NA TZHC Dar es Salaam23

. IN THE HIGH COURT OF ·TANZANIA ~T DAR ES SALAAM ·(pc) CIVIL _APPEAL N0.148 OF 1$95 \ HAPINESS NYAKULIMBA O O O O • C O O O Q O O C c, o o o o O a O o o O .O Cl O .0 APPELLANT SHABAN! IDDI KIFARU o • o o o o o a 6 O o o o o o o o • • o O ID' •'"o Q o o • J RESPONDENT JU D·G ME N T • MSUMI 7 J.: In the original suit filed in the primary court, appellant ..--i ' ,1. prayed for distribution of property which the appelI~t and respondent had acquirzd during the period of over two years.they had been staying together as loverso She claimed that during that period:the parties had acquired the legal presumptive status of husband and wife. The trieJ., primary court was of the unanimous finding ' that the said concubanage ,• relationship did not give the appellant ~ha right over the property acquired by the parties du~ing the subsistence of the said relationship. Di,satsfied with this finding appellant decided to lodge an appe:a,i to ' -~ the District Court. She was unsuccessful and still in pursuit of her 'right she decided to appeal to this court. · .. Advocating forlhe appellant, Mr. Magesa submitted three grounds of appeal. In the first ground he is contending that the first appellate court erred in law and in fact in holdiJg that since the ,.... . ! -~ppellant and the respondent were quarrelling during their cohabitation 1 then they did not ayquire the reputation o~ a wife and, busband. According to the evidence, the parties began to cohabit in 1988 when \.1 respondent rshifted to the apartment of .the appellant at Msimbazi police flats. Appellant is a iwoman police. Because the parties were constantly quarre1:ling, the OCD advised the appellant to move to the respondent's residence o Unfortunately this suggestation did not ,prove to be a solution for appeliant and respondent continued with their quarrels. ~ ' -~. /.~•0111•02 ~ !!, 2 Consequently in 1994 appellant decided to leave the respondent's • house. To the,learned appellate Magistrate's opinion, this evidence of constant quarrels and respondent's frequent acts of having love . re 1 ations . th various . . 1 s indiscreetly gir .. . a proo-1:.c- tb,at the par t ies is . w1. ' had not acquired the presumti ve legc1.l status of husband and wife. .With respect this deducting finding is unsupportable".by both law and common sense. Peaceful cohabitation is not a relevant factor in determining whether or not the parties have acquired the status of husb8.lld and wifeo Indeed in the present case it means that the parties' cohabitation was so .strong that it could not be easily broken by the said constant bickerings. Also it is on the understanding <fhat the parties had acquired the status· of husband and wife thnt the OCD advised the appe~lant to move to the residence of the respondent. Otherwise he would have just barred the respondent from going to the appellant''s apartment. He could nbt do so because he was respecting the presumptive marriage ties of the parties .• On the second ground of aJpeal, the le3..rned •counsel criticised the appellate District Magistr."l.te for applying the decision i'.11· the case of Francis Leo v Paschal Si~g~n~ 1978 LRT No. 220 He is of the opinion that in the circumstances of this case, that decision is irrelevant because the court held that the pDrtics h~d not acquired the status of husband and wife as one of them had no capacity to contract marriage. With respect the court also gave another ground. As far as relevant, this is wh9.t the court s0.id: ·• i; The first point that comes out very clearly out of sub-section (1) is that this section does not auto- matically convert concubines into wives at the end of two years or more of cohabitation. All that this section does is to prov.;i.de for a presumption which is rebuttable that such people were duly marrieds and this ;·;being duly married, surely must refer to the forms and procedures for marriage provided for under the Law of Marriage i1.ct" Tncregore all that is required to rebut such a pr.ssumption is to establish that the <I two never went through a ceremony of marriage recognised under the Act. Onoo, this is established ~ /00000•~ 3"