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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IN THE MOROGORO SUB REGISTRY AT MOROGORO PC MATRIMONIAL APPEAL NO 19 OF 2023 (Appeal from the decision of the District Court of Ulanga at Mahenge in Matrimonial Appeal No 1 of 2023, Originating from Ulanga Primary Court Matrimonial Cause No 10 of 2022) BETWEEN FRANK FAUSTINE MKUYA APPELLANT VERSUS ROSEMARY LYATONGA SWAI RESPONDENT JUDGMENT MRUMA,J This Is a second appeal. In VIgol Primary Court of Ulanga at Ulanga the Appellant Frank Faustina Mkuya (the petitioner therein) sued the Respondent Rosemary Lyatonga Swal In Matrimonial Cause No. 10 of 2022 claiming for the following rellefs:- 1. That a decree of divorce be Issued; 2. custody of their two children be awarded to him and; 3. For division of matrimonial assets. Page 1 of 13 To ease the understanding of the context of the matter It is apt to present albeit briefly its background as revealed by the evidence adduced during the trial. The parties herein lived together as husband and wife for about 20 years. There were no formal marriage. Their union was blessed with two issues namely Frank Frank Faustina who was 18 years old in 2022 and Florence Frank who was 12 years old in 2022. Their relationship started to get sour in October 2020 when the Respondent went for an online course without disclosing to the Appellant where the said course was held. On her return, the Respondent told the Appellant that she had contracted a civil marriage with another man. This made their relationship more difficult. The Respondent asked the Appellant to take his stuffs and leave the house. Problems continued and the Appellant referred their dispute to various local authorities including the Ward Tribunal which could not reconcile them and hence reference of the matter to the court. After hearing the parties' the trial primary court found that there was no marriage between the parties and therefore decree of divorce Could not be issued. Regarding matrimonial assets, the trial court found that the Appellant had no contribution in the acquisition of any property acquired during their relationship. On the custody of the two issues of their Page 2 of 13 relationship, the court considered the wishes of the children and put them in the custody of their mother (i.e. the Respondent). The decision of the primary court didn't amuse the Appellant. He appealed to the District Court which upheld the findings and decision of the trial court. The first appellate court held that on the evidence on record, there was no proof that the parties lived under one roof to the extent of establishing a presumption of marriage between the parties. The District appellate court also held that the Appellant failed to prove that he contributed to the acquisition of any property. The court concluded that the assets mentioned in the Appellant's evidence are not matrimonial assets. Aggrieved by the decision of District appellate court, the Appellant has appealed to this court on the following grounds:- 1. That, the District Court erred in law and fact for failure to re interpret and re-analyse the evidence on record hence which led to miscarriage of justice; 2. That, the District Court erred in law and in fact to deliver judgment based on re analysis [sic!] of weak evidence of the Appellant; Page 3 of 13 3. That both the first appellate court and the trial court erred In law and fact to deliver judgments without evidence that the Appellant was a mere lover of the Respondent; 4. That, the District appellate Court erred In law and In fact for failure to recognise the time the Appellant and Respondent lived together and the child they had together. On those grounds the Appellant prayed this court to allow his appeal quash and set aside the judgments of lower courts. By consensus, this appeal was argued by way of written submissions. The Appellant's submissions were drawn and filed by Ms. Josephine Mbena learned advocate while the Respondent's submissions were drawn and filed by Michael Michael ChamI also learned advocate. Submitting In support of the first ground of the Appellant's appeal, Ms Josephine submitted that the District Court failed to re-evaluate the evidence on records as a result of which It led to a miscarriage of justice. The learned counsel contended that the evidence on record was very clear that parties lived as husband and wife for almost 20 years and were blessed with two children, but In Its judgment the district court wanted evidence of formal marriage while the couple were not formally married. Page 4 of 13 Submitting with respect to the acquisition of what was stated as matrimonial property, the learned counsel contended that the district appellate court misdirected itself on the issue of contribution and acquisition of matrimonial property by disregarding the evidence of the Appellant which was to the effect that the couple bought a piece of land from one Mzee Mzenga on which they built a house and that the Appellant contributed Shillings 200,000/= towards the purchase price of that land. Submitting in support of an assertion that parties' lived together as husband and wife for over twenty years, it was the learned counsel's submission that the evidence of the Respondent to deny that assertion was weak to warrant judgment in her favour. The learned counsel submitted that there was evidence to the effect that the Appellant used to go out and return therefore courts below ought to have found that the two were living under the same roof because there was no evidence that the Appellant was living elsewhere. The learned counsel submitted that it was wrong for the two courts below to believe the evidence of the Respondent which was full of contradictions and confusions regarding their relationships. The learned counsel submitted further that there was no need to require contribution of the appellant in acquiring matrimonial property. Page 5 of 13 Regarding the and 4^^^ grounds, the learned counsel submitted that the trial and the district appellate courts erred in law and in fact as they failed to recognise and appreciate the period of time the couple lived together. Responding to the submissions of the counsel for the Appellant, counsel for the Respondent contended that the district appellate court properly re-evaluated and interpreted the evidence adduced at the trial court and reached a just decision of the matter. The learned counsel submitted that the proceedings of the trial court speak themselves as it is clear that there is undaunted evidence of the Respondent to the effect that the Appellant was her mere boyfriend and they were not living under the same roof therefore there cannot be a presumption of marriage. According to the learned counsel taking into consideration the fact that the assertion that the Appellant was a mere boyfriend of the Respondent, a fact which were not disputed by the Appellant, the courts below were right to hold that there was no presumption of marriage and acquisition of matrimonial property. According to the counsel for the Respondent staying together as husband and wife for a long period does not necessarily warrant spouse to be entitled to distribution of what is considered to be matrimonial assets. The learned counsel contended that in this case the Appellant does not qualify to be Respondents' husband since they were not formally Page 6 of 13 married and even their relationship does not fall under the presumption of marriage. He said that the Appellant's evidence regarding his relationship with the Respondent was very weak and could not establsih how in such weak relationship he contributed to the acquisition of assets he claimed to be matrimonial property. This being the second appeal, court will not interfere with the concurrent findings of facts by the courts below unless there is a misapprehension of evidence by misdirection's or non-directions or when it is clearly shown that there has been a miscarriage of justice or violation of some principles of law or procedure. This position was restated in a number of cases. For instance in the case of Yosiala Nicholaus Marwa & 2 Others v. Republic, Criminal Appeal No. 193 of 2016 , the Court of Appeal held that: "Where there are misdirections and non-directions on the evidence, a court of second appeai is entitied to iook at the reievant evidence and make its own findings offact." Thus, the second appellate court may interfere with findings of fact where it is evident that the two courts below misapprehended the evidence or omitted to consider available evidence or have drawn Page 7 of 13 wrong conclusions from the facts, or if there has been misdirection or non-directions on the evidence. In the present appeai, it appears the Appeiiant is not contending the issue of non- existence of marriage between him and the Respondent. Similarly it is evident from both the grounds of appeai preferred and submissions made to this court that the issue of custody of the issues of their relationship is not very much contested too. The contentious issue between the parties is the division of what the Appeiiant considered as matrimoniai properties. Unfortunateiy, the term matrimoniai assets or property, is not defined under the Law of Marriage Act [Cap 29 R. E. 2019], however from the definition of the term matrimoniai home defined under section 2(1)(b) of the Act which defines matrimoniai home as a buiiding or part of a buiiding in which the husband and wife ordinariiy reside together, the definition of matrimoniai assets or matrimoniai property can be deduced or derived, from that definition to mean those property or assets which are reiated to the legal relationship between married persons. That is so because the term 'matrimonial' Itself is reiated to married people. It follows therefore that there can be no matrimonial property or assets where there is no marriage. Page 8 of 13 In terms of Section 75 of the Law of Marriage Act, a primary court can have jurisdiction to entertain a suit under part IV of the Act, only where parties were married in accordance with customary law or Islamic form. Thus, having found that there was no marriage between the parties in this case, the primary court ought to have held that it had no jurisdiction to entertain the issue of division of 'matrimonial' assets or property. In present case the record shows that the Appellant's petition and its prayers were focused mainly on division of what he considered to be matrimonial assets acquired during the existence of their presumed marriage. The kernel of contention between the parties in this case, therefore revolves around contribution toward acquisition of the property in dispute. As the evidence on record would reveal, the parties were not living under the same roof. The evidence of the Respondent was to the effect that the Appellant like a day schooler used to "come and go"to the Respondent's house. The evidence on record shows that the Appellant failed to establish presumption of marriage embodied under section 160 (2) of the Law of Marriage Act, which provides that:- "160(1) Where it is proved that a man and woman have lived togetherfor two years or more, in such circumstances as to have Page 9 of 13 acquired the reputation ofbeing husband and wife, there shaiibe a rebuttabie presumption that they were duiy married. Under sub-section (2) of the same section the law says: 160(2) "When a man and a woman have iived together in circumstances which give rise to a presumption provided for in subsection (1)and such presumption is rebutted in any court of competentjurisdiction, the woman shaii be entitied to appiy for maintenance for herseif and for every chiid of the union on satisfying the court thatshe and the man did in factiive together as husband and wife for two years or more, and the court shaii have jurisdiction to make order or orders for maintenance and, upon appiication made therefor either by the woman or the man, to grantsuch other reiiefs, inciuding custody ofchiidren, asit has jurisdiction under this Act to make or grant upon or subsequent to the making ofan order for the dissoiution ofa marriage or an orderforseparation, as the court may think fit, and the provisions ofthis Act which reguiate and appiy to proceeding for and orders of maintenance and other reiiefs shaii in so far as they may be appiicabie, reguiate and appiy to proceedings for and orders of maintenance and other reiiefs under this section." Page 10 of 13 The presumption of marriage was strongly rebutted by the Respondent who told the trial court that the Appellant was her boyfriend but they not living under the same roof. She said that the Appellant used to visit her and spend some few days there and go away and they begot two issues namely Frank and Florence. Section 110 of the Evidence Act puts the burden of proof on he who alleges. In his testimony the Appellant stated that he lived with the Respondent for a total 20 years. Fie said that they started to live in one roof after moving away from their rented residences. Fie did not disclose when exactly they started to live together though when he was cross-examined by the Respondent he stated that they started to build their own house in 2015, again there is no indication as to when they completed the construction and moved in. The only witness who testified to have recognized the Appellant and Respondent as husband and wife was Isabela Venance (PW2) who testified that the two were her neighbours and that the Respondent introduced the Appellant as her husband. She did not tell the court for how long the parties were her neighbours so as to bring into play the presumption of marriage embodied under sub-section of section 160 of the Law of Page 11 of 13 Marriage Act quoted above. When one compares the evidence of both sides it is clear that the evidence rebutting presumption of marriage is much heavier that the evidence supporting it. I therefore agree with the trial court's finding that there was no marriage between the parties whatsoever. Regarding acquisition of property, the Appellant believes that during his relationship with the Respondent they acquired some properties by their joint efforts. In my view, the Appellant may be entitled to claim his rights over the property which he alleges to have acquired by their joint efforts during their relationship but as there was no marriage his claims can be properly dealt with in an ordinary civil claims/suits and not in a matrimonial proceedings as there was no matrimony between him and the Respondent. Regarding order for custody and maintenance of two issues of their relationship, I note that in terms of Section 125 of the Law of Marriage Act, and in consideration of the best interest of the issues of that relationship, and the circumstances of this case the trial court had jurisdiction to make an order for custody of the two issues of their relationship. Page 12 of 13 For reasons stated above, I find no reason to fault the decision of the two courts below. I accordingly dismiss the Appellant's appeal. Given the relationsbl^^of the parties, I make no order as to costs. A.R. MRUMA > JUDGE. 28. 8. 2024 Judgment delivered in presence of the parties this day of August 2024. Right of Appeal is explained tq^the parties. A. 1^. MRUMA Q> -7, Or JUDGE Uj e><-. > X h- 28. 8. 2024 Page 13 of 13