the Judgement and decree delivered on 23/10/2023 by Hon. J.H. Mwankenja, SRM, in Civil Appeal No. 03 of 2023 in the District Court of Kigamboni District at Kigamboni) A. I. M………………………..............................................................APPELLANT

VERSUS J. S. N........................................................................................RESPONDENT

JUDGMENT Date of Last Order: 28/02/2025 Date of Judgment: 14/03/2025 B. E. K. Mganga, J. It is undisputed fact that, in 2007 J.S.N, the abovenamed respondent, contracted Islamic marriage with H.S.N. The respondent and the said, by grace of God, they were blessed with two children. In 2016, the said H.S.N filed Matrimonial cause No. 44 of 2016 in the District Court of Temeke District at Temeke petitioning for divorce. On 31st July 2017 the decree of divorce was granted. It is also undisputed fact that, prior to marrying the respondent, H.S.N married another man called H. N and divorced. It is also undisputed fact that, after the decree of divorce between respondent and the said H.S.N, the latter contracted Islamic marriage with another man called H.A.S but the marriage lasted for five months only. After she has divorced H.A.S, the said H.S.N 1 contracted Islamic marriage with A.R.I. It is said that later on, H.S.N divorced A.I.R and contracted for the second time, Islamic marriage with the respondent. It is alleged that, on 16th March 2021 at the time respondent has travelled upcountry, the said H.S.N obtained summons from BAKWATA and left their home. It is said that, on 25th March 2021, BAKWATA declared marriage between respondent and the said H.S.N as broken on ground that respondent was unfaithfulness and that he was not taking care of her. It is said that, on 27th March 2021

respondent returned in Dar es Salaam but did not find the said H.S.N at home. It is alleged by the respondent that the said H.S.N was not reachable because she blocked his phone. It is undisputed that on 1st July 2021, appellant contracted Islamic marriage with the said H.S.N. It is said that, it came to the knowledge of the respondent that, the said H.S.N is married to the appellant and that, they were living under the same roof as spouse. Based on the foregoing, respondent filed civil case No.77 of 2022 in the Primary Court of Kigamboni District at Kigamboni against the appellant claiming to be paid inter-alia TZS 30,000,000/= on the ground that appellant committed adultery. On 24th May 2023 Hon. G.R. Mbeyu, RM dismissed the claim by the respondent on ground that he did not prove that appellant was aware 2 that the said H.S.N was married to the respondent. Respondent was aggrieved with the said judgment and decree as a result, he filed Civil Appeal No. 3 of 2023 in the District Court of Kigamboni District at Kigamboni. On 23rd October 2023, Hon. J.H. Mwakenja, SRM, allowed the appeal and awarded respondent to be paid TZS 6,000,000/=. Appellant was aggrieved with the judgment and decree of the District Court hence this appeal. In the Memorandum of appeal, appellant raised three grounds namely: - 1. That, the 1st appellate court erred in law and facts by failure to recognize that there was no valid marriage between respondent and H.S.N to enable respondent to claim that appellant committed adultery.

2. That, the 1st appellate court erred in law and fact by failure to take into account that appellant had no knowledge of existence of marriage between H.S.N and the respondent.

3. That, the 1st appellate court erred in law and fact by failure to take into account that appellant had no knowledge of existence of marriage between H.S.N and the respondent. When the appeal was called on for hearing, Leslie Koin, advocate appeared and argued for and on behalf of the appellant while Ms. Sophia Bhoke Rorya, advocate appeared and argued for and on behalf of the respondent. Arguing in support of the 1st and 3rd ground of appeal, Mr. Koin submitted that, respondent failed to prove his case against appellant because, for a person to prove adultery, he /she must prove that there 3 was valid marriage between himself/ herself with the person who is alleged to have committed adultery. He added that, respondent sued the appellant claiming that the latter married H.S.N while she had existing marriage with him and that the said marriage had not been declared by the court to have been broken. Counsel for the appellant submitted further that, H.S.N who respondent claims committed adultery with the appellant had other Islamic marriages with other men as evidenced by exhibit D6. He went on that, in those circumstances, respondent was supposed to prove that marriage with H.S.N was done after previous marriages have been declared by the court as broken but that was not done. Mr. Koin also submitted that, H.S.N was not competent to marry the respondent as per section 38(1) of the Law of Marriage, Cap 29 R.E.

2019. To support his submissions, counsel cited the case of Elizabeth Mohmade v. Adolf Magesa [2016] T.L.R .121 and Jumanne Jingi v. Njoka Kiduda [1984] T.L.R.

53. Citing Jingi’s case(supra) counsel submitted that, a person who claims that adultery was committed had a duty to prove that there was valid marriage. He also cited Rule 1(2) of the Magistrates Court (Rules of Evidence in Primary Courts) Regulations, GN. No. 66 of 1972, to the position that the burden of proof is on who claims the civil wrong. 4 Arguing the 2nd ground, counsel for the appellant submitted that knowledge is a pre-requisite condition before one could be blamed to have committed adultery and cited section 72(2) of Cap 29 R.E 2019(supra) to support his submissions. He further submitted that appellant had no knowledge of existence of marriage between H.S.N and the respondent because they are not residing in the same street or ward. He strongly submitted that, lack of knowledge is a good defence in adultery cases. To support that position, counsel for the appellant cited the case of Daniel Masalu v. Mussa Shadrack [1984] T.L.R. 35 and Jumanne Jingi v. Njoka Kiduda [1984] T.L.R.

53. He added that, appellant married H.S.N after the latter was given Islamic Talaq. He went on that, respondent recognized H.S.N as ex-wife and mother of his two children. With those submission counsel for the appellant prayed that the appeal be allowed. Resitting the 1st and 3rd grounds of appeal, Ms. Rorya, counsel for the respondent submitted that, all the grounds raised by the appellant are new hence appellant cannot be allowed to raise them at this 2nd appellate court. To support her submissions that appellant is barred to raise new grounds at this 2nd appellate court, Ms. Rorya cited the case of EFC Tanzania Microfinance Bank v. DMK Legal, Civil Appeal No. 82 of 2020, HC (unreported) and Godfrey Wilson v. The Republic, 5 Criminal Appeal No. 168 of. 2018, CAT (unreported). Counsel for the respondent strongly submitted that, at the trial court, there was no dispute on validity of marriage between the respondent and H.S.N. She added that, the trial court did not discuss validity of marriage between respondent and H.S.N hence arguments by advocate for the respondent on competence of marriage between H.S.N and respondent cannot be advanced at this second appeal while the same was not raised at the 1st appellate court. She further submitted that, appellant did not appeal or didn’t file a cross appeal at the 1st appeal court on validity of marriage between respondent and H.S.N

because he satisfied by the decision by the trial court. It is wrong for the appellant to file these grounds that were not raised at the 1st appellate court. Counsel for the respondent also submitted that, the 1st appellate court correctly declared that appellant committed adultery because appellant did not prove that marriage between respondent and H.S.N was already dissolved by the court as per section 107(1) and (2) of Cap. 29 R.E. 2019(supra). She submitted further that, during trial, respondent tendered a certificate of marriage between himself and H.S.N showing that the two had Islamic marriage. She added that, it is only the court that had power to dissolve marriage. In her submissions, counsel for the respondent conceded that Talaq from BAKWATA was tendered as exhibit. 6 Counsel for the respondent was quick to submit that, that Talaq is only a procedure before marriage can be dissolved by the court and concluded that, since the marriage was not dissolved by the court, appellant committed adultery. Ms. Rorya strongly submitted that, the provisions of section 38(1)(c) of Cap. 29(supra) cited by counsel for the appellant cannot apply in the circumstances of this appeal because there was a certificate of marriage between respondent and H.S.N. Resisting the 2nd ground of appeal, counsel for the respondent submitted that, at trial appellant testified that he married H.S.N

after the latter had shown to him Talaq from BAKWATA. She further submitted that, appellant had knowledge that H.S.N was the wife of the respondent because BAKWATA has no jurisdiction to dissolve Islamic marriage. She added that, appellant was aware or was supposed to consider that, in absence of the court order, H.S.N was wife of the respondent. She also submitted that, the letter by the respondent (exhibit D9) in which respondent recognized H.S.N as his ex-wife has no legal justification and appellant cannot rely on that exhibit to dissolve the marriage between respondent and H.S.N. Counsel for the respondent concluded her submissions praying that the appeal be dismissed with costs. 7 In rejoinder submissions, responding to submissions that these grounds were not raised at the 1st appellate Court, Mr. Koin counsel for the appellant submitted that, the same grounds were raised and discussed by both in the trial court and the 1st appellate court. He added that, these grounds emanate from the 4th ground of appeal that was raised by the respondent before the 1st appellate court. In his submissions, counsel for the appellant conceded that, in law there is no Islamic Talaq. Mr. Koin was quick to submit that presence of Talaq from BAKWATA is evidence that there was no marriage between H.S.N and the respondent. He also submitted that, the burden of proving that marriage between H.S.N

and respondent was not broken by the court was on the latter because, he is the one who filed the case against the appellant. I have examined evidence of the parties in the record of the trial court and considered respective submissions by both counsel in this appeal. It is undisputed fact that, respondent and H.S.N had a valid Islamic marriage. It is also undisputed by the parties that, appellant contracted Islamic marriage with the said H.S.N. The dispute between the parties is whether, at the time appellant married the said H.S.N, marriage between the latter and the respondent was subsisting. 8 In his evidence, A. I. M (SU1) testified that he married H.S.N after being shown by the latter marriage certificate (exhibit M1) and talaq from BAKWATA (exhibit D8) between respondent and the said H.S.N. On her side, H.S.N (SU3) also stated that she married the appellant after she had received talaq from BAKWATA (exhibit D8). On his part, J.S.N (SM1), the appellant, testified that, when he returned in Dar es Salaam from Dodoma he found talaq from BAKWATA (exhibit D8) and that the said H.S.N was nowhere to be found but later it came to his knowledge that she had married the appellant. Respondent testified further that he did not give talaq (exhibit D8) to the said H.S.N. It is clear from evidence of the parties that, the alleged talaq from BAKWATA (exhibit D8) which both appellant

(SU1) and the said H.S.N (SU3) banks on to prove that marriage between the said H.S.N and respondent was already dissolved, was issued in absence of the respondent. This fact was proved also by evidence of the respondent and S.M (SU2) who testified that he served the summons and the said talaq (exhibit D8) to the children of the respondent because the latter was not present. In other words, respondent did not consent to the alleged talaq (exhibit D8). In short, exhibit D8 was issued but in violation of natural justice principles because respondent was not heard. There is a plethora of case laws that any decision arrived at but in violation of natural justice 9 principles is null. See Attorney General vs The Board of Trustees of The Cashewnut Industry Development Trust Fund & Another, Civil Application 73 of 2015, [2015] TZCA 80, Pili Ernes vs. Moshi Musani , Civil Appeal No. 139 of 2019[2021]TZCA 297, Georgio Anagnostou & Another vs. The Hon. Attorney Genneral & Another, Civil Application No. 210 of 2019 [2019] TZCA 213 to mention but a few. In Musani’s case (supra) the Court of Appeal held: - “…it is a cardinal principle of natural justice that a person should not be condemned unheard… The right to be heard is one of the fundamental constitutional rights… In this country, natural justice is not merely a principle of the common law, it has become a fundamental

constitutional right… The right of a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice.” It is my considered opinion that, the said talaq from BAKWATA (exhibit D8) is null because, it was issued but in violation of natural justice principles. The rush to issuance of exhibit D8 in the absence of the respondent leaves much to be desired. Section 104 of Cap. 29 R.E. 2019 (supra) requires a reconciliation board to summon spouses and give them right to be heard. It was testified by SU2 that summons was served the children of the 10 respondent who was not absent. At the 1st appellate Court, it was submitted on behalf of the herein appellant that respondent was served through his children but opted not to appear before BAKWATA, the reconciliation board hence exhibit D8 was legally issued. With due respect, that cannot be a correct interpretation of the law because section 104(3) of Cap. 29 R.E. 2019 (supra) clearly provides that if any person disobeys the summons of the reconciliation board, the latter must apply to the primary court or district court for summons to

be issued. In the appeal at hand, there was no summons that were issued by neither the Primary Court nor the District Court in compliance with the said provision. In short, the said section requires the parties to be heard. In the appeal at hand, that was not done hence respondent was denied right to be heard. It was submitted by counsel for the respondent that talaq from BAKWATA (exhibit D8) is only a procedure before marriage can be dissolved by the court and that, BAKWATA has no jurisdiction to dissolve marriage between the respondent and H.S.N because that is the jurisdiction of the Court. It was correctly, in my view, conceded by counsel for the appellant that, in law, there is no Islamic Talaq. I am of that view because, in terms of section 10791) of Cap. 29 R.E. 2019(supra), it is the Court which has jurisdiction to declare that the 11 parties have divorced. In terms of section 107(3) of Cap. 29 R.E. 2019(supra), BAKWATA is only a reconciliation board. I associate myself with what was held by this Court (Mnyukwa, J) in the case of Suzana Charles vs Juma Kabelele (PC Civil Appeal 117 of 2022) [2023] TZHC 16699 that: - “It is not true that the provision of section 107(3) of the Law of Marriage Act, Cap 29 R.E 2019 requires the parties who are married according to Islamic form to refer their marriage dispute to BAKWATA for the purpose of reconciliation. The section requires

the parties who contracted their marriage according to Islamic form and wished to dissolve their marriage according to Islamic form, to have first referred their marriage dispute to the marriage conciliation board established by the law and that board must have certified that it has failed to reconcile the parties. The body envisaged under section 107(3) of the Law of Marriage Act Cap. 29 RE. 2019 could be BAKWATA or any other board recognized by the law... Parties who contracted their marriage in accordance to Islamic form may refers their dispute either to BAKWATA or any other board established under section 102(1) of the Law of Marriage Act, Cap 29 R.E 2019.” The said section 107(3) of Cap. 29 R.E. 2019 (supra) provides as hereunder: - 107(3) Where it is proved to the satisfaction of the court that- (a) the parties were married in Islamic form; (b) a Board has certified that it has failed to reconcile the parties; and (c) subsequent to the granting by the Board of a certificate that it has failed to reconcile the parties, either of them has done any act or thing which would, but for the provisions of this Act, have dissolved the marriage in accordance with the 12 Islamic law, the court shall make a finding that the marriage has irreparably broken down and proceed to grant a decree of divorce.” (emphasis is mine). It was submitted by counsel for the appellant that, appellant

had no knowledge of existence of marriage between H.S.N and the respondent because they are not residing in the same street or ward. It is my view that this submission is self-defeating because, in his evidence appellant (SU1) testified that he married the said H.S.N after being shown Marriage certificate between the said woman and the respondent and talaq from BAKWATA (exhibit D8). I have pointed hereinabove that exhibit D8 is not a conclusive proof of divorce because BAKWATA has no power to declare divorce between the spouses. Therefore, before marrying the said woman, appellant was supposed to require that woman to give him declaration of divorce from the court. In fact, the said woman (SU3) was supposed to obtain a decree of divorce from Court as she did at the time she divorced the respondent before marrying him for the second time. Presence of exhibit D8 by itself but in absence of decree of divorce from the court was an indication that the said woman was married to another man hence appellant was aware of existence of a valid marriage. I also find that respondent proved that there was existing marriage between himself and the said H.S.N 13 contrary to what was submitted by counsel for the appellant. In his evidence, appellant (SU1) testified that he was not aware that there was supposed to be decree of divorce from Court. That argument or evidence cannot be held in

favour of the appellant because ignorance of the law is not a defence. That position of the law has been held several times by this court and the Court of the Appeal. See for example the case of Shekhe Salehe vs Republic (Criminal Appeal No. 149 of 2023) [2024] TZCA 297 (2 May 2024) wherein the Court of appeal held that:- “We are not prepared to agree with his lame defence that being a lay person, he did not know where, when and how to raise it. The Latin maxim ignorantia juris non excusat (ignorance of the law in no excuse) is indeed elementary law and still part of our jurisprudence. The appellant cannot therefore be heard to hide under the shield of ignorance of the law, for, that, upon settled law, is no defence against criminal or other proceedings arising from its breach. We find no merit in this ground of appeal and dismiss it.” It was submitted by counsel for the appellant that there was no valid marriage between respondent and H.S.N because there was no decree of divorce between the said H.S.N and other men she married and thereafter issued Talaq from BAKWATA before remarrying the respondent. On the other hand, it was submitted by counsel for the respondent that these are new issues that were not raised at the 1st appellate Court. With due respect to counsel for the respondent. I have 14 carefully read proceedings of the 1st appellant court and find that; this issue

was raised by counsel for the appellant in his submissions. I should point out that, though that issue was raised before the 1st appellate court, it was not raised at the trial court hence it was not proper for the same to be raised at the appellate stage because, usually, the Court will look into matters which came up in the lower courts and were decided. At trial, neither the appellant (SU1) nor H.S.N (SU3) stated that there was no valid marriage between H.S.N and the respondent though there was account by H.S.N as to how she remarried the respondent. In short, there was no issue on validity of marriage between H.S.N and the respondent. It is my view that, had appellant and the said H.S.N intended to raise the issue of absence of valid marriage between H.S.N and the respondent, they could have so specifically stated in their evidence to enable the trial court to decide thereof. Whatever the case, one wrong does not justify the other. More so, there is no complaint by the said men against the respondent. It is my view that reasons for the said H.S.N to leave those men and remarry the respondent are best known to herself and the respondent. It can be recalled that the two are blessed with two children, but I cannot speculate that to be a ground of remarrying. It is my opinion that the 1st appellate Court considered circumstances obtained in this appeal including what was raised by the 15 appellant which is why awarded respondent to be paid TZS 6,000,000/= only instead of TZS 30,000,000/= he was claiming. For all what I have discussed hereinabove, I dismiss this appeal for want of merit. Dated at Dar es Salaam on this 14th March 2025 B. E. K. Mganga

JUDGE Judgment delivered on this 14th March 2025 in Chambers in presence of Leslie Koin, Advocate for the Appellant and Sophia Rorya, Advocate for the Respondent. B. E. K. Mganga

JUDGE 16