20100430 TZHC Arusha

IN THE HIGH COURT OF TANZANIA I AT ARUSHA I PC. CIVIL APPEAL NO. 41 OF 2001 KITETO DISTRICT COURT MATR. APPEAL ~O. 40 OF 2000 (ORIGINAL KIBAYA PRIMARY COURT MATRIMONIAL CAUSE NO. 8 OF 2000) KOPEJO ALARRARUU .~ .................. A~PELLANT VERSUS i MOTOSIAN ARKILIKO .............. RESPONDENT JUDGMENT CHOCHA, J. In this appeal, Kopejo Alarraruu filed 9n appeal through Nyangarika and Company Advocates. He shall hereinafter simply be referred to as the appellant. - The respondent is Notosian Arkiliko. The appellants surname has not been consistently spelt. According to the trial and this courts' records it reads ALARRARUIJ. The 1st appellate record spells the same/to be ALARAU. The first name KOPEJO is unchanged. My quick finding is that I all names were intended and actually refer to the same person. The appeal has dragged in Court for 8 years now. It has changed hands before three judges before it was ~eassigned to me. According to the record, the respondent's last appearance ' before this court was on the 25/08/2003. Since then, she went missing until when it was resolved that the appellant should be 1 i', allowed to proceed exparte. The appellant through her lawyer, requested to argue the appeal by way of written submission. Therein, the appellant advanced three basic grounds:- 1. That the 1st appeal was time barred. 2. That the appellant was not given audience during the trial. 3. That the respondent's children are, in accordance with the Masai customs, the appellant's lawful children. I will straightly go to the first ground regarding whether the 1st appeal is time barred. The appellant's counsel properly invoked the provisions of Section 20(3) of the Magistrates' Courts Act as a legal basis to calculate the appeal's time frame. He says there was a lapse of more than four months from the trial court's judgment to the date of filing an appeal. (17/10/2000 - 24/04/2001).The appellant did not disclose the basis of his records. Unfortunately I did not locate the ERV for payment of fees during the first appeal which would provide a conclusive answer. It is nowhere in the 1st appellate court record, and the respondent in this appeal did not turn out to give a helping hand on the issue. The missing receipt notwithstanding, I am unable to agree with the appellant that the 1st appeal was filed on the 24th April, 2001. The 1st appellate record reveal that by 04th December 2000, there was an appeal and on that date it was placed before the PDM for orders. The appellate magistrate would have nowhere to make his 2 orders if the appeal was not existent. The proceedings further reveal that on the 24th April 2001, the appellate magistrate simply directed to have the memorandum of appeal amended to suit the compelling circumstances. As matters stand, the appeal was existent on and before 24th April 2001. To be exact, it was in place even before 4th December 2000 when the appellate magistrate attended to it for the first time. So computing from the date of the judgment of the trial court (17/10/2000) to at least the date of first placement of the record before the 1st appellate magistrate, (04 December 2000), it is hardly 17 days after the lapse of 30 days required time stipulated u/s. 20(3) of the MCA. Immediately underneath, (Section 20(4) of the same MCA), the District Court has powers to extend time for filing an appeal. Certainly, there was late filing of the appeal by 17 days, which the 1st appellate court is deemed to have exercised powers quite properly, to admit it in terms of Section 20 (4) of the MCA. Considering the remoteness of the places where according to the record the parties were hailing, and their illiteracy on legal procedural know how combined with the District Court's powers enshrined in Section 20 ( 4) (supra), I am slow to penalize the respondent. The late filing is not fatal. The ground is dismissed. The appellant through the counsel is complaining that she was not attended during the trial. Her evidence was not taken. On account of this omission, the learned counsel proposes that all lower 3 ~ courts' proceedings should be quashed. The scenario which the learned counsel is creating is, unless he had a different contemplation, that as against his client, the case proceeded and was decided exparte during the trial. -rhis is the only account I can figure out and assign to this scenario. I wish to put things proper in the first place. It is not very true that Kapejo Lekundayo was the one who appeared throughout the lower courts' proceedings as the learned counsel put it. Whereas it is true that Kapejo Lekundayo featured at the trial as the defendant albeit all pleadings appearing in the name of KAPE.10 ALARUU, the said Kapejo Alarraruu, personally appeared and addressed the court during the 1st appeal. It should be born in mind that the 1st appeal was taken at the respondent's instance, particularly against the trial court's order regarding the question of legitimacy of children. Otherwise, the appellant was comfortable with the trial court's decision, more so because an order for children's custody was in her favour. Moreover, there was no complaint whatsoever during the 1st appeal with regard to parties' representation at the trial. It is brought to the attention of the parties, and to the memory of the learned counsel that: 'Wo decision or order of the Primary Court or a District Court under this part shall be reversed or altered on appeal or revision, on account of any error, 4 omission or irregularity in the complaint , any process or charge, in the proceedings before or during the hearing, or in such decision or order or on account of improper admission or rejection of any evidence, ,' unless such error, omission or irregularity or improper admission or rejection of evidence has intact occasioned a failure , ofjustice'~ This wisdom is contained in Section 37 (2) of the Magistrates' Courts Act. I Assuming that the omission to record the appellant's evidence which has the effect of rendering the trial courts' proceedings exparte is fatal, the remedy would not be to quash the proceedings. It would rather be to set aside the said exparte proceedings in terms of Rules 29 and 30 of the Primary Court Civil Procedure Rules - GN 310/64. I am wondering whether there are any meaningful consequences to parties considering the context of Section 37(2) of the MCA vis a vis the complaint that there was an ·omission to record the appellant's evidence. The test here is wh~ther the omission occasioned any failure of justice. Looking at the issue from the Masai customary point of view to which all parties belong, it appears female marriages is recognized and acceptable; There are such similar reported cases especially from amid the cattle keeper oriented communities, where a 5 - wombless woman is deemed to be capable of marrying. Let me deffer my conclusion on this issue and jump over to the question of legitimacy of children. As may be appreciated, the point has been intimated in the just preceeding para where we see cattle oriented communities advocating on the validity of women marriages. The legitimacy of children is strictly speaking, a product of the legitimacy of the marriage. The legitimacy of marriage in this context refers to the biological ability to consummate. Therefore marriage cannot be deemed or inferred, which is why inability to consummate, among others, constitutes a good ground for divorce. Sight should not be lost on the worldwide public outcry condemning gays' or homosexual associations. These do not qualify to be marriages which u/s 9 of the Law of Marriage Act Cap 29 RE 2002 strictly refers to a voluntary union between man and woman. Beyond this version, a union is rendered to a mere sexual association. Gays and homosexuals have not been legally accepted in Tanzania like it is in many other countries. One of the conspicuous fundamental characteristics of marriage is a productive consummation, which is what gays and homosexuals can never achieve for simple reason of purporting consummating but against biological features. So, a child's primary legitimacy derive from a biological union of man and woman. The child remains illegitimate even if he is brought up by a family (loyal or royal)/ provided that one of the spouce is not his/her biological parent. This is what the respondent was striving for in the 1st 6 • appellate court, to wit, the recognition of the chi,ldren's biological status. There is no doubt that both the appellant an~ respondent are females. The appellant is expressly confessing: before the 1st appellate court that she 'married' the respondent, in order for the later to bear for her children as she was herself unable. She categorically said she appointed one of her sons fqr the job. She is therefore naturally not one of the disputed children's biological parent. She cannot under the circumstance$ claim and no reasonable court can award her parental status. I am deadly certain ' that, neither payment of dowry how~ver huge, nor subsequent children's wishes can convert biological parental status, not even by ' adoption. In this regard my final remarks to the 2nd and 3rd grounds are in the negative in that the omission to have the appellant's evidence recorded did not occasion failure of justice for s,imple reason that, that would not transform her to a biological parent.I What reliefs can I offer? I My lengthy evaluation notwithstanding, the immediate available remedy is to nullify the proceedings from th~ grassroot which necessarily leave the 1st appeal with no fulcrum to:stand. WHY? A petition for divorce is enforceable in a court of law under the circumstances stipulated u/s 43 of the Law of :marriage Act on a valid marriage. The appellant's/respondent's :association did not 7 I constitute marriage at all. The purported marriage was "ex facie" I illegal thus not enforceable. I I The proceedings of the lower courts are quashed for being I NULL and VOID. Each party to bears her own oosts. ------- N.P.Z. CHOCHA JUDGE , ( ; 1/ 30/04/2010 NPZC/PJL. 8