19751003 TZHC Musoma

Ø '- 4cyrl :: TC CT.1 AT M\TIL.NZA (Pa) CIVIL APMZ No. 88 OF 1975 (Pron the dcc ision of tho district court c± wjona at sorla in Civil Appeal No. 38 of 1974 bof ore J.L. LTboneko, Esci. D.M. and Urban Prinary Court Lsoua Civil Case No. 16/74S MIaHALIND1J,.,..,.,...,.....ArPELLLT versus NYATTJNGEZI L1JOIE . , . . . . . FESPONDENT JXENENT 1UGING-II?JL 2 AG , J.: The apoellant lived with the respondent's clanghtor in concubinage for eight to nine years. Four children were born of the union. In 1972 the rcspondonb's daughter died. Her husband fro:o. whom she had net boon legally divorced -book custody of the four children. The appellant then connoncod those proceedings against the respondent claiming the said children. The Urban Primary Court at Musona dismissed the action. It was hold that the children bolongcd to the lawful husband. The appellant appealed to the District Court but the appeal was referred tO this court on the ground that this was a matrimonial proceeding. Section 80 (1) of the Law of Marriage Act, 1971 indo, provides that appeals in Llatrmonial procOodings shall lie direct to this comrt fron the trial court. Thre is now no controversy about that. It has boo-n so stated and repeated on every available opportunity. And it has been emphasised that matrimonial procoodiugs ar those which are brought under Part II or VI of the Act. It has now to be stated as well that matrimonial procoodings arc those founded on naGrmonyo In the "Dictionary of English Law", Vol. 2, 1959 ed., "natri'o1" is defined to non 11mar7'iagc; the nuptial state; the contract of nan and wife". Hero, •thrc was no narriago 9 no ntial stat., no contract of-man and wife. It was stated, and this the appal- lan-b also lmow, tha -h the woman had a legal husbaad when the appcllanb kept her or was kept by her. There was evidence that in 1968 he was advised by the respondent to pay dor of 14 hOad of cattle so Uhab the w0r2.an's legal husband could be paid off. This he igncred. There wac then no matrimony which could give rise to matrimonial proceedings. In that event this should have been treated as a claim for patenity, rather than custody, and dealt with as a normal civil suit. For the reason s -ba-bed above I will rotuDn the appeal to the District Court to be heard on its marl -ba. The appellant is permitted to conduct it at no extra cost in that court if he is s-bill anxious to pursuo his doubtful claim. I will make no order as to costs. 'MUSO, 3rd October, 1975. AG, JTJTDG-E