20151202 TZHC Arusha

IN THE UNITED:REPUBLIC I OF TANZANIA IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) AT ARUSHA I PC. CIVIL APPEAL NO. 24 OF 2015 I (Originating from c/f Arusha District Council, Civil Appeal No. 27/2013 originating from Maji ya Chai Primary Court, Matrimonial Cause No. 10 of 2012) I CLEMENSIA THOMAS NYAKAKA ..................................... APPELLANT iVERSUS BANCO MAG EKA ................. ■■ I ■■■ I ■■ I ■■■■■■■■ II ■■ •• I 111 I • • • • • • ■■■■■ •• RES PON DENT Date of last Order: 05/11/2015 Date of Judgment: 27/11/2015: JUDGMENT MASSENGI, J The Appellant CLEMENSIAiTHOMAS NYAKAKA being aggrieved by the I decision of the District Court of Arusha (D.J. Msofe, RM) in Civil Appeal No. i 27 of 2013 dated 13th day of December, 2013 filed appeal before this court basing on the following grounds; 1. The learned Magistrate misdirected herself on the facts and law and arrived at wrong finding that there was marriage between the parties. 1 \. 2. The learned Magistrate erred in law and fact in holding that the house in dispute between the parties was jointly acquired and that the same to be under possession of the respondent. 3. The learned Magistrate erred in law and fact in holding that the child to be under custody of the respondent. 4. The learned Magistrate erred in law and fact when reversed the trial court judgment and quash the orders in it. Before this court the appellant was represented by Mrs. Shakale learned counsel while the respondent was represented by Mr. Koisenge learned counsel. The appellant's counsel prayed this appeal be argued by way of written submission and the respondent's counsel conceded; hence this court granted the prayer. This court ordered the appellant to file his submission in chief by 12/11/2015, the respondent to file reply submission by 19/11/2015 and rejoinder if any to be filed by 23/11/2015. Both parties filed their respective submissions accordingly. Submitting on the first ground of appeal, it was stated that customary marriage is recognized by law in terms of section 10 of the Law of Marriage Act, Cap 29 (R.E 2002). He referred this court to the case of ZACHARIA LUGENDO VRS SHADRACK LUMILANG'OMBA (1897) T.L.R 31 which stated that; ".......... there ought to be evidence of customary law marriage to constitute marriage/ such as handing over ceremony by parents of the boy, or evidence of certain rites recognized by the relevant customary law of that tribe a festival ofpombe or other like ritual". 2 It was further stated that what transpired between the respondent and the appellant is that the respondent ceremoniously paid dowry to the appellant's father but there was no evidence of customary law marriage. She stated that payment of dowry is a mere customary rite which has no legal significant for a marriage neither does it validates a marriage and cited the case the of SALUM ITANDALA VS NGUSA SONDA (1982) T.L.R 333 and RAMADHANI RAMADHANI vs SUNGI ANDALU (1984) T.L.R 158. She therefore maintained that there was no customary marriage contracted between appellant and the respondent and prayed this court to quash and set aside the 1st appellate decision that there was a marriage between the parties. It was further stated that, the 1st appellate court erred as well to hold that there was presumption of marriage. Referring to section 160 (1) of the Law of Marriage Act and the case of JOHN KIRAKWE VS. IDDI SIKO [1989] TLR 215 she contended that the situation which was there between the appellant and the respondent did not met the elements of presumption of marriage. She therefore contended that there was neither presumption of marriage nor customary marriage; hence prayed the first ground of appeal be allowed. Submitting on the second ground of appeal, she stated that the trial court was correct when rejected to grant divorce as there was neither customary marriage nor presumption of marriage between t~e parties and that the appellant proved her ownership of the plot/house in dispute. She further stated that despite disagreement of that decision as it was not among the appellant's prayers before the trial court, the 1st appellate court 3 further made its decision and order on the same issue that the house to be possessed by the respondent rather than the appellant. She contended that, that is an egregious error to make unjustifiable decision on the ownership/possession of the plot/house and prayed this ground be allowed. She submitted on the third ground that the trial court found that since there was no marriage, the child was born out of wedlock; according to customary laws in Tanzania the respondent was required to legitimize the child but the respondent did not do so;. hence the child remains with the mother. She contended that the 1st appellate court reversed the trial court decision on adultery allegation against the appellant while there was no proof of adultery and the child always remains to be with her mother since the father (respondent) did not legitimize her and therefore prayed the third ground of appeal be allowed. In regard to the fourth ground of appeal, it was stated that the 1st appellate court erred in law and fact when reversed the trial court decision because there was unjustifiable and unsound reasons which were given to do so. She therefore stated that this appeal has merits and prayed this court to quash and set aside the judgment and orders of the 1st appellate court with costs. Opposing this appeal, learned counsel started by responding to the first ground of appeal in which he stated that it is the appellant who started to institute a matrimonial case petitioning for divorce before the trial court. He inquired, if at all there was no marriage between them why 4 did she petition for divorce? He contended that the appellant's argument in the first ground of appeal is an afterthought after the appellant failed/lost at the District Court, which put the records clear as she, as well, does not tell why she petitioned for divorce. Referring to the case of ZACHARIA LUGENDO (supra) which ruled for a customary marriage to be recognized, there must be evidence recognized by the rites of that community among them such as festival of pombe or other rites; he contended that, that case is distinguishable with the facts at hand as the evidence on records appreciate the existence of the festival and ceremony to celebrate their marriage and referred the evidence of the respondent and 'exhibit E'. It was further contended that the first appellate Court opined and hold that there was marriage, but even if that is not enough there are ample evidence showing the existence of presumption of marriage depicted under section 160 (1) of the Law of Marriages Act, Cap 29 RE 2002 and that supports the existence of the marriage between parties herein according to the evidence on record. Therefore he stated that the first ground of appeal is devoid of merits worth to be dismissed. Responding to the second ground of appeal, he contended that the appellant faults the first appellate court and subscribe to the position taken by the trial court rejecting to grant divorce as there was neither customary marriage nor presumption of marriage however the trial court proceeded to make its judgment on the next three issues and ruled that the appellant was the lawful owner of the house in dispute for she brought and built the house in dispute. He contended that it is not certain how the trial court enjoyed such a jurisdiction to determined who is the owner of the house in 5 dispute while alleged it was not matrimonial house; since the enactment of the Land Act, Cap 113 RE 2002 and Land Disputes Court Act, Cap 216 RE 2002 all Court of Magistrates under the Magistrate Court Act, Cap 11 RE 2002, inclusive of the trial court, have been ceased with jurisdiction to determine any dispute pertaining to the house or plot/land. It was further stated that the first appellate court rectified the error made by the trial court and find the house to be matrimonial property therefore in terms of section 114 of the Act, Cap 29 RE 2002 worthy for any adjudication by the Court. He contended that, the 1st appellate court proceeded to find that the marriage between the parties to have existed and in terms of section 107 (2)(b) of the Act, the marriage between them has been broken down beyond repair for among others. 'He further stated that as the marriage was beyond repair and divorce was worth to be granted; the court considered Exhibit 'E' and find that the house was jointly acquired and order it to remain to the respondent herein who as well shall have custody of the child. It is his argument that as the house was acquired jointly during substance of their marriage the same is subject to determine as it was done by the first appellate court. In regard to the third ground of appeal, he stated that the first appellate court finding as well supported by evidence on records that there existed customary marriage between appellant and respondent, and even if this was not the case, facts suggest the existence of the presumption of marriage, as such the question if the child was born out of wedlock remains superfluous with no leg to stand. By the circumsta_nces there is no 6 need to legitimize the child Irene as she has never at any point in time taken as illegitimate child. He prayed this court as well to see and order custody of the child to the respondent as the appellant is now married to another man who had, out of adulterous behavior, impregnate her and this was the clear fact at the time she petitioned before the trial court for divorce. On the fourth ground of appeal, he contended that the appellant's counsel failed to submit anything on that ground as such he prayed that ground of appeal be dismissed and this appeal also to be dismissed on its entirety with costs as it is devoid of merits. In rejoinder the appellant's counsel reiterated what was stated in the submission in chief and maintained her prayer for this court to allow this appeal. After going through the submissions of both parties and having examined the records of the lower courts; I will start with the first ground of appeal to the effect that the appellate magistrate misdirected herself on the facts and law and arrived at wrong finding that there was marriage between the parties. It is undisputed fact from evidence on record that the appellant and the respondent had a relationship which resulted of them having a baby girl. The appellant in her evidence on record claimed that there was no marriage between the two. They started cohabiting in 2006 and in 2007 they happened to get a child but there was no any marriage at all. While on the other side, the respondent claimed that there was marriage between the two. They started living under one roof in 2001 and in 2006 he went to introduce himself to the appellant's parents and later on he paid pride price and contracted a customary marriage. The trial court 7 found that there was no marriage between the two as there was neither evidence to establish whether they contracted a customary marriage nor evidence to establish that there was presumption of marriage between the two. On appeal before the District Court the Magistrate found that there was marriage between the two as the evidence show that the respondent paid bride price. She added that even if it could be found that there was no customary marriage between the two, the evidence support that there was presumption of marriage. I beg to differ with the finding of the appellate magistrate on the following reasons; It is certain that customary marriage is recognized in our law; section 10 and 25 of the Law of Marriage Act, Cap. 29 R.E 2002 recognizes marriage contracted under _customary law. But how can you prove that parties contracted a customary marriage? According to the case of ZACHARIA LUGENDO VS. SHADRACK LUMILANG'OMBA (supra), so as to establish customary marriage, among other things; there must be customary ceremony. Mwalusanya, J (as he then was) trying to elaborate how customary marriage should be contracted, he had the following to say; ".......... there ought to be evidence of customary law marriage to constitute marriage/ such as handling over ceremony by parents of the girl to the boy, or evidence of certain rites recognized by the relevant customary law of that tribe like a festival of pombe or other like ritual. " 8 The respondent's evidence show that he paid pride price or dowry but there is no evidence suggesting that there was a customary ceremony after the payment of dowry to officiate their marriage. In the case of RAMADHANI RAMADHANI VS. SUNGI ANDALU (supra) it was stated that; "Payment of bride wealth, even if proved is not evidence of marriage, there must be clear evidence of marriage ceremony. The onus of proving the existence of a marriage is upon the party who alleges its existence. " Basing on the above authorities, since it is the respondent who alleged the existence of marriage b~tween the parties, then the onus of proving the existence of marriage lied on him, and it is not sufficient just to establish that he paid bride price but there must be sufficient evidence to prove that there was marriage ceremony. As I have gone through the records, there is no sufficient evidence from the respondent's side establishing that after payment of bride price there was marriage ceremony as the appellant stated that after payment of pride price the respondent failed to fulfill his promise of contracting marriage between them after the appellant having discovered that the respondent had a wife. That evidence was supported by SM4 Lewis Thomas and SMA Thomas Nyakaka. On that regards, I find that the respondent failed to prove before the court that there was customary marriage between the two and I therefore concur with the finding of the trial court in that aspect. Likely I find that there is no 9 r tangible evidence which establish that there was presumption of marriage between the two. In the case of JOHN KIRAKWE VS. IDDI SIKO (supra) it was stated that; "To constitute a presumption of marriage three elements are necessary. (a) that the parties have cohabited for over two years. (b) that the parties have acquired the reputation of husband and wife (c) that there was no formal marriage ceremony between said couple. " I have no doubt with elements in item (a) and (c) above, but my doubt is with element in item (b). Having gone through the evidence on records, there is no evidence establishing tha.t parties acquired the reputation of husband and wife during their cohabitation. As such even the presumption of marriage did not apply between the two and the parties were just cohabiters. Basing on the above, I therefore find that the first ground of appeal is meritorious and aliowed. In regard to the second ground of appeal, basing on the findings in the first ground of appeal as elaborated above, there was no joint acquired property or matrimonial property as there was neither marriage between the two nor existed a presumption of marriage. But commenting on the finding of the trial magistrate when dealing with the issue of ownership of the disputed house and declare the appellant as the owner of that house, I find that the trial court exercised powers beyond its jurisdiction because 10 since the matter presented before it was a matrimonial cause, the trial court after finding that there was neither marriage between the two nor presumption of marriage, it was barred to deal with the issue of ownership of house after finding there was no married between the two in dispute as it clear the house was not acquired through marriage so as to become matrimonial property as the same is supposed to be dealt with land tribunals. As such the proper way was to direct parties to channel their· dispute over ownership of house to land tribunal and not dealing with it. As such the order issued by the trial Magistrate to declare the appellant as the owner of the house in dispute is null and void and the parties are advised to direct that issue to land tribunals. Coming to the third ground of appeal I agree with the finding of the trial Magistrate that, since there was no marriage between the parties, then the child born out of their relationship was supposed to be legitimized by the respondent so as to claim custody over the child as stated in the case of ZAINA ISMAIL VS. SAIDI MKONDO 1985 TLR 239 that; "....... because parties were never married, the child born to the appellant is an illegitimate child and the respondent cannot claim it now as he never legitimize it...... " As such the 1st appellate court erred in granting custody of the child to the respondent. Basing on the above, I therefore allow this appeal, quash and set aside the decision of the District Court and hereby sustain the decision of the trial court with reservation of an order granting ownership of the 11 disputed house to the appellant and direct the parties to refer the issue of ownership of the disputed house to land tribunals as stated while dealing with the second ground of appeal. Taking into consideration the relationship of the parties. No orders as to costs. Order accordingly. (SGD) F.H. MASSENGI JUDGE 27/11/2015 Judgment delivered in Court this 2ih day of November, 2015 in the presence of Mrs. Shakale for appellant and Koisenge for respondent. Right of further appeal subject to certification on point of leave of this Court is fully explained. (SGD) F.H. MASSENGI JUDGE 27/11/2015 I hereby certify this to be a true copy of the original. DE Words 2967 12