Agness Dominick

IN THE HIGH COURT OF THE UNITED REPUBLIC OFTANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA (PC) MATRIMONIAL APPEAL NO. 10 OF 2023 (Arising from Matrimonial Appeal No. 5 of2022 District Court of Karagwe; Originating from Matrimonial Cause No. 8 of2022 Kayanga Primary Court) AGNESS DOMINICK................ .............. ........... .............. ..... APPELLANT

VERSUS DOMINICK ALPHONCE............................. RESPONDENT

JUDGMENT 16th and 29th April, 2024 BANZI, J.: In July, 2022, the appellant instituted matrimonial cause before Kayanga Primary Court (the trial court) against the respondent seeking decree of divorce and division of matrimonial assets basing on the customary marriage claimed to be contracted in 2013. At the trial, the appellant contended that, they were married under customary rite in 2013 and they were blessed with one child. However, in 2021 their marriage turned sour and the respondent ordered her to leave his house. Amicable reconciliation bore no fruits hence, she filed the case at the trial court seeking for divorce. It was also in her evidence that, during the subsistence of their marriage, they obtained 3 acres of land, 8 chicken, 1.0 rabbits, a TV set, and other house utensils. She alleged that she still loved Page 1 of 8 her husband but the respondent chased her away and has been discriminating her. On the other hand, the respondent denied to have married the appellant contending that, they were just lovers and, in their love affairs, they were blessed with one child aged 8 years. He denied to have obtained any joint property with the appellant. His witness (SU3) claimed that, the parties had been living together for almost five years but they lived as lovers; there was no legal marriage between them. He further stated that, he was summoned at the Ward Tribunal to

reconcile the parties and they reached into consensus that, the respondent had to give the appellant a portion of land for her to cultivate for their child. After receiving the evidence of both sides, the trial court despite being satisfied that, the marriage between the appellant and respondent falls under the provisions of section 160 (1) of the Law of Marriage Act [Cap. 29 R.E. 2019] (the LMA), it went further and concluded that, there was valid marriage between the parties. Thereafter, it granted a decree of divorce and ordered the respondent to pay the appellant Tshs.2,000,000/= as compensation for the improvement she had made to the land that was obtained during subsistence of the respondents first wife. The respondent was also ordered to provide maintenance to their child. Aggrieved by that Page 2 of 8 decision, she unsuccessfully appealed to Karagwe District Court (the first appellate court) where it quashed and set aside the decision of the trial court and held that the marriage between the parties had not broken down beyond repair to attract issuance of decree of divorce. It further advised the parties to resume their relationship after settling their misunderstandings. Still aggrieved, the appellant filed petition of appeal before this Court containing three grounds thus: 1. That, the learned Magistrate erred in law and in fact when failed to discuss the raised

ground of appeal presented before the Court; 2. That, the learned Magistrate erred in law when failed to invite parties to address the court on the issues he invented, discussed and decide alone; the issues of "whether the marriage was broke beyond repair"; 3. That, the trial and appellant Court (sic) erred when failed to note that the appellant deserved an order of distribution of matrimonial assets being the respondent's wife. At the hearing of this appeal, the appellant appeared in person unrepresented whereas, the respondent enjoyed the services of Mr. Samwel Angelo, learned Advocate. Page 3 of 8 When the appellant was invited to amplify her grounds of appeal, she submitted her grounds in writing and prayed to adopt it as her oral submission. Basically, in her brief written submission, apart from reiterating her three grounds, she blamed the first appellate court for not considering her efforts towards development of farm measuring 2.5 acres by clearing and cultivating. According to her, she deserved to be given the farm in question. She therefore prayed for this court to allow her appeal and uphold the decision of the trial court. Responding to the grounds of appeal, Mr. Angelo argued that, the court decided all grounds of appeal that were lodged before it. He further submitted that; it was proper for the first appellate court to determine whether the marriage was broken

down irreparably before making its decision. Concerning distribution of matrimonial proprties, Mr. Angelo insisted that, before the court orders distribution of matrimonial properties, there must be evidence to prove that, the properties were acquired jointly during subsistence of marriage. However, the appellant did not produce any evidence showing that, the parties acquired properties jointly for them to be distributed pursuant to section 114 of the LMA. According to him, the farm in question was acquired prior to the parties' union, thus it is not a matrimonial property. He insisted that section 114 of the LMA does not Page 4 of 8 provide for the spouse to be compensated after divorce. Hence, he prayed for the appeal to be dismissed for want of merit. In her brief rejoinder, the appellant contended that, before the trial court, she adduced evidence on how she contributed to the farm in question, hence the farm has to be distributed, Having considered the submissions from both sides and having perused the records of the lower courts, the issue for determination is whether the appeal is merited. After a thorough perusal of the records of the trial court, I find it pertinent to determine whether the trial court was proper to grant the divorce after finding that, the marriage between the appellant and the respondent falls within section 160 (1) of the LMA. In her evidence,

the appellant contended that, they contracted customary marriage in 2013. This fact was denied by the respondent who claimed that, the appellant was just her lover. It is trite law that, to constitute marriage under customary rites, there must be evidence to that effect, such as handing over ceremony by parents of the girl to the boy, or evidence of certain rites recognised by the relevant customary law of that tribe like a festival of pombe or other like ritual. See the case of Zacharia Lugendo vs Shadrack Luniilang'omba [1987] TLR 31. However, in the matter at hand, there was no evidence either Page 5 of 8 from the appellant or her witnesses (SM2, Mursin Athuman, SM3, Faustine Kasenene, and SM4 Leonida Laurent) establishing how the alleged customary marriage was contracted. Conversely, the evidence of SM2, SM3 and SM4 established presumption of marriage as they claimed that, the respondent and 'the appellant were living as husband and wife for more than five years. Since there was no proof of formal marriage between the appellant and the respondent, the trial court was right to find that, the relationship between parties falls under the ambit of section 160 (1) of the LMA. Nevertheless, after finding that, the trial court erred to grant the divorce because as a matter of law, courts have no power to grant decree of divorce under the presumption of marriage. Pursuant to

section 160 (2) of the LMA, the trial court had power to grant such other reliefs which are granted subsequent to dissolution of marriage, including custody and maintenance of children as well division of matrimonial properties. Although the District court of Karagwe as the first appellate court was right to re­ evaluate the evidence on record and come up with its own finding, it was not proper for it to determine whether the marriage was broken down irreparably because, that is the condition precedence for granting decree of divorce, which was not the case in this matter as, there was no formal Page 6 of 8 marriage between parties for them to be eligible to be granted the decree of divorce. Concerning the issue of division of properties that were acquired jointly, the court has to consider among other things, the extent of one's contribution towards acquisition, upkeep and improvement of the property in question. It is settled law that, in resolving the issue of extent of contribution, the court will mostly rely on the evidence adduced by parties to prove such contribution. See the case of Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo [2020] TZCA 31 TanzLII. According to the evidence before the trial court, the appellant stated that, when she started to live with the respondent, he gave her the forest which she cleared and planted bananas to feed their child. With such

clearance, impliedly, she put her efforts to develop it hence, deserving equal distribution of that land. What I gather from the evidence of both parties, the farm in question was acquired by the respondent prior to their union as rightly observed by the trial court rightly argued by Mr. Angelo. However, it is also on evidence that, during the subsistence of their union, the farm in question was cleared and cultivated by the appellant. Therefore, it is the considered view of this Court that, the respondent has contributed towards the improvement of the farm in question. Thus, she deserved a share from her efforts and in the Page 7 of 8 considered view of this court, the amount of Tshs.2,000,000/= ordered by the trial court was fair in the prevailing circumstances of this matter. For those reasons, I partly allow the appeal by quashing and setting aside the judgment and decree of the first appellate court. Equally, the order of trial court which granted the decree of divorce is quashed. On the other hand, I uphold the order of the trial court directing the respondent to pay the appellant Tshs.2,000,000/= as her share towards the development of the farm in question and maintenance order of their child. Owing to the nature of the matter, I make no orders as to costs. I. K. BANZI

JUDGE 29/04/2024 Delivered this 29th day of April, 2024 in the presence of the appellant in person, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA and in the absence of the respondent. Right of appeal duly explained. I. K. BANZI

JUDGE 29/04/2024 Page 8 of 8