The Roman poet Virgil Tanzlii

IN THE HIGH COURT OF TANZANIA (SUB - REGISTRY OF GEITA)

AT GEITA MATRIMONIAL APPEAL NO. 15086 OF 2024 (Appeal from the decision of the District Geita at Geita, in Matrimonial Appeal No. 09 of 2023) ANETH FREDRICK………………………………………………. APPELLANT

VERSUS DERICK SENGA………………………………………………RESPONDENT

JUDGMENT Date of last Order: 14/08/2024 Date of Judgment: 10/09/2024 K. D. MHINA, J. In the case of Patience Arthur vs. Moses Arthur, Civil Appeal No. J4/19/ 2013(2013) JELR 68194 (SC), the Supreme Court of Ghana, while invoking the wisdom of the Roman Poet Vigil in his Eclogues, where he asserts “Omnia Vincit Amor,” meaning that “love conquers all things,” it held and made a profound statement that; 1 “Alas, the empirical evidence from divorce litigation belies this assertion. It is one of the court's responsibilities to sort out the messy consequences of love stories that have unravelled. This case falls into this category of love stories gone sour”. This second appeal on the matrimonial dispute between Aneth Fredrick and Derick Senga reflects the above holding as the parties are now battling in the courts of law on the issue of divorce. The appellant herein, Aneth Fredrick, brought this appeal against Derick Senga, having been dissatisfied with the decision of the District Court of Geita in Matrimonial Appeal No.09 of 2023, which quashed the decision of the Nyankumbu Primary Court in Matrimonial Cause No.04 of 2023. The brief background to this matter is that the respondent and appellant were husband and wife after celebrating a Christian marriage. They were blessed with two issues of marriage, namely Flaviana Derick and France Derick. 2 At first, the parties enjoyed their

voluntary union, which they intended to last for their joint lives. But later, that voluntary union was interfered with by “turbulences”, which created havoc in their marriage life. That triggered the respondent to refer to their matrimonial dispute before the Kalangalala Marriage Conciliatory Board for conciliation. On 8 November 2022, the Board certified that it failed to reconcile the parties. On 16 January 2023, the respondent instituted Matrimonial Cause No. 04 of 2023 at Nyankumbu Primary Court and petitioned for divorce. Briefly, in evidence, the respondent alleged that the appellant was insulting, mocking, and abusing him. The appellant told him if he loved his mother, he would marry her. Further, the appellant told him he was mentally retarded (taahira), an idiot and an imbecile (zezeta). Therefore, he failed to hold on to the insults and decided to leave the marital home and start a new life elsewhere. On her side, the appellant denied those allegations. She alleged that the respondent changed his behavior, which caused love and peace to diminish and disappear from their marital life. Later, the respondent disclosed to her that he had a relationship with another woman. They were reconciled, but after a while, the situation changed again. 3 After the death of the respondent’s mother, the respondent left, claiming that he was going to process his mother’s inheritance.

Later, he returned, took his properties, left his marital home, and started the process of divorce. In the end, the Primary Court decided that the marriage was not irreparably broken down, and it turned down the petition for divorce. In that decision dated 12 April 2023, the Primary Court held that the respondent decided to shirk responsibilities by leaving the matrimonial home; therefore, he cannot benefit from his own wrongdoings. I quote exactly what was held by the Primary Court (in Swahili) “Itoshe kusema kuwa sababu hiyo haina mashiko kwa mujibu wa sheria. Kinachoonekana ni mme kukwepa majukumu yake na na kutoroka kwenye mji wake wa familia akianzisha mji mwingine. Hivyo mahakama hii haiwezi kumwacha anufaike kwa makosa yake mwenyewe”. Aggrieved, the respondent appealed to the District Court of Geita vide Matrimonial Appeal No.09 of 2023, challenging the decision of the trial Primary Court. Upon hearing the appeal, which was disposed of by way of written submission, the District Court quashed the decision of the trial Primary 4 Court and held that the marriage between the parties was irreparably broken down; hence, it issued a decree of divorce. In that decision dated 23 February 2024, the District Court held that though none of the matters listed under section 107 of the Law of Marriage Act was proved, since love, an essential ingredient in marriage, disappeared between

the parties; the Court could not force them to leave together. It relied on the decision of this Court in John David Mayengo vs. Catherine Malembeka, PC Civil Appeal No. 32 of 2003. Further, the District Court held that even the Conciliation Board failed to reconcile the parties, indicating they were unwilling to continue with their marriage. Thus, since there was no love between the parties to force them to live together was very dangerous. Undaunted, the appellant preferred this second appeal, with two (2) grounds of appeal as follows; 1. The Appellate court Magistrate decided the case based on his own assumption other than the evidence on records.

2. After the appellate magistrate had discovered that the marriage had not broken down irreparably, he erred in law to grant a divorce 5 based on a ground not mentioned in the law. At the hearing of this appeal, the appellant enjoyed the services of Mr. Pauline Michael, learned advocate, and on the part of the respondent, had the services of Mr. Eric Lutehanga, learned advocate. In faulting the District Court’s decision, Mr. Michael submitted that in the Primary Court, it was held that there were no grounds to dissolve the marriage between the parties. But the District Court overturned that decision and held the marriage had broken down irreparably and issued divorce because there was no love any longer between the parties. He explained that he was faulting the decision of the District Court based on the fact that the ground on which the District Court based the grant of divorce was not on the court records; it was an extraneous matter raised by the Magistrate and as per section 107 (2) of the Law of Marriage Act that reason is not one of the grounds for deciding if the marriage has broken down irreparably. In response, Mr. Lutehanga submitted that it was not true that the Magistrate at the first appellate court introduced extraneous matters that were not in the record. 6 At the trial, the respondent and his witnesses testified that the appellant was abusing him by insulting

and humiliating himself and his family from time to time. Therefore, cruelty is not only physical but also could be mentally, as per section 107 (2) (c) of the LMA. Mr. Lutehanga further submitted that the counsel for the appellant based his submission on the conclusion of the District Court decision. However, the District Court analyzed the evidence on record and concluded that cruelty might lead to diminished love. Therefore, there was a ground to grant the divorce. In rejoinder, Mr. Michael submitted that from the records, the only words word uttered by the appellant to the respondent were if he loved his mother more, he should marry her. He explained that that sentence contained normal words for the husband and wife to exchange. She was reminding her husband to love her more than his mother. He concluded by submitting that those words did not qualify to be cruelty and did not qualify to declare the marriage had broken down irreparably. 7 After a thorough review of the record, the impugned decision, and the oral submissions by the counsel, the primary issue in this appeal emerges as; “Whether the first appellate court was proper to issue a decree of divorce.” In its judgement, while overturning the decision of the primary court, which refused to grant divorce, the first appellate court, as already alluded to, gave the following reasons; One, there was no love between the

parties, and forcing them to live together was very dangerous. Two, the Conciliation Board failed to reconcile the parties, indicating they were unwilling to continue their marriage. The Court of Appeal in Tumaini M. Simoga vs. Leonia Tumaini Balenga, Civil Appeal No. 117 of 2022 (Tanzlii) held that; “Be it as it may, we subscribe to the persuasive decision and satisfied that the trial court had properly analysed the evidence and considered that the petitioner and the respondent had lost love with each other and denied each other conjugal rights for more than two years. Also, family, church members and the Kingolwira 8 Reconciliation Board had failed to reconcile them. Therefore, the marriage had broken down irreparably”. The decision which the Court of Appeal subscribed was the decision of this Court in John David Mayengo vs. Catherina Malembeka, PC Civil Appeal No. 32 of 2003, where it was held that; "Marriage being a voluntary union of a man and a woman intended to last for their joint lives. It is the parties themselves who are the best judges on what is going on in their joint lives. A crucial ingredient is love. Once it disappears, then the marriage is in trouble. There is no magic one can do to make the party who hates the other to love her or him. " In the instant appeal, it is clear that when the matter was referred to the Kalangalala Marriage Conciliatory Board for

conciliation, that board failed to reconcile the parties. In its certificate dated 8 November 2022, the Board certified that the reason for the failure was the unwillingness of the appellant to settle the matter. Further, the record indicates that the respondent had already left the matrimonial home after he alleged that he was insulted and humiliated by the appellant to the extent that the appellant told him that he loved his mother and should marry her. 9 This Court in Mwanahawa Iddy Mtili vs. Omary Rajabu Muambo, PC. Civil Appeal No. 59 of 2019, HC, DSM (unreported), was emphasised to preserve the sanctity of marriage; therefore, in divorce proceedings, it is a trite principle that the one who alleges must prove. This is a position also in R vs. R (2004) T.L.R 121, where it was held that; "...legislature has imposed a duty upon Courts of law to see to it that marriages should not be easily dissolved. The rationale is not far to seek families are the foundation of a nation, and it is a truism that strong families breed strong.” However, in the circumstances of this case, where there is evidence of loss of love to the extent that one of the parties deserted the marital home and, at the same time, the board failed to reconcile them, the question is whether the court can force the parties to continue with their marriage. On this, I take refuge from the decision of this Court in

James Zacharia Massamakeri vs. Yusta Isaya Gongo, Civil Appeal No. 25 of 2022 (Tanzlii), when it cited Ahmed Said Kidevu vs. Sharifa Shamte (1989) T.L.R where it held that; 10 "No proceeding may be brought to compel a wife to live with her husband or a husband with his wife, but it shall be competent for a spouse who had been deserted to refer the matter to a Board. Marriage is a voluntary union of a man and a woman, and it is contracted with the consent of the parties. It is intended that the marriage will last for the joint lives of the parties. However, when difficulties arise in a marriage, and one spouse decides to live separately from the other, the court cannot compel them to live together. Parliament, in its wisdom, enacted section 140 of the Law of Marriage Act, which clearly provides that a court cannot compel one spouse to live with the other. The only remedy to a spouse who has been deserted is to commence divorce or separation proceedings." Flowing from above, the nowadays reality and the current development of jurisprudence by the Court of Appeal in the cited case of Tumaini M. Simoga (Supra), it is unsafe to force the married couples to continue to live together irrespective of the parties or one couple to the marriage lost love, one part deserted another and when the marriage conciliation board failed to reconcile the parties. From the above findings, the marriage between the parties in this appeal had broken down irreparably beyond recovery. In the circumstances, I find no reason to interfere with the decision of the District Court. Thus, this appeal is dismissed. 11 Since the appeal arises from matrimonial proceedings, I make no order as to costs. It is so ordered. K. D. MHINA

JUDGE 10/09/2024 Court The right to appeal is fully explained. K. D. MHINA

JUDGE 10/09/2024 12