KIPANGAS LOGELI VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTY OF ARUSHA AT ARUSHA CIVIL APPEAL No. 73 OF 2023 (Originating from the decision of the District Magistrate Court of Monduli at Monduli in Civil Appeal No. 6 of 2023 ) KIPANGAS LOGELI................................................................................ APPELLANT VERSUS TOPISTA JOSEPH MUSHI..................................................................... RESPONDENT JUDGMENT 13 June & 23 July,2024 KAINDA, J.: This is a second appeal. The facts of the case briefly stated is that, the respondent filed a matrimonial cause at Kisongo Primary Court where he sued for division of jointly acquired properties between her and the appellant. From the evidence on record, it is not in dispute that the appellant and the respondent had cohabited for about twenty-two years from 1991 to 2013. It is also not in dispute that the society surrounding them recognized them as husband and wife. 1 | Page According to the petition filed at the trial Court, the respondent claimed that at the time of their cohabitation the couple acquired several properties including fifty acres' farm at an area known as Lorkisale, sixty acres' farm at Kiteto area, a seventeen roomed house at Duka Bovu village, a five roomed house at Duka Bovu Village, a tractor Ford make, a motor vehicle Suzuki Vitara make, three cows, eight goats, a 30 x 30 feet piece of land at Duka Bovu Village. After a full trial the trial Magistrate found that the parties had not contracted formal marriage, rather they lived under presumption of marriage. The Court found that they were entitled to have their jointly acquired properties divided between them. Thereafter, the properties were divided as follows, I quote page 20 - 21 of the typed proceeding: "Mahakama hii inaona kuwa Mdai anastahili kupata mgao wa ma/i zote ambazo walishiriki kuzitafuta pamoja kwa kipindi chote cha miaka 22. Trekta, Nyumba ya Kitongoji cha Duka Bovu, Gari, Mashamba na Mifugo.... Mdaiatapata asHimia 40 na Mdaiwa atapata asiiimia 60...". The appellant was discontent by the division, his appeal to Monduli district court was unsuccessful, still undaunted, he preferred an appeal to 2 | Page this court with five grounds. In essence, 1st 2nd, 4th and 5th grounds attack the finding of the District Court on division of the matrimonial properties while the 3rd ground faults the first appellate courts' decision to uphold division of the properties while the marriage between the parties still exists. At the hearing of the appeal, the appellant was represented by Mr. Daud Haraka, learned counsel whereas the respondent enjoyed the service of Ms. Ekaeli Michael, also learned counsel from Tanzania Women Lawyers Association. In support of the appeal, Mr. Haraka submitted that the first appellate court misdirected itself by upholding the decision of the trial court on the division of matrimonial assets while it was not supposed to deal with the appeal which had a serious irregularity where matrimonial assets were divided in a normal civil suit by looking at the pleadings. Therefore, given the fact that the case was not a matrimonial suit but rather a civil suit, the first appellate Court was not supposed to re - affirm the finding of the trial court. On the second premise, Mr. Haraka submitted that the first appellate court failed to re - evaluate the evidence which had caused miscarriage of 3 | Page justice on the part of the appellant. He submitted that the first appellate court was duty bound to re - evaluate the evidence as to whether properties listed as matrimonial assets were surely assets jointly acquired by the parties and gave an example of fifty acres' farms at Lorkisale and Kiteto, and a vehicle Suzuki Vitara make which there is nowhere in the records where they had been shown to exist. Yet, the same were divided. In this regard, Mr. Haraka requested for this court to re appraise the evidence and draw inferences of fact different from those drawn by the first appellate court. He cited the cases of Selle and Another Versus Associated Moter Boat Company Ltd and Others (1968) E.A 123 at page 126; Martha Michael Wejja Versus AG and 3 other (1982) TLR 35. As to 3rd ground of appeal, Mr. Haraka submitted among other things that, the first appellate court erred to confirm trial court order for division of matrimonial properties while the marriage between the parties still exist. He cited Sections 99 and 111 (2) (b) of the Law of Marriage Act, Cap 29 (R.E 2019) which provides that no division of matrimonial properties unless and until the court has been satisfied that the marriage between the parties has 4| Page been broken down and is irreparable. Then, a decree of divorce or separation may be granted. In conclusion, he submitted for the appeal to be allowed with costs, the proceeding, findings and orders of both lower courts below to be quashed and set aside. In reply, the respondent submitted that the two courts below scrutinized the efforts of each party to the marriage in acquisition of matrimonial assets and that there is nothing to convince this court to depart from the concurrent findings of the courts below. As to the complaint relating to the nature of the claim, that the matter was filed as normal civil suit and not a matrimonial, she submitted that the error is curable because did not change the meaning of what was before the court. It was a slip of pen did not go to the merit of the case. In regard to third ground, that the marriage has never been dissolved, the respondent submitted that the court found out the marriage was irreparably broken down and it granted decree of divorce. She prayed for this court to dismiss the appeal with costs for being without merit. 5 | Page In his brief rejoinder, Mr. Haraka reiterated all what he submitted in chief. After going through the arguments by the parties, the issue to be determined by this court is whether this appeal is merited. In deciding this appeal, I will start with 3rd ground on allegation that the marriage between parties still exist since no decree of divorce was issued. The fundamental question is whether there was a legal requirement for the trial court to issue an order for separation or divorce before embarking into division of properties between the parties. The immediate focus of my attention must be section 160 (1) and (2) of the Law of marriage Act, Cap 29, R.E. 2019. In the matter at hand, there is no dispute that the parties lived together for about 22 years. Upon scrutiny of the evidence on record, it is quite clear that the community surrounding the parties to this matter considered the two as wife and husband. 6 | Page The issue for determination as stated above, is whether, upon establishing the presumption of marriage as per Section 160 (2) of Cap 29 R.E 2019, the court has power to make subsequent orders or reliefs including division of matrimonial properties. I am of the considered view that, basing on the available decisions, a decree of divorce or separation must have been issued before any court considers the division of matrimonial properties. In the case of Marcel Kichumisa v. Mary Venant Kabirigi, Civil Appeal No. 52 of 2020, the Court of Appeal stated, I quote; '... the condition precedent before the distribution of matrimonial property in the country for any type of marriage recognized is that there should be a decree ofseparation or divorce' In another case of Gabriel John Musa v. Voster Kimati, Civil Appeal No. 344 of 2019, the presumption of marriage was not contested like our case at hand, the trial court proceeded directly to divide the matrimonial property. On appeal, the Court of appeal quoted the provisions of Section 160 (1) and (2) of the Law of Marriage Act and stated; 7 | Page uFollowing the above provisions, it is dear that the courtis empowered to make orders for division ofmatrimonial assets subsequent to granting of a decree ofseparation or divorce." In the case at hand, it was improper for the trial court to frame issues leaving apart an important issue of whether the relationship between the parties were irreparably broken down or otherwise. To this end, I find the appeal merited and I allow it. Proceedings of the trial court from the stage of framing of the issues is nullified, judgment and the subsequent orders thereto are quashed and set aside. The district court proceeding is also nullified. Judgment and subsequent orders are hereby quashed and set aside as they emanate from a nullity proceeding. Consequently, I remit the case file to the trial court with a direction that, the hearing starts afresh from the stage of framing of issues before another Magistrate. This matter being matrimonial in nature, I make no order as to costs. DATED at Arusha this 23rd day of July,2024. JUDGE 8 | Page