rahma hamis

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY

AT TABORA MATRIMONIAL APPEAL CASE NO. 11108 OF 2024 {Arising from Nzega District Court in Matrimonial Appeal No. 09 of2023 Originating from Matrimonial Cause No. 10 of2023r Nzega Urban Primary Court) RAHMA HAMIS MUNNA.... APPELLANT

VERSUS ROBERT MADARAKA LUMANYIKA ............. ................... RESPONDENT

JUDGMENT Date ofLast Order 13/08/2024 Date of Delivery: 18/09/2024 KADILU, J. In Nzega Urban Primary Court, the appellant petitioned for a divorce order, division of matrimonial property, custody, and maintenance of the child of marriage. She alleged that she was a lawful wife of the respondent from 2003 to 2018 when the latter stopped maintaining her and evicted her from their matrimonial home. The respondent refuted the allegation that the appellant was his wife, though they lived together since 2009 and were blessed with one child. After hearing both sides, the trial court found that the parties were married but the marriage was broken irreparably. The trial Court granted the reliefs prayed by the appellant and ordered the issue of marriage to be under the custody of the appellant. Dissatisfied with the decision and orders of the trial court, the respondent successfully appealed to the District Court of Nzega. Essentially, the District Court of Nzega found that there was no valid marriage between 1 the parties. Aggrieved, the appellant filed the instant appeal in this court armed with the following grounds: 1. That, the first appellate court erred in law by holding that there was no valid marriage between the appellant and the respondent without considering the doctrine of estoppel towards the respondent's action on the trial court.

2. That, the first appellate court erred in law by holding that there was no valid marriage between the appellant and the respondent without considering that the respondent changed his religion and became a Muslim for their marriage celebration and that, Yusuph M. Rumanyika and Robert Madaraka Lumanyika mean the same person who is the respondent herein.

3. That, the first appellate court erred in law by holding that the appellant failed to prove the existence of marriage on the balance of probabilities. The respondent filed a reply to the petition of appeal in which he contended that he did nothing during the trial, which indicated the existence of a valid marriage between them hence making the doctrine of estoppel apply against him. He also refuted the allegation that he changed religion from Christianity to Muslim for marriage purposes. The respondent argued that he could not contract a valid marriage with the appellant because, at the time of the alleged subsequent marriage, he had a subsisting monogamous marriage with one Esther Alexander. The appeal was disposed of by way of written submissions. The appellant enjoyed the drafting services of Advocate Frank Severine Kavishe whereas the learned Advocate Joseph Kinango served the respondent. I am now in a position to determine the grounds of appeal and in my 2 determination, I wifi consolidate the three grounds of appeal because they are intertwined. The submissions by the learned Advocates shall be considered in the course of the discussion. I have scrutinized the grounds of appeal and found the contentious matter between the parties is whether there was a valid marriage between them. While the appellant contends that she duly married the respondent in 2003, the latter

dissociates himself from the alleged marriage. Therefore, the issue for determination in this appeal is whether the parties had contracted a valid marriage. Section 9 of the Law of Marriage Act [Cap. 29 R.E. 2019] defines marriage as the voluntary union of a man and a woman, intended to last for their joint lives. It is also the law that marriage can be monogamous, polygamous, or potentially polygamous. A perusal of both lower courts' proceedings shows that the trial court concluded that the parties contracted Islamic marriage therefore, it proceeded to dissolve it and issued ancillary orders. The law states clearly that Civil and Christian marriages are monogamous while Islamic and Customary marriages are potentially polygamous. Mr. Kavishe argued that when the respondent was cross-examined in the trial court, it came up that he had burnt a marriage certificate, an allegation which he never contradicted. He also told the trial court that he contracted a civil marriage, but the story changed in the first appeal court where he said that his first marriage was a Christian monogamous marriage. According to Mr. Kavishe, the respondent was doing window shopping on how he may escape the truth that he did not have a subsisting valid marriage when he married the appellant. Mr. Kavishe termed it as an 3 afterthought argument which is forbidden in our jurisdiction. The learned Advocate

added that the respondent testified that he decided not to divorce in the best interest of the child who would have lost maintenance and suffered psychologically. Mr. Kavishe called upon the court to stop the respondent from denying these facts because refuting them at this juncture is nothing but an afterthought to which he is to be stopped. Mr. Kavishe submitted in addition that the parties lived under one roof for about 20 years making it impossible to believe that there was no marriage between them. To him, the marriage was proved by using a copy of the certificate tendered by the appellant. He added that the respondent contracted Islamic marriage with the appellant after he was converted to Yusuph M. Rumanyika as his Islamic name. So, the appellant proved the existence of a valid marriage between her and the respondent by his other name Yusuph M. Rumanyika. According to Mr. Frank, the first appeal court erred in ruling out that there was no Valid marriage while disregarding the fact that the respondent changed his religion to Muslim for their marriage celebration. On his part, the respondent stated that he contracted a civil marriage with Esther Alexander in 1990 and were blessed with five children. He added that they lived peacefully until 2012 when his wife discovered that he had extramarital affairs with the appellant. He argued that since the marriage between him and

Esther Alexander was not dissolved, their marriage is still subsisting despite some challenges. The respondent contended that the appellant had a duty to prove that she had a marriage certificate and the respondent was the one who set the said certificate on fire. 4 He explained that there is no dispute that the appellant and the respondent lived together for some time as a result, they were blessed with a child but that alone cannot be taken as conclusive proof that the parties were married under the law. According to the respondent, marriage is not proved by mere words. For the parties to be said to have been married in law, certain legal conditions ought to be met. According to the respondent, he had a valid marriage with Ester when he started conjugal affairs with the appellant so the purported marriage with the appellant was legally invalid. In the trial court, the respondent testified that he contracted a civil marriage with Esther Alexander in 1990. To support this allegation, the respondent tendered a marriage certificate, exhibit AH. This piece of evidence was not contradicted sufficiently by the appellant. There is nothing on record suggesting that the marriage between the respondent and Esther Alexander was dissolved at any point in time. It thus infers that in 2003 when the parties started cohabiting, the respondent had a valid subsisting monogamous marriage hence,

he could not marry the appellant. As hinted earlier, civil marriage is presumed to be monogamous unless the contrary Is proved. Under Section 9 (2) of the Law of Marriage Act, a monogamous marriage is defined as a union between one man and one woman to the exclusion of all others. Section 15 (1) of the Act prohibits a man who is married by a monogamous marriage to contract another marriage while the former monogamous marriage is still subsisting. In the circumstances, this court finds that the purported marriage between the appellant and the respondent was legally non-existent for want of the respondent's capacity to marry at the time of their cohabitation. 5 In my view, there is nothing to fault the findings of the first appellate court regarding the validity of marriage between the parties herein. For the aforementioned reasons, the question of the division of properties becomes irrelevant. Consequently, I dismiss the entire appeal for want of merits. I find it convenient that each party should bear his own costs. The right of appeal is fully explained.

JUDGE 18/09/2024 The judgment delivered in chamber on the 18th day of September, 2024 in the presence of both parties.

JUDGE 18/09/2024 6