HENRICK WILLEM TIMMER VS ANNA KEMILEMBE BAHIGANA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPLICATION NO. 5041 OF 2024 (C/F Civil Case No. 74 Of 2018 Resident Magistrate Court Arusha) HENRICK WILLEM TIMMER......................................................... APPLICANT VERSUS ANNA KEMILEMBE BAHIGANA.................................................. RESPONDENT JUDGMENT 06/03/2025 & 13/03/2025 NDUMBARO, 3 Before me is an appeal brought by the appellant, after being dissatisfied with the exparte decision Civil Case No. 74 of 2018 Resident Magistrate Court Arusha, whereby the respondent was awarded compensation of 300,000,000 and general damage to the tune of 10,000,000 for breach of promise to marry. The appellant was detained as a civil prisoner and ended up paying 200,000, 000 through a consent decree adjustment agreement. Thereafter the appellant claimed the agreement was not freely procured. i I find it apt to narrate briefly the story behind this matter, the appellant herein is a foreigner residing outside the country, the respondent filed execution proceedings to Civil Case No.74 of 2018, and the appellant on arriving in Tanzania was arrested and detained in civil prison to fulfil the decree. A settlement adjustment decree agreement was entered to the tune of payment of Tshs 200,000,000 instead of the 300,000,000 ordered by the court, and it was paid in full. Thereafter the appellant herein filed Revision No. 22 of 2021, claiming that the execution of the decree was not freely procured to the effect that, the amount paid by the appellant herein to the tune of 200,000,000 be returned to appellant herein. It was exparte ruled in favour him. The respondent herein filed Misc. Application No. 98 of 2022, praying the court to set aside the exparte ruling on the reasons that, the respondent was not served with the application, the court went into setting aside the ruling and the applicant was allowed to file a counter affidavit vide Revision Application No. 22 of 2021, whereby it was ruled on 27/02/2024, that the matter was fit for appeal and not revision application. Thereafter the court employing his inherent power under Sections 95 and 93 of Civil Procedure Code Cap 33 RE 2022, automatically extended the time for the said intended appeal in order to attain the end of justice and get rid with abuse of court process, therefore ordered the applicant to file an appeal within 14 days, hence this Appeal with the following grounds. 1. Honorable trial magistrate having held that no alleged contract was produced or testimony led to that effect by the respondent erred in law and in fact in holding that there was a breach of contract by the appellant herein. 2. That the court erred in law and fact in holding that the appellant deserted the respondent with three adopted children without actual proof of such children and that they were adopted by the appellant and the respondent including requisite adoption papers. 3. That the court erred in law and fact in holding that the respondent was pursued by the appellant to quit job at an organization called Cultural Affairs Tanzania shortly (ICA-Tanzania) without any proof of such employment by the respondent or resignation for the alleged purpose for taking care three orphaned children. 4. That the trial magistrate erred in law and fact in entertaining matrimonial proceedings under the presumption of marriage's breach of contract and obligation. 5. That the trial magistrate erred in law and fact in holding that there was a breach of contract and obligation to the appellant without there being any evidence tendered to support the inference of promise to marry by the appellant or he fathered the said children through adoption. 6. That the honourable magistrate erred in law and fact in commingling between botched charitable undertaking namely opening an NGO for orphans with marriage under the presumption of marriage thus arriving at an erroneous conclusion that the appellant's abandonment of the same, if at all constituted breach of promise to marry. 7. That the awarded compensation of Tshs 300,000,000/=was manifestly executive irrational and inconsistent with an award associated with claims of such nature. 8. That 1st appellate court erred in law and fact by failing to properly evaluate evidence on record arriving at an erroneous decision confirming breach of non-existing contract and or obligation. 9. That trial court had no mandate to deal with matters concerning child maintenance outside the regime of family law and more categorically the law of Marriage Act and rules made there under. The appellant prays to this court to set aside the exparte judgment of the trial court. When the matter was called for hearing the appellant was represented by Advocate Wilbard John Massawe and the respondent enjoyed the service of Advocate Advocate Boniface Kamugisha Buberwa, with leave of the court the matter was disposed of by way of written submission. The appellant started arguing on 7th ground, the rest followed chronologically and chose to abandon the 8th ground on the reasons that it was addressed in other grounds. On the 7th ground argued, the award for compensation for breach of contract and obligation is excessive, irrational, and inconsistent with the award associated with such nature. The appellant argued that, no any proof was brought to testify that she quitted job in a certain organization named ICA Tanzania to whom used to receive a monthly payment of 1,500,000 for an agreement to take care of the three orphan children, that, no termination of employment contract was brought before the court. The claim was not specifically pleaded in the plaint, nor was it proved as required by the rules in granting the relief of specific damages. The 5 Counsel supported his stance with an old famous case of Zuberi Augustino vs Anicet Mugabe [1992] TLR 137. On the 1st ground, the appellant argued that, the case was not proved in the balance of probability, the respondent herein did not demonstrate that there was a promise to marry and as to whether the process toward that marriage commenced, the loss suffered by the respondent as a result of expenditure incurred directly due to that promise. Argued the evidence was too scanty, the act of living together under one roof does not mean there was a contract to marry, no proof that parties could be headed into marriage, no payment of dowry, no introduction to parents, even no traditional ceremony attended by parties. In support of the argument cited in section 69(1) of the law of the Marriage Act Cap 29 RE 2019 and the case of Abel Maligisi Vs Paul Fungameza (PC Appeal 10 of 2018) (2020) HCT), whereby there was no breach of the said contract was demonstrated, and no contract was provided, the appeal ended up in vain. On 2nd ground argued, there was neither proof of the existence of deserted children, no birth certificate , or the adoption papers of the said deserted children before the trial court, considering the fact that adoption 6 is guided by the Law of the Child Act, adoption rules and it is subjected to procedures as to the filing of the adoption petition and if granted parties are issued with foster care placement order. Argued the fact that the plaintiffs testimony was uncontested does not necessarily be taken as gospel of truth. 3rd ground the appellant argued no proof that the respondent herein was employed and quit a job at ICA Tanzania with an agreement to take care of three orphanage children, further there was no proof of the existence of the said children, even if the said children existed the proper forum was to file a claim for maintenance under the Law of Marriage Act, and not civil suit on breach of obligation from unknown consideration as well as acceptance. In the 4th ground argued the claim of the respondent herein purely falls under section 160(1) of the Law of Marriage Act Cap 29 RE 2022 under the presumption of marriage, which offers relief of maintenance of child if it is proved on the existence of the said marriage by parties. The preference for the normal civil suit was irregular, procedural and inconsistent with practice related to family law. Therefore, pray this ground be allowed. On the 5th ground submitted that there was neither evidence of the promise to marry nor the existence of the said adopted children. Argued adoption rules GN 197 of 2011 are clear to the effect that, there must be a social welfare report, consent of the parent, and petition. Once an adoption order is issued the child is closely monitored, argued that none of the documents was tendered nor was any witness such as a welfare officer brought to testify that the three unknown children were adopted. On 6th ground the fact that they intended to open an NGO for the orphanage as marriage partners under the promise of marriage which failed to take off, the respondent herein could opt to sue all founders of the said NGO. On the 8th ground, the appellant argued that the trial magistrate did not scrutinize the evidence of the applicant therein and treated the evidence as the gospel of truth. In support of his argument cited the case of Standard Chartered Bank (T) LTD Vs Samwel Nyalla Nghu ni, Civil Appeal No. 45 of 2020 Cat Mwanza unreported page 11. argued the evidence was not evaluated in the sense that, there was no agreement or contract by parties claimed to be breached rather mere allegations. Even if there was an oral contract, it was not proved to the extent of showing there was an offer, acceptance, consideration and lawful subject matter. No clear terms of the offer demonstrated acceptance and consideration. The appellant chose not to argue the 9th ground as it was argued on the other grounds. Therefore, the appellant made prayer to quash the judgment and exparte decree with cost. Initially, Mr Buberwa argued, the matter was conclusively and finally settled, and there was a meeting of the party's mind in the deed of settlement, which made the deed enforceable. The consent judgment cannot be challenged by appeal but rather by way of review. The appeal is allowed only if there is fraud, which is not the issue in this case. In supporting the argument cited a case of Arusha Planters and Traders LTD & 2 others Vs EURO Africa Bank (T) LTD Civil Appeal No. 78 of 2001 page 9. Argued in the case at hand the appellant erred in appealing against exparte judgment whose degree was already executed, upon adjustment of the said decree. The respondent further argued that the appeal is time-barred, that the judgment and decree were delivered on 21/01/2019 and the settlement deed was entered on 24/10/2019, and adjustment of the decree made effect that to the finality of the matter. The order made by Hon Tiganga on Misc. Application No. 22 of 2021 does not offer an automatic right to the appellant to file the appeal, the appellant could apply an extension of time to appeal out of time. On the 7th ground, the respondent argued, that the Ths 300,000,000 amount awarded was pleaded in the plaint, and it was proved by the plaintiff on the required standard, that the plaintiff was employed by ICA Tanzania. Annexure EP1 was tendered before the court which shows the appellant quit the job whose monthly payment was 1,500,000 so as to take care of the adopted children, the appellant deserted the respondent as testified by EPW1, EPW2 and EPW3, the evidence was evaluated by the Trial Magistrate and awarded Tshs 300,000,000 as compensation. Argued further that, the cited case of Zuberi Augustino Vs Anicet Mugabe (1992) TLR 137 is distinguishable, the respondent incurred nominal and moral damage as to the mental anguish, serious anxiety, besmirched reputation, wounded feeling, moral shock social limitation and similar injury. On the 1st ground of appeal argued, the contract entered was oral, exhibited by parties living together, as husband and wife under one roof, it is not necessary that a contract must be written in form even an oral 10 contract is sound provided that are made by the free consent of competent parties with lawful consideration, in support of the argument cited section 10 of Law of Contract Act Cap 345 RE 2022 and the case Alisaar Company Limited Vs Flugence, Civil Appeal No. 51/2022, HCT DSM, page 7. On the 2nd ground, argued this matter was concluded in the finality, the compensation amount was adjusted and fully paid by the respondent herein, the fact that there were no adoption papers is a misconception as the respondent herein testified there were adopted children and their names were mentioned therein as it was shown in page 2 of the judgment. Respondent further argued considering the standard of proof in the civil case is on the balance of probability, considering that the evidence is more credible and probable, in the case at hand the respondent proved the case on the balance of probability. On 3rd ground, it was the argument by the respondent that, the civil case on breach of obligation was properly instituted and not matrimonial as claimed by appellant herein. The respondent quit her job on agreement with applicant that could establish ophanage NGO and may take care of three orphan children, it was their agreement the appellant shall provide ii needs for the three orphans and respondent, however, the plaintiff did not honour the agreement. In the 4th ground, it is the argument of the respondent that, no dispute that the appellant and respondent lived together as husband and wife under one roof. Argued the appellant breached the promise to merry and the respondent instituted a civil suit. Cited section 69(1) of the Law of Marriage Act Cap 29, R.E 2019, by appellant is irrelevant to this issue. The civil suit was proper. On the 5th and 6th grounds, argued there is no form or standard to prove breach of promise to marry as it was stated in the case of Anna Mgomba Vs Mathayo Msigwa PC Civil Appeal No. 95 of 2021 HCT DSM; therefore, there is no merit on the ground. On the 8th ground argued considering the fact that the standard of proof under this case is on the balance of probability, the trial magistrate evaluated the testimony of EPW1, EPW2, and EPW3 and entered the judgment based on the said judgment. Hence, the respondent prays to dismiss the appeal with costs. On rejoinder, the appellant retaliated his submission in chief and argued that the objection raised that the matter is out of time is a 12 misconception, the settlement was in respect of the execution of the decree and, therefore could not bar an appeal, the settlement was recorded after judgment and forcefully entered during illegal detention. No settlement is made after judgment. The position is supported in the case of Victoria Real Estate Development Limited Vs Tanzania Investment Bank and two others, Civil Revision No. 175 of 2015 CAT DSM Page 36. Argued what was done in the case at hand was the adjustment of the decree for execution which cannot termed as a consent agreement, the plaintiff was coerced to provide funds to satisfy the illegal decree. On the 2nd and 3rd issues, the respondent submitted that the appellant filed this appeal within ten days. If the respondent was not satisfied with the ruling and order made by Hon. Tiganga could appeal the same to the court of appeals. The decision is not erroneous, if it is erroneous this court becomes fuctus officio, it cannot set aside or overturn its own decision, and can only be done by a court of appeal, in support of the argument cited in the case of Bibi Kisoko Merdad Vs Minister for Land Housing and Urban Development and another 1983 TLR 250. The appellant further argued that the practice of enlarging time 13 automatically is not uncommon as it was in the case of Sebastian Kudike Vs Mamlaka ya Maji Safi & Maji Taka (Civil Appeal No. 274 of 2018) CAT case No. 38 of 2022. Whereby the court of appeal extends time automatically to the litigant who had been in court for 15 years. The appellant prays that the appeal be allowed with costs. Considering court records and rival submissions by the parties, it is time for the court to find if the appeal has merit. Initially, the respondent raised the Preliminary Objection on the jurisdiction of this court to entertain the matter as it is time-barred. This issue will not detain me, as it was well articulated in the ruling of Hon. Tiganga in Civil Revision. No. 22 of 2021, pages 37 and 38, referring to sections 95 and 93 of Civil Procedure Code Cap 33 RE 2022. That the time was automatically extended. Since the ruling is from this court, if the respondent is not satisfied may lodge an appeal. As previously stated, the appeal before me is against the ex parte judgment delivered by the District Court of Arusha, and it was the argument of the respondent in the said appeal that the matter cannot be challenged by appeal but by review. The position of law is to the effect that an aggrieved party of an ex parte judgment has the right to appeal against 14 the said decision only if he is not interested in challenging the order to proceed ex parte. See the decision of the Court of Appeal of Tanzania in the case of Danqote Industries Limited Tanzania vs Warnercom T. Limited fCivil Appeal No. 13 of 2021) 170221 TZCA 34 (17 February 2022) Guided by the above positions and authority, I am persuaded that the determination of this appeal should be done with an eye of caution by not extending the determination on matters which denied the appellant the right to be heard at the trial court. That said, and having scrutinized the grounds of appeal raised by the appellant, I am of the view that nothing was pleaded in relation to the matters which denied the appellant the right to be heard and that the appellant is not challenging the exparte order. Against that backdrop, this court now determines the grounds of appeal in the manner they have been submitted by the appellant. On the 7th, the appellant challenged the award of Tshs. 300,000,000/= by the trial court. According to his argument, the appellant, through his counsel, submitted that this claim was excessive and not specifically pleaded in the plaint, nor was it proved as required by the rules in granting the relief of specific damages. The Counsel supported his 15 stance with an old famous case of Zuberi Augustino vs Anicet Mugabe [1992] TLR 137. Replying to the above, the respondent, through her counsel, maintained that the amount was not excessive and it was properly pleaded in the respondent's plaint filed at the trial court, and the same was proved through EPW1, EPW2, and EPW3, who testified on her behalf on the required standard to the extent of financial loss to mental anguish by the respondent. This ground does not need to detain me much; as correctly submitted by the appellant's counsel, it is the position of the law that special damages must be specifically pleaded and proved. The Court of Appeal of Tanzania in the case of Par es Salaam Water & Sewaraae Authority vs Didas Kameka & Others fCivil Appeal No. 233 of 2019) ["20211 TZCA 596 (18 October 2021) had the following to say with regard to special damages; We are well aware that special damages cannot be granted unless specifically pleaded and proved." The question as to whether special damages claimed by the respondent were proved is found in both the plaint and the proceedings of 16 the trial court. I have had time to go through the complaint in particular, at paragraph 3, for easy reference. The paragraph is quoted below; "The plaintiff's claim against the defendant is for payment o f Tanzania Shillings 300,000,000/- three hundred million shillings emanating out o f breach o f agreement to marry, maintenance o f agreed adopted children, payment o f their school fees, covenanted under the agreement concluded with plaintiff and defendant herein, general damages as may be assessed by this Honourable Court....... " I have also revisited the proceedings of the trial court. It is unfortunate that in arriving at the award of Tshs. 300,000,000/- the court was not backed up with any proof of how it arrived at such figures. It is my view that the evidence tendered by the respondent and her witnesses was too general to have this court hold that the special damages pleaded were specifically proved. It is my view that the respondent ought to have given an account of the amount pleaded to warrant the court to award the special damages claimed. Therefore, it remains a mystery as to how the trial court arrived at such an award. In that regard, I find merit in this ground of appeal. On 1, 2nd and 3rd grounds, as to whether there was a marriage contract between the parties is a matter of evidence. The trial magistrate, while composing the judgment, admitted that no contract was tendered in court to prove marriage between the parties, but he went on to state that since they were living together, there was such an agreement. I have carefully considered the submissions of the parties with regard to this ground of appeal, with due respect, it is my view that, the trial Magistrate misdirected himself in holding that way. It should be remembered that the basis of the claim at the trial court was on breach of agreement to marry, and there was nothing on presumption of marriage as suggested by the trial Magistrate. In her submission, the respondent also argued that at the trial court, she entered into an oral contract with the appellant of living together as a husband and wife under one roof. In other words, the respondent is now bringing an issue that there was a presumption of marriage between the appellant and the respondent. Referring to a long- settled position of the law that parties are bound by their pleadings. See the decision of Yara Tanzania Limited vs Charles Alovce Msemwa & Others 18 (Commercial Case 5 of 2013) [20161 TZHCComD 2022 f 19 February 2016V It is, therefore, my view that the respondent ought to have given sufficient proof of the existence of what she pleaded in her plaint that there was a breach of an agreement to marry than bringing new claims on presumption of marriages, which were basically not in her pleadings. The promise to marry does not create marriage status on the presumption of marriage; it is a mere promise to enter a marriage agreement, and it is not a marriage agreement. I agree with the respondent's submission that the proper forum for this matter is a civil case and not a matrimonial one. If that is the position, the respondent cannot again claim a breach of promise to marry together with maintenance of children, as there was no marriage or presumption of marriage to accord maintenance of children. As to the proof of existence of such a promise to marry, it was testimony of the respondent in gage 4 and 5 of trial court proceedings that the appellant had been her fiancee since 2013. Very fortunate that EPW3 is the mother to the respondent, and in her testimony, she stated that the appellant and the respondent were in a relationship since 2014 and that the appellant was the fiancee of the respondent. Even if I am to accept that there was indeed a promise to marry, the question that arises before 19 this court is that, in our country, each society has its own ways of executing a promise to marry. While in some societies it is exhibited by payment of dowry alone in other societies execution of promise to marry is exhibited by both payment of dowry and an engagement ring in the presence of people or having marriage arrangement plan on which some people may be invited. See the decision of this court in the case of Anna Mqamba vs Mathavo Msiqwa (PC. Civil Appeal 95 of 2021) [20221 TZHC 10229 f!7 June 2022\ Bad luck, neither the respondent's witnesses succeeded to prove that there existed any sign showing that there was a promise to marry between the parties As to whether there was sufficient proof on the adoption of the three children. I revisited the trial court proceedings. The respondent (EPW1) and Pulcheria Bahigana (EPW3) informed the court that the appellant adopted three children. It is the submission of the appellant that there was no evidence to that effect. Well, it is known that adoption of children is done legally in court, and after adoption has been granted, the parents are given full custody of the children. Proof of adoption can be through a ruling delivered by the court; however, what exists in the court proceedings are mere statements without proof to that effect. I am aware that the 20 proceedings at the trial court were conducted ex parte. However, it is my view that the expate hearing does not erode a duty of the party to prove her case; the respondent was expected to have her case proved to the standard required. The fact that the names of the adopted children were mentioned does not prove the existence of the adopted children. I agree with the submission by the appellant that the exparte testimony made by the plaintiff in the trial court should not be taken as the gospel of truth. It is my view that, despite the standard of proof being on the balance of probability, the seriousness of the allegation can influence the level of scrutiny. The plaintiff ought to show probability of existence of the said facts. On the issue that the appellant persuaded the respondent from quitting job in order to take care of the children, again, this is also a matter of evidence, and upon my careful perusal of the trial court proceedings, save for the employment contract that was tendered by the respondent as exhibit EP1 there is no any other proof that the respondent left his job. Despite the fact, I took trouble to go through the said employment contract and observed on the first page of the said contract that, the salary paid to the respondent herein was 1,500,000 before deducting the 21 NSSF contribution, however, it was the testimony of the respondent herein on page 5 of trial court proceedings that 1,500,000 was her take-home salary, the contradiction speak louder. Even if there would be evidence to support that the respondent quitted her job, yet there ought to have been enough to support the fact that it was the appellant who persuaded her to quit her job in order to take care of the said children. The fact that they agreed to quit her job to take care for the three claimed adopted children aged 3, 2 and 1 years old and claim for compensation for payment of children's school fees without showing which school the said children were enrolled, and the fact that the only names of the said orphan's children were mentioned, without birth certificates and adoption papers, it is questionable. I consider the standard did not meet the threshold in civil cases under this ground. Considering those facts, I therefore find merit on this ground. I have also gone through grounds number 4, 5, and 6 it is my firm view that these grounds have been answered above while discussing grounds number 1, 2 and 3 and I find no reason to labour again discussing them as it will be a repetition. 22 On 8th ground that the evidences were not scrutinized. Going through the court record, particularly trial court proceedings, it is clear that the respondent paraded PW1, PW2 and PW3 as witnesses, however, no evidence shows there was an agreement to marry and to what extent the breach of the agreement led to the claimed mental anguish, moral shock, or social limitation to respondent. Am aware of the testimony of EPW3 the respondent's mother on page 7 of trial court proceedings that, she used to visit her daughter living together with her fiancee, however, neither the mother EPW3, nor respondent herself EPW1 and a neighbor EPW2 testified as to whether the respondent and the appellant herein had any agreement to marry. The mere fact that the appellant and respondent living in one roof, have been in fiance relationship with the promise to marry since 2013, and he stopped her from working in 2014, the work used to receive 1,500,000 take home, so as to take care of adopted three children namely Jordan Dreick 3 years old, Berinda Leonard 2 years old and Neema Moses 1-year-old, without proving the existence of the said promise to merry and agreement to terminate job, and the mere fact that they agreed to take care of the three claimed to be adopted without birth 23 certificate, or admission from enrolled school prove the fact that the matter was not scrutinized in trial court. The fact that the respondent and appellant agreed to established an NGO to take care for the said children, and the fact that the validity of the said adoption was not established and the fact that claim of compensation for payment of children's school fees without showing which school the said children were enrolled it is my view that lack scrutinization in trial court. It is my view that an NGO is an institution with a management structure; it is not a partnership. If the agreement was to establish an NGO taking care of orphans, the responsibility of the said orphans was not to the appellant but rather to the NGO. It was the argument of the respondent herein that there was an oral contract, however, it is my view that the fact that there was an oral contract does not erode the duty to prove the existence of the said oral contract on the balance of probability, the respondent herein ought to show steps taken toward the said contract such as the customary practice of introducing themselves to the parents, or payment of dowry, had engagement announcement or plan like booking venue, and dress fitting, ordering engagement ring. The respondent alleged to have mentally 24 suffered without showing the extent of suffering, no medical report was brought, nothing was proved connected to humiliation, lack of social standing and so on. Considering the above, it is clear that the trial court did not scrutinize the evidence to the extent of awarding Tshs 300,000,000.1, therefore, find merit in this ground. Having discussed above, it is my finding that there is a scanty of evidence to sufficiently convince this court to hold that grounds number 1,2 and 3,4,5,6,7, and 8 are not meritorious. Above said, I find merit in the appeal. I consequently quash the judgment and decree of the trial court Civil Case 74 of 2018 and allow an appeal with cost. It is so ordered. D. D. NDUMBARO JUDGE 13/ 03/2025 25