isaac zacharia mbunda vs jeneroza zacharia mapunda 2023 tzhc 17948 13 june 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA PC. CIVIL APPEAL NO. 2 OF 2023 (Originating from Civil Appeal No. 11/2022, Songea District Court) ISAAC ZACHARIA MBUNDA ............... APPELLANT VERSUS JENEROZA ZACHARIA MAPUNDA ................................... ...... RESPONDENT JUDGMENT 30/03/2023 & 13/06/2023 E. B. LU VAN DA, J. In the petition of appeal, the Appellant named above raised five grounds of appeal to challenge the decision of the first appellate court upholding a verdict in the trial court which annulled a presumption of marriage, ordered division of matrimonial assets and made an order for custody of issue of marriage. However, in his written argument, the Appellant Counsel Mr. Vicent Kassale Advocate, abandoned the fourth and fifth ground, instead argued by way of consolidating the first, second and third grounds: 1. The first appellate court erred in law and fact to entertain the appeal which was before (sic, it) applying the provisions of the i Law of Marriage Act, while it was filed as a normal civil case and that it was wrongly entertained at the trial court and the first appellate court. 2. That, the first appellate court erred in law and fact, to upheld the findings of the trial court that the parties hereto lived under a presumption of marriage while there was no evidence that the issue of presumption of marriage was proved and determined at the trial court. 3. That, the first appellate court erred in law and fact when it failed to hold that the trial court had no jurisdiction to entertain the matter before it. 4. That, the first appellate court erred in law and fact, when it failed to appreciate the complaint by the appellant that, the trial court did not consider the extent of contribution of the parties hereto. 5. That, the first appellate court erred in law and fact when it failed to appreciate the complaint by the appellant that the alleged thirty acres were not the matrimonial properties. The learned Counsel submitted that at the trial court the Respondent petitioned for annulment of their marriage and the division of matrimonial properties. That the relief thought (sic, sought) by the 2 Respondent at the trial court are provided under Part VI of the Law of Marriage Act, Cap 29 R.E. 2019 which under section 2 of the Act, are referred as matrimonial proceedings and which should be filed as a matrimonial cases and not be filed as civil cases, as in this case where this appeal emanate from Civil Appeal No. 11/2022 which originated from Civil Case No. 2/2022 at Magagura Primary Court. According to the learned Counsel, this was wrong in law, and asked this court to quash the proceedings. The learned Counsel submitted that the trial court had no jurisdiction to determine the issue of presumption of marriage under section 160 of Cap 29 (supra). That section 76 Cap 29 (supra) vests concurrent jurisdiction of the courts on matrimonial proceedings, being the High Court, Court of Resident Magistrate, District Court and Primary Courts over original jurisdiction. The learned Counsel posed a proposition as to whether presumption of marriage falls under matrimonial proceedings. According to him, presumption of marriage is a pure point of law, on which the provision of section 10i Cap 29 does not apply, no need to refer to the marriage conciliation board and the primary court is ousted with requisite jurisdiction. He cited the case of Wilson Andrew vs Stanley John Lwigisha and Another, Civil Appeal No. 227 of 2017 3 C.A.T. at Mwanza (unreported); also cited Ms. Tanzania China Friendship Textile Co. Ltd vs Our Lady of the Usambara Sisters [2006] TLR 70, for a proposition that the questions of jurisdiction is fundamental. In opposition, the Respondent submitted that the Respondent and Appellant lived together more than two years (1994 -2010), and there shall be a rebuttable presumption that they were dully married. That the Respondent's claim in the trial court was made outside the Law of Marriage Act without requiring its assistance because it is maintainable under customary law and there is no mention of section 160 Cap 29, hence the trial court has jurisdiction to entertain it. That the Respondent was right to institute the claims because during the association with the Appellant it was concubinage association, where they acquired some properties and the Respondent was justified to claim division of properties acquired. She cited the case of Hoko Mbofu vs Pastory Mwijage, Civil Appeal No. 94/1983 H.C. at Mwanza, Mushi J. I will start canvassing on the meaning of matrimonial proceedings. Section 2 of Cap 29 (supra), define matrimonial proceedings to mean: 'any proceedings instituted under Parts II and VI of this Act or any comparable proceedings brought under any written law repealed by this Act, in any court" 4 Herein, the proceedings which were initiated at the trial court and subsequent appeals, were not rnatrimonial/proceedings within the meaning or the provision of section 2 above. For one thing were initiated as a normal civil suit. For another thing, it was initiated for claim of division of a purported joint acquired assets. However amid trial, parties crop up with the issue of cohabitation for more that fifteen years, and the Appellant led evidence to prove that she acquired a status of husband and wife, because their marriage was contracted according to rites recognized by customary law. In the course of crafting a judgment, the trial court invoked a doctrine of presumption of marriage under section 160 Cap 29 (supra). At the commencement of proceedings the trial court bragged to have jurisdiction to entertain the matter by virtue of section 76 Cap 29 (supra). It is common knowledge that the doctrine of presumption of marriage under section 160 Cap 29 (supra) on itself does not fall under the heading of matrimonial proceedings. According to the interpretation section cited at the outside of this findings define matrimonial proceedings to mean proceedings falling under Parts II and IV of the Act. The provision of section 160 does not fall on either of the two parts. 5 Literally, the provision of section 160, provide for two distinct procedures of dealing with the situation under that provision. The first procedure is for a competent court to rebut the presumption for a man and woman who have lived together for two years or more if they have acquired the reputation of husband and wife and therefore presumed that they were dully married. Secondly, after rebutting the presumption, parties will be at liberty to seek reliefs under matrimonial proceedings including orders for maintenance, custody of children, dissolution of marriage or separation and other reliefs. Unfortunate the definition of a phrase court under section 2(1) of Cap 29 (supra) covers courts conferred with jurisdiction under section 76 Cap 29, with original jurisdiction in matrimonial proceedings which are vested concurrently in the High Court, a Court of Resident Magistrate, a District Court and a Primary Court, but in exclusion of a cause emanating from the presumption of marriage under section 160 Cap 29 (supra). However, section 160 provide that a presumption shall be rebutted in ay court of competent jurisdiction, The provision does not make reference to the courts defined under section 76 above. 6 According to the Interpretation Of Laws Act, Cap 1 R.E. 2019, in particular section 4 with marginal notes definitions applicable to written laws, define court to mean, I quote, 'Court, means any court in the United Republic, of competentjurisdiction - The above definition, presupposes that any court in the United Republic is of competent jurisdiction. Nevertheless, the impugned provision to wit section 160 Cap 29 (supra) does not mention specific courts or category of court vested with jurisdiction to determine the presumption therein. The learned Counsel for Appellant made an interesting argument that the doctrine of presumption under section 160 Cap 29 is a pure point of law. However, the proviso under subsection (1) of section 160, provide on the contrary. The said provision require a proof that a man and woman have lived together for two years or more, in the circumstances as to have acquired the reputation of being husband and wife in order to reach a conclusion that they were dully married. To my view, when the law calls for proof, that on itself is a factual issue which require evidence. Herein at a trial, the Respondent in pursuit of convincing the trial court to reach to a conclusion that she and the Appellant were dully married, 7 she lead and adduced evidence to the effect that the Appellant had delivered a post mail of engagement (letter) to her (Respondent) parents proposing to marry her, and paid dowry interms of Matengo customary law and proceeded to cohabit from 1995 to 2010 without contracting a formal marriage. This fact was not dispelled by the Appellant. Of interest, the Appellant at defence claimed custody of two children which were born by Respondent post separation in 2010, these are Witness Mbunda born in 2018 and Isaya Mbunda born in 2020, on account that they belonged to him because he paid dowry and no divorce Was issued. This fact was supported by the Appellant's senior brother one Robert Zakaria Mbunda (DW2), who asserted that Witness Mbunda and Isaya Mbunda, customarily belong to the Appellant who paid dowry. During cross examination by the Respondent, regarding those two children who were born after she (Respondent) was remarried, DW2 maintained that in customary law (Matengo) a lady who desert, children born out of wedlock, belong to the man who married her for the first time. In view of above, it cannot be said that a presumption of marriage is a pure point of law. On similar vein, seemingly the evidence may be lead 8 to rebut the presumption by way of customary rituals as to ascertain if a man and woman were dully married. It is elementary knowledge that Primary Court is vested with jurisdiction in all proceedings of civil nature where the law applicable is customary law, see section 18 (1) (a) (i) of the Magistrates Courts Act, Cap 11 R.E. 2019. Legally speaking, in the circumstances of this matter, it cannot therefore be said that the Primary Court proceeded without a prerequisite jurisdiction. To my view, all courts mentioned under section 76 to Cap 29 are of competent jurisdiction within the purview of section 160 Cap 29, save for limitation imposed by section 75 Cap 29. A case of Wilson Andrew (supra) is distinguishable to the facts of this case, because therein, the apex Court ousted the jurisdiction of the primary court to entertain a claim of damages for adultery. Indeed, there is a specific provision of the law which oust primary court to deal with such type of specific matter or claim, as envisaged under section 75 of Cap 29. The learned Counsel for Appellant also invited the court to quash all the proceedings of the trial court and first appellate court, which were initiated as civil matter, arguing that, the reliefs sought by the Respondent at the trial court to wit petition for annulment of their 9 marriage and the division of matrimonial properties, are matrimonial proceedings falling under Part VI of Cap 29. This argument is misplaced, because according to a form which had initiated the proceedings at the trial court, it was a normal standard form for civil action and not a petition as alleged. For another thing, the Respondent did not petition for annulment of marriage at all. According to a standard form reveal that the Respondent pleaded for division of assets acquired jointly when they started to cohabit in 1995 to 2010. Actually the Respondent was smart enough, because therein, there is no mention of marriage or matrimonial asset. Presumably, that is why the learned trial magistrate opened it as a normal civil suit and not matrimonial proceedings. Above all, matrimonial proceedings, are mentioned under rule 2 of The Law of Marriage (Matrimonial Proceedings) Rules, G.N. 246/1997, as follows: "Matrimonial proceedings" means proceedings- (a) on an objection under section 20 of the Act; (b) for divorce, separation or annulment; (c) for maintenance of a spouse; (d) for custody or maintenance of children of the marriage; (e) for a declaratory decree under section 94 of the Act; io There is no mention of division of matrimonial properties as among matrimonial proceedings within the strict meaning of the rule quoted above. Even under section 160 of Cap 29, strictly speaking there is no mention of division of matrimonial assets as among reliefs under matrimonial proceedings, although it can be argued that it fall under other reliefs as envisaged under the said provision. However, division of matrimonial assets fall under sub heading (g) of Part VI of Cap 29 (supra) which cater for matrimonial proceedings generally. In view of the narration above, I see no any harm for the trial court to let this matter be filed as a normal civil suit and for the first appellate court to open it as civil appeal. This is because the issue of presumption of marriage can be initiated as civil suit as adumbrated above. To be more precisely, I have said above, the proceedings were initiated as normal civil suit, relief sought were division of assets jointly acquired, (without mention of a word matrimonial asset), the Respondent pleaded cohabitation (without mentioning marriage), the trial court received evidence, on it is judgment the trial court acknowledged that there was no formal registered customary marriage interims of section 33 (1) and (2) Cap 29, the trial court rebutted the presumption of marriage, ii thereafter proceeded to issue decree for divorce, thereafter the trial court adjudicated on custody and maintenance of the issue of marriage one Zacharia Isaac Mbunda, eventually made an order for division of matrimonial assets. To my view, the above proceeding cannot be abrogated on a mere technical ground that were not filed or heard as matrimonial proceedings. Therefore, all proceedings are salvaged under overriding objective principal. That said, the appeal is generally unmerited. The appeal is dismissed. I make no order for costs. 12