20090706 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 62 OF 2008 (Originating from Resident Magistrate Court Kinondoni in Matrimonial Cause No. 45 of 2005) JAMES M. NYAKYOMA. I I • I • I I I ••• I • APPELLANT

VERSUS ASHA KAKWAYA . .. I I I I I I I I I I I I I RESPONDENT Date of last order - 17/11/2008 Date ofJudgment- 06/07/2009

JUDGMENT Mihayo, J. Asha Kakwaya sued the present appellant in the District Court of Kinondoni for the following reliefs: "(a) the court decree to separation (sic) {b) division of matrimonial assets. (c) Custody of issues of marriage. ( d) Maintenance of petitioner and issue of the marriage. I I ( e) Costs of the petition. (f) Any other relief(s) this honourable court deem fit and Just to grant. // After a hearing the court had this to say: "From the evidence availed to this court it is apparent that the parties in this petition can no longer live peacefully under one roof as husband and wife. The circumstances of this case therefore suggests (sic) that issuing a decree of separation in this case is inevitable. So decree of separation is accordingly issued// A house at Block K, No. 260 Mabibo area in Dar es Salaam was declared "jointly acquired property" and subject to equal distribution. Custody of a child by the name of Achibold was given to the petitioner. Maintenance was assessed at Tshs.100,000/= per month. The court then concluded:- 2 ( 11 Fina//y, Judgment is therefore entered for the petitioner against the respondent as prayed in the petition with costs. " The respondent in that court was not satisfied, hence, the present appeal. He filed a petition containing nine grounds of appeal. He is advocated for by Amicus Attorneys. Like in the lower court, the respondent in

this court is assisted by Legal and Human Rights Centre, who also assisted her in the court below. The appeal was argued by way of written submissions. Breafly the facts of the case are as follows. The respondent Asha Kakwaya (PWl) said she married the appellant and they lived together for 20 years. It was a customary marriage. They were blessed with two issues, they also acquired a house, a plot of land and a motor vehicle. After 20 years the appellant deserted the respondent, who eventually went to court. The appellant's story was different. He testified that there was no formal ceremony of marriage celebrated, but only that the respondent was his girlfriend since 1981. He testified that in 1983 they got a baby girl, and as he could not live with her in one roof on 3 ----- ·----· ----- ......... ---,,---~ ..... -- .. - account of his being married with four children, he took her to stay in a house belonging to his son, one Richard. Their relationship according to the evidence of the appellant ended in 1989. The appellant denied to have acquired properties with the respondent. The appellant, who testified in the lower court as DWl, sought to produce a marriage certificate to buttress his evidence that he was a married man. To that the court said:- "DW1 has produced marriage certificate will be deft (sic) dated 22/10/1969 with one Rachel Gadi Kazare which certificate

was objected to by PW1. It was however ruled by this court that the admissibility of that certificate will be deft with by this court in the course of preparing judgment" In the typed record of the proceedings, when DWl wanted to tender the marriage certificate in issue as an exhibit, the respondent herein said:- 4 ''I object on the ground that the certificate is a forged one. " Then the court ruled:- "marriage certificate admitted for identification only and marked exhibit '~ "ID.1 question of its admissibility will be deft with sometime before preparing the judgment" (emphasis mine). There is nothing in the record to show that the issue of the admissibility or otherwise of the marriage certificate was determined by the trial court. In fact the court delt with this issue in the judgment (supra). In dealing with the marriage certificate the trial magistrate said since it did not show in the marriage certificate whether the marriage was monogamous or polygamous, then the court will look at "the circumstances of the respondent's life as a whole." The issue of admissibility was not decided. 5 Learned counsel for the appellant argued ground one of the appeal at length. The ground of appeal is drafted as follows: "The trial court erred in law and in fact by holding that there was marriage between the appellant and the respondent. ✓, Learned counsel argued that as the appellant was legally married, he could not contract another marriage. He referred the court to section 38 (1) (c) of the Law of Marriage Act [Cap. 29 R.E. 2002] and a litany of authorities, notably Ramadhani Mohamed Vs. · Omar Ramadhani [1976] TLR n. 8; Francis Leo Vs. Paschal Simon Maganga [1978] TLR n. 22; Raphael Dibogo Vs. Frabinus Wambura [1975] TLR. N.

42. The respondent said she was married to the appellant under customary law and that there were witnesses to that marriage. After that ceremony, the respondent changed her name to Asha Nyakyoma. The respondent then went on: "Even if it follows therefore that the appellant contracted civil marriage with one Rachel Gadi 6 ( Kasele, and again contracted customary marriage with. the respondent thus the same is presumed potentially polygamous thus the appellant had capacity to contract the customary marriage" And then concluded:- "The act of the appellant to contract customary marriage with the respondent which was not objected, can be proof as to the nature of the marriage the appellant contracted with one Rachel Gadi Kazele to be potentially polygamous. Therefore the parties had capacity to marry and their marriage is valid. I do not quite understand what the respondent wants to say. But if I do my answer is this. The nature of any marriage is never changed by a subsequent relationship or "marriage". A monogamous marriage will remain as such unless converted under the provisions of section 11 of the Law of Marriage Act [the Act]. 7 There is no reason why the trial court failed to decide on the exhibit of the marriage certificate. No reasons were given by the respondent why she thought the certificate was forged. It was not proper for the trial magistrate to rule on admissibility

of an exhibit in a judgment. That has the effect of prejudicing the other side because they have no time to show that the certificate is not forged. In my considered opinion, the certificate of marriage should have been admitted in evidence. And with that finding, under section 10 (2) (b) of the Act, the marriage between the appellant and Rachel Gati Kazere is monogamous. The appellant was incapable of contracting another marriage, customary or otherwise. His relationship with the respondent was adulterous. That the respondent changed her name is of no consequence. I therefore uphold the first, 2nd and third grounds of appeal. The 4th ground of appeal has also, in effect, been answered. Section 10 (2) (b) of the Act is clear, if read together with section 10 (2) (a). A civil marriage is presented monogamous unless the contrary is proved. There was no such proof to the contrary. 8 (, 'l Ground number five is a duplication and so needs no answer. Ground number 6 deals with the issue of parentage of the second child. The issue thereof should have been delt under normal law of evidence rather than under affiliation. There was no proof that the 2nd child was fathered by the appellant. On the house at Block K house No. 260, there cannot be matrimonial property without matrimony. The house belongs to the appellant, pure and simple because it is built on his plot. There cannot be

maintenance without evidence. There was controversy on parentage of the 2nd child. The first child is mature. Without proof of parentage, there cannot be maintenance. I allow ground 8 of appeal. ' On the foregoing, I allow the appeal, I quash the judgment of the lower court and set aside the decree. The appellant shall have his costs. JUDGE,_ 9 . Delivered. For the appellant: Present in person. For the respondent: Kitururu. 1,383 words 10 -