RICHARD JUDGEMENT

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANDAMBO, J.A.. KIHWELO, 3.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 199 OF 2023 RICHARD CHRISPINE SILAYO.................................................... APPELLANT VERSUS MONICA SERAFINI................................................................ RESPONDENT (Appeal from the judgment and decree of the High Court of Tanzania at Moshi) (Simfukwe. 3 .} dated the 14th day of November, 2022 in Matrimonial Appeal No. 6 of 2022 JUDGMENT OF THE COURT 21st & 26th March, 2025 MWAN DAM BO, J.A:. Before us in this appeal, the issue for our determination involves division of properties between the appellant and respondent acquired from an estranged relationship in the form of a presumed marriage supposedly acquired the status of husband and wife. The issue arises from the facts which are, by and large, common cause. The appellant and respondent were intimate partners. It was not disputed that they cohabited for far more than two years in a style similar to as husband and wife during which, they were blessed with two issues. Out of that cohabitation, the parties acquired some properties, in particular, a house at Msangai, Kimanyatu Usseri, Rombo District, a house at Kibosho road, Moshi District and another house at a place called Mbomai in the same District. In the year 2018, the relationship became sour resulting into the appellant abandoning the respondent with the children. Subsequently, the appellant contracted a Christian marriage with another woman in November 2019. Believing that the long cohabitation crystallised into marriage capable of being dissolved, the respondent petitioned before the District Court of Rombo praying for, among other reliefs, a declaration that there was a presumption of marriage between her and the appellant; an order for dissolution of the marriage by the grant of divorce followed by ancillary reliefs, that is, custody of the children, division of matrimonial assets and maintenance. In his reply to the petition, the appellant denied each averment putting the respondent to strict proof. After hearing the parties, the District Court was not satisfied that the respondent discharged her burden of proof in support of the declaration that the cohabitation had the character of a husband and wife. It declined to make the declaration that there was a presumption of marriage between the parties in the manner provided under section 160 (1) of the Law of Marriage Act (the Act). Having so found, the trial court rejected the respondent's reliefs in connection with dissolution of the marriage and, in consequence, division of assets claimed to have been acquired during the subsistence of the rebutted marriage. It only granted the respondent custody of the children and maintenance of TZS. 200,000.00 monthly. The respondent successfully appealed to the High Court at Moshi (Simfukwe, J.). Guided by section 160 (2) of the Act and the Court's decision in Hemed S. Tamim v. Renata Mashayo [1994] T. L. R. 198, the first appellate court took the view that, despite the fact that the appellant successfully rebutted the presumption of the marriage, the respondent was entitled to division of assets jointly acquired during that relationship. On the evidence, the first appellate court was satisfied that the parties had indeed jointly acquired some assets during the existence of their long cohabitation, that is to say; a house at Kibosho road in Moshi Municipality, a residential house at Msangai village and commercial house at Mbomai village. In the end, the High Court made a division of the house at Mbomai village to the respondent and the residential house at Msangai to the appellant. The division of the house at Kibosho road was made at 70% - 30% to the appellant and respondent respectively. The appellant was ordered to compensate the respondent by paying her 30% of its value based on official valuation. From that decision, the appellant has appealed to this Court upon a 3-points memorandum of appeal. Closely examined, the 2nd and 3rd grounds raise a similar complaint faulting the High Court allegedly, for holding that the parties acquired the status of husband and wife in the absence of proof of contracting any marriage. Ahead of the hearing, the appellant lodged his written submissions in support of his appeal which he stood by at the hearing of the appeal at which he appeared in person, unrepresented. So did the respondent in reply. The respondent also appeared represented by Mr. Gideon Mushi, learned advocate. The appellant had nothing to say in addition to his written submission which he asked the court to consider and determine the appeal in his favour. Mr. Mushi had nothing useful to add to the written submissions in reply and prayed for an order dismissing the appeal with costs. For convenience we wish to begin our discussion with the 2nd and 3rd grounds which raise the issue whether, in the absence of any proof of a marriage, the High Court was right in holding that the parties acquired the status of husband and wife. The appellant's submission on this was that since he never contracted any marriage with the respondent, and the fact that he only visited the respondent during weekends, their relationship was simply one of concubinage as opposed to that of husband and wife. According to him, it was erroneous for the first appellate court to hold as it did that, the appellant and respondent acquired the status of husband and wife. On her part, the respondent maintained her stance that the High Court held correctly that the parties had acquired a status of husband and wife by reason of their long cohabitation. After examining the judgment of the trial court and High Court, subject of this appeal, there is no doubt that the appellant's complaint in the 2nd and 3rd ground is misconceived. It is glaring that, before the District Court, the respondent petitioned for a declaration that the long cohabitation with the appellant crystallised into a marriage capable of being dissolved by the grant of a decree of divorce. The reliefs sought were premised on the assumption that the conditions for existence of a presumed marriage under section 160 (1) had been met. The trial court found the evidence proving existence of a presumed marriage in which the parties had acquired the status of husband and wife was wanting. With respect, that was a correct finding since, presumption of marriage under the section is not cast on stone, rather, rebuttable. That finding was sustained by the first appellate court which stated: '7/7 the circumstances o f this case, the fact that the appellant and respondent had relationship, as testified by the respondent and the appellant together with their witnesses, and that they were blessed with two issues, suffice to conclude that the two were living under presumption o f marriage despite the fact that the respondent has rebutted the said presumption..." [At page 104 o f the record]. The above is too clear to be construed as the appellant does that, the High Court held that the parties had acquire the status of husband and wife. Contrary to the appellant, the first appellate court meant, and this is what it said that, notwithstanding their long cohabitation and the blessing of two children, the appellant successfully rebutted that presumption. That means, their relationship did not create the status of the parties living under one roof as husband and wife. In the upshot, there is no merit in the 2nd and 3rd grounds and, we dismiss both of them. Next, we shall deal with the 1st ground in which the appellant faults the first appellate court for distributing properties which were not acquired jointly. In his submission, the appellant contends that the house at Msangai was not acquired jointly but given to him as a gift by his parents. Regarding the house at Kibosho road, the appellant argues that he acquired it single handedly without any contribution from the respondent or evidence of contribution towards its improvement. In relation to Mbomai house, the appellant concedes that it was acquired from farming business for the benefit of the two issues from their relationship and that, since he has no intention of evicting the respondent from that house, there was no need for the High Court to make an order of division. The respondent supports the High Court for ordering division as it did. We shall preface our discussion in this ground with examination of the pleadings. In para 13 of the petition, the respondent averred that, during the subsistence of the marriage with the appellant, they acquired two houses at Msangai, Kimanyatu, Usseri and a plot with a house with three bed rooms at Kibosho road, Moshi District. In his reply (at pages 15 and 16 of the record), the appellant strongly disputed the respondent's averment putting her to strict proof. The appellant's evidence at page 35 of the record, focused on how he was involved in farming activities and the fact that, out of such activities they bought a land at Mbumai village where they built a 3-bedroom house and later he built another house for commercial purposes. Although the respondent did not include in her petition the house at Mbumai, the appellant's evidence constituted an admission that the house was acquired with the joint efforts with the respondent. It was also his evidence that the house at Msangai was a family house where he was born and raised. Earlier on, the respondent had it in her evidence that they had plots of land in Rongai Forest where they grew maize and potatoes under her direct supervision and the harvest was sold by the appellant whose proceeds were utilised for buying a house and acquiring a plot at Kibosho road from one Oisso. The respondent also alluded to a wooden house they built at Msangai village. It was also her evidence that, the certificate of occupancy for the house at Kibosho road was in their joint names but she could not produce in evidence the said certificate because it was in the appellant's possession. It will be recalled that, since the trial court took the view that no division of assets could arise from a rebutted presumption of marriage it refrained from making any finding on the acquisition of assets by the joint efforts of the parties during their abortive marriage. The 2nd and 3rd grounds of appeal sustained by the first appellate court related to division of matrimonial assets. As hinted earlier on, in her petition, the respondent made reference to two houses at Msangai village and Kibosho road and gave evidence on them. It is common cause that, the appellant made general denials in his reply to the respondent's averments in the petition. That takes us to Rule 23 (3) and (4) of the Law of Marriage (Matrimonial Proceedings) Rules, G.N. No. 136 of 1971 which stipulate; "(3) Every answer shall contain a concise statement o f facts upon which the respondent, or as the case may be, the co-respondent, will rely for his defence. (4) It shall not be sufficient for a respondent or a co­ respondent in his answer to admit generally the grounds alleged by the petitioner, but the respondent or, as the case may be, the co­ respondent, must deal specifically with each allegation o f fact o f which he does not admit the truth." The above is substantially similar with Order VIII rule 4 of the Civil Procedure Code (CPC) prohibiting litigants (defendants) from making general denials of allegations made by plaintiffs which provides in part that: "Where a defendant denies an allegation o f fact in the plaint, he must not do so evasively, but answer the point o f substance...." There is no denying that the respondent had a burden of proof of acquisition of the house at Msangai village and Kibosho road by the joint efforts with the appellant, the appellant's reply offended the provisions of rule 23 (3) and (4) reproduced above. It was in the form of evasive denials which amounted to admissions of the respondent's averments in the petition. The consequences befalling on evasive denials in pleadings was discussed by the High Court (Massati, J.- as he then was) in Scandinavia Tours Limited v. CRDB Bank of Limited [2007] T.L.R. 133 in which, like here the plaintiff made evasive denials in his reply to the 10 counter claim in relation to indebtedness of a specific amount. The learned Judge stated: "Under rule 4 o f O. VII o f the Civil Procedure Code that amounts to an evasive denial. The Plaintiff, in my view, having disputed the amount due, was required to have set out how much he owes to the Defendant The effect o f not specifically denying the amount outstanding amounts, in terms o f O. VIII rule 5, to an admission by the plaintiff o f the sum claimed..." With respect, that reasoning reflects a correct position to which we subscribe. Subjecting the above to the instant appeal, had it been true that the house at Msangai was given to the appellant as a gift by his parents, he ought to have denied expressly in his reply that it was not a jointly acquired asset but given a gift from his parents. The same applies to the house at Kibosho road. Concealing such facts to his sleeves in the reply and bringing them in his evidence was, with respect, at the appellants risk. That means, we cannot disturb the finding of the first appellate court that the house at Msangai village and Kibosho road were acquired through the joint efforts of the respondent and appellant during their long cohabitation thus, capable of division in terms of section 160 (2) of the Act consistent with the Court's decision in Tamim v. Renata Mashayo (supra). Consequently, we find no merit in this ground and dismiss it. That said, the appeal is held to be devoid of merit and we dismiss it. As Mr. Mushi withdrew his prayer for costs, we order each party to bear his/her own costs. DATED at MOSHI this 26th March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2025 in the presence of the Appellant in person and Mr. Gideon Mushi, learned counsel for the Respondent, is hereby certified as a true copy of the original.