elly p sanya vs ester nelson 2014 tzhc 2255 8 september 2014

IN THE HIGH COURT OF TANZANIA

AT MBEYA PC. MATRIMONIAL CIVIL APPEAL NO. 2 OF 2013 (From Mbeya District Court Matrimonial Appeal No. 22/2012 original Uyole Primary Court, Matrimonial Cause No. 47/2012) ELLY P. SANYA............................................................APPELLANT

VERSUS ESTER NELSON....................................................... RESPONDENT 19/08/2014 & 08 /09/2014

JUDGMENT NGWALA, J. The 1st point falling for the decision of this court in this Appeal is whether the appellate court ought to have called additional evidence on the fact whether the Appellant was married to another wife, when he did not state or produce that evidence before the trial Primary Court at Uyole. It is in the Appellant’s testimony that he was married to the Respondent in accordance with customary rites in the year 2008. The Appellant further contested the prayer for divorce on grounds that he still loves the Respondent. The Appellant is recorded as having stated the following words in Kiswahili language. l “Mdai ni mke mdogo. Nilioa ndoa ya kienyeji, nilitoa mahari laki tatu elju kumi Tshs. 310,000/= tuna watoto wawili (2). Nakataa maombi. Bado nampenda. Nakataa sikumfukuza bali He nyumba baada ya kuijenga niliomba kuwakabidhi na kuandika wosia kuwa ni ya watoto. Naomba kutoa wosia kama ushahidi. Najua pale tulikaa kwa muda na niliamua kwenda kumjengea Tukuyu. Isitoshe kuonyesha nampenda nilimnunulia meza ya biashara Sokoni Uyole”. According to Order XXXIX Rule 27(1) of the Civil Procedure Code (CAP. 33 R.E. 2002) the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court, but if - (a) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted;

or (b)The court requires any document to be produced or any witness to be examined to enable it to produce Judgment, or for any other substantial cause. (c) The court may allow such evidence or document to be produced, or the witness to be examined” . It is therefore not incumbent on a Magistrate to call for additional evidence on Appeal. More so the argument by the Appellant that “Had the Magistrate allowed the Appellant to adduce additional evidence he would have been in a position to receive or not the Marriage Certificate o f the Applicant with his wife under Section 55 o f 2 8 (g) o f the Law o f Marriage Act, due to the truth that the Respondent was not her wife as there was marriage celebrated in church which was still subsisting, whereby according to the law there was no valid marriage between the Appellant and the Respondent as there was already an existing marriage”; is not valid. This argument is just an afterthought. In this case as I have quoted above, it is admitted and stated clearly by the Respondent himself that theirs was a customary marriage. There was no mention at all of a Christian Marriage in the trial court. It seems to me that if the appellate subordinate court to the High Court was to allow this course, the object of the Law of Marriage Act, (CAP. 29 R.E 2002) would be defeated. This is provided clearly under the provisions of Sections 9,10 and 11 of

the said Act on the meaning of Marriage, Kinds of Marriages and conversions of marriage. The relevant sections in the circumstances of this case, in particular are the provisions of Sections 9 (3) and 11 of the said Act which read as follows “Section 9 (3) - A polygamous marriage is a union in which the husband may, during the subsistence of the marriage, be married to or marry another woman or women. and Section 11 (1) A marriage contracted in Tanzania may be converted. (a) From monogamous to potentially polygamous; or (b) If the husband has one wife only, from potentially polygamous to monogamous. By a declaration made by the husband and the wife that they each of their own free will, agree to the conversion” . In this case, No authority had been quoted to the appellate subordinate court and in this court to show that the statement and or evidence that was adduced in the trial court was insufficient. The Appellant for unknown reasons did not tell the trial court that he had contracted the purported Christian Marriage in 1991. Worse the learned Counsel for the Appellant has not provided any authority that the marriage between the Appellant and the Respondent was invalid simply because there was already the existing Christian Marriage. He has so far not elaborated the circumstances which could invalidate that polygamous marriage. All in all I have no doubt from the proceedings

in this case that the two wives were known to each other. It seems the provisions of Section 11 (1) (b) and 11 (5) of the Marriage Act were complied with as the 1st wife had agreed to such conversion. In the circumstances of this case I hold that the Appellant had not produced adequate or sufficient grounds to support his Application for additional evidence. The testimony of the Appellant himself who had not revealed the truth in court as to the status of his purported Christian marriage 4 which was not in record cannot invalidate his testimony. For this reason the Appellant cannot be heard to impugn the decision of the court which is based on his testimony. It must be understood that in this case there is or was a valid customary marriage between the Appellant and the Respondent as elaborated clearly in the case of Ramadhani Said Vrs Mohamed Kilu (1983) TLR, at pg 309, where Lugakingira J, as he then was held that:- “In this country, where the parties belong to a community or communities which follow customary law, a valid marriage may be contracted according to the rites of customary law. Failure to give Notice of the intended marriage, absence of “shangwe za harusi” or any procedural irregularity in the ceremony are not matters which would affect the validity of such marriage if in all other aspects it complies with the express requirements of the Act.” More so in this

advent of Human Rights and especially the Human Rights of Women and children the arguments by the Appellants cannot hold water. The two lower courts properly held that the Appellant was legally married to the Respondent, and hence he was entitled to a legal divorce. The order of division of the house was also proper in the eyes of the law because the property was a matrimonial house. Furthermore the order for maintenance of the 5 children who were born in that customary marriage was perfectly within the ambits of the law. For the said reasons I cannot fault the decision of the District Court of Mbeya. Accordingly this Appeal is dismissed with costs. A. F. NGWALA

JUDGE 08 / 09/2014 6