JAMES SAMI

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA PC CIVIL APPEAL NO. 468 OF 2023 (Arising from Civil Appeal No. 36 of 2023 in the Magu District Court at Magu and Matrimonial Case No. 08 of 2023 in the Nyanguge Primary Court at Magu) SAMI JAMES………………………………………………………………….APPLICANT VERSUS PENDO METHUSELA MASALU…………………………………………RESPONDENT JUDGMENT 11th September & 10th October, 2024 KAMANA, J. In this second appeal. Mr. Sami James challenged the decision of the Magu District Court which sat as the first appellant court following an appeal preferred by Ms. Pendo Methusela Masalu, the respondent after being aggrieved by the decision of the Nyanguge Primary Court. For the reasons to be reflected in this Judgment, I see no reason to state the grounds of appeal in detail. Briefly, the appellant and the respondent started to cohabit since the year 2010. According to the appellant, they did not contract any marriage, the fact which is not disputed by the respondent. 1 In the year 2022, the relationship turned sour. In the appellant’s understanding, the conflict ensued when he refused to be baptized. Following such refusal, the respondent shifted to the other room. Not only that but also the respondent left him and went to Katoro and later returned. His efforts to resolve the dispute proved futile especially when the respondent was transferred by her employer to Kisesa from Mantale. On her part, the respondent cited the appellant’s laziness and omission to shtup her for a long time as the sources of their conflict. As I hinted earlier, this is the second appeal. As the general principle dictates, the court sitting as the second appellate court is not mandated to disturb the concurrent findings of facts by the lower courts. The exceptions are when such findings lead to irrational decisions, hence occasioning a miscarriage of justice. The Court of Appeal articulated this position in a plethora of authorities including the case of Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012-CAT (Unreported). In the said case, the Court of Appeal stated: ‘The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete 2 misapprehension of the substance, nature or non-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice.’ From the evidence adduced by the parties, the trial court correctly held that the parties contracted no marriage. It went on to conclude that there was a presumption of marriage. Having taken that position, the trial Court held that due to the evidence adduced by the parties, the presumption of marriage was no longer feasible. It proceeded to declare that the presumption of marriage has broken down irreparably. From there, the trial Court divided the so-called matrimonial properties. Aggrieved by the trial court's decision on the division of matrimonial property, the appellant approached this Court seeking redress. The first appellate court did not bother to re-assess the evidence adduced in the trial Court about whether there was a marriage or presumption of marriage or no marriage. It went straight to consider the evidence concerning the so-called matrimonial property. In its decision, the first appellate court altered the trial court’s decision by giving nothing to the appellant so far as the so-called matrimonial property was concerned. It is worth noting that the trial court gave the appellant 40% of the matrimonial property. 3 At this point, I consider that both lower courts misapprehended evidence and contravened principles of law. From the evidence adduced by the parties, there was no valid marriage contracted by them. The trial court held that there was a presumption of marriage. The first appellate court did not fault that. That being the position taken by the lower courts that there was a presumption of marriage, I asked myself whether the conditions for a presumption of marriage were in existence. To determine the question, I reproduce the provisions of section 160(1) of the Law of Marriage Act, Cap. 29 [RE.2019] as follows: ‘(1) Where it is proved that a man and woman have lived together for two years or more, in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable presumption that they were duly married.’ (Emphasis added). From the quoted provision, of essence is the rebuttable presumption that a man and woman were duly married. In principle, a rebuttable presumption presumes something to be true unless proven otherwise. Contextually, under section 160(1), it is presumed that a man and woman who lived together for two years or more to the extent of gaining a reputation of husband and wife were duly married unless proved otherwise. It is incumbent on the party who alleges the existence 4 of presumption of marriage to prove that there was a duly contracted marriage. In the instant case, the appellant, in his evidence during the trial, stated that he had no valid marriage with the respondent though they lived as husband and wife. That evidence was not disputed by the respondent who asserted that they had no marriage. From such evidence, it is crystal as clear that the appellant and the respondent were not duly married. That being the case, the presumption that they were duly married was cogently rebutted even though they lived together as husband and wife for more than two years and gained the reputation that they were husband and wife as evidenced by SM2. Since there was cogent evidence from the parties that they were not duly married, it was wrong for the trial and the appellate courts to conclude that there was a presumption of marriage. As I said earlier, a presumption of marriage stands when there is no evidence to the contrary that the parties were not duly married. See: Taplin - Watson v Tate (1937) 3 ALLER 105. Given that, the trial court misdirected itself by pronouncing that the marriage between the parties had broken down irreparably. Essentially, there was no marriage or presumption of marriage between the parties. It should be noted further that the courts have powers 5 under section 110 of the Act to grant a decree of divorce or separation. In my view, the decree of divorce or separation cannot be granted if the parties are not duly married. Hence, in the absence of evidence that the parties duly contracted marriage, the trial Court misdirected itself to conclude that their marriage was broken down irreparably. At this juncture, I wish to state that when the presumption under section 160(1) is not rebutted, the court must presume that the parties were duly married. However, such an assumption is not automatic as the party who alleges the existence of a duly contracted marriage bears the onus to prove that such marriage was duly contracted and he lived with the other party under the circumstances stated in section 160(1). In this, I wish to put it clearly that the presumption of marriage was not codified to validate cohabitation. In the absence of the evidence that the parties duly married, such presumption stands rebutted. Since I have held that the trial Court was not justified to declare that the marriage between the parties had broken down as there was no marriage between the parties, I now turn to determine the issue relating to the division of matrimonial property. According to section 114 of the Act, courts have powers to divide matrimonial assets upon granting the decree of divorce or separation. This means that as a general principle, 6 division of matrimonial property ensues when there is divorce or separation by the order of the court. However, there are exceptions to the general rule which is provided under section 160(2) of the Act. According to that section, when it is proved that the parties who cohabited for two years or more to the extent of being considered by the public as husband and wife but not duly married, the court may exercise its powers under section 114 of the Act by dividing the property as if the said property is matrimonial. In other words, the Act recognizes the rights of the cohabitants concerning the division of the properties acquired by them during the subsistence of their union envisaged under section 160(1) of the Act even though the presumption was rebutted. The section reads: ‘(2) When a man and a woman have lived together in circumstances which give rise to a presumption provided for in subsection (1) and such presumption is rebutted in any court of competent jurisdiction, the woman shall be entitled to apply for maintenance for herself and for every child of the union on satisfying the court that she and the man did in fact live together as husband and wife for two years or more, and the court shall have jurisdiction to make an order or orders for maintenance and, upon 7 application made therefor either by the woman or the man, to grant such other reliefs, including custody of children, as it has jurisdiction under this Act to make or grant upon or subsequent to the making of an order for the dissolution of a marriage or an order for separation, as the court may think fit, and the provisions of this Act which regulate and apply to proceedings for, and orders of, maintenance and other reliefs shall, in so far as they may be applicable, regulate and apply to proceedings for and orders of maintenance and other reliefs under this section.’ In this regard, I shake hands with the lower courts for exercising such powers under section 114 though under wrong premises. I say under the wrong premises because section 114 is applicable when there is a decree of divorce or separation. As I have held, there was no union warranting the divorce or separation. Hence, the correct provision to divide the property was section 160(2). This position was well articulated in the case of Hemed S. Tamim v Renata Mashayo [1994] TLR 197 where it was held: ‘Where the parties have lived together as husband and wife in the course of which they acquire a house, despite the rebuttal of the presumption of marriage as provided 8 for under S 160 (1) of the Law of Marriage Act 1971, the courts have the power under S 160 (2) of the Act to make consequential orders as in the dissolution of marriage or separation and division of matrimonial property acquired by the parties during their relationship is one such order.’ During the trial, the appellant testified that in the period he lived with the respondent, they got a house with three rooms, a sitting room and six rooms for renting located at Mantale valued at Tshs.45 million; and an unfinished house with three rooms, sitting and dining rooms and a toilet located at Kishiri valued at Tshs.14 million. He testified further that he contributed towards acquisition of the said properties. He prayed the Court to give him the unfinished house at Kishiri, a TV set and one computer. On her part, the respondent testified that after selling her house at Nyamikoma, she used the money to build the house located at Kishiri. Concerning the property at Mantale, it was her evidence that the property belonged to her brother who testified to that effect. The trial court found that the said property belonged to Jema Ephraim Methusela, the respondent’s brother. Concerning the computer, she stated that the same was taken by the appellant. Regarding a TV set and stationeries, she asserted that she purchased them herself using her money. 9 Having considered the evidence, the trial court was satisfied that the respondent contributed much in acquiring the said property located at Kishiri. It proceeded to give her sixty percent of the property and the remaining percentage to the appellant. She was aggrieved and appealed to the first appellate court. Thereat, the first appellate court ruled in her favour by ordering that the appellant contributed nothing and she was given all the properties. Hence, this appeal which is premised on the following grounds: 1. The first appellate court erred in law and fact by awarding the respondent with full shares of 100 percent without considering the said property being a matrimonial property, jointly acquired by the parties herein. 2. The first appellate court misdirected itself for failure to grant the appellant portion or part of the matrimonial property based on monetary contribution. 3. That the decision of the first appellate court is against the evidence on record and the law applicable. The appeal was ordered to be argued by way of written submissions. Only the appellant submitted his submission. Hence, the matter proceeded ex parte against the respondent. 10 Submitting in support of the first ground, the appellant contended that it was wrong for the first appellate court to conclude that he contributed nothing to the acquisition of the house located at Kishiri. He amplified that the said house was acquired during the subsistence of their marriage and he contributed towards his acquisition as he used to provide secretarial services to the government. The appellant went on to argue that since he was working and earned income for ten years he lived with the respondent, the appellate court needed to consider that he contributed towards the acquisition of the house at Kishiri. Strengthening his stance, the appellant cited the case of Sixbert Bayi Sanka v. Rose Nehemia Samzugi, Civil Appeal No. 68 of 2022-CAT (Unreported). On the second ground, the appellant contended that the first appellate court misdirected itself by concluding that the sum of Tshs.3,850,000/- that was withdrawn by the respondent from her account at NMB Bank was used by her to purchase a house located at Kishiri. He asserted that since he lived with the respondent for ten years, it is illogical to conclude that he did not contribute to the acquisition of such a house. He argued further that a party is entitled to the division of matrimonial property even though such a party did not directly contribute to its acquisition. In this, the appellant relied on the case of 11 Tumaini M. Simoga v. Leonia Tumaini Balenga, Civil Appeal No. 117 of 2022-CAT (Unreported). Concerning the third ground, the appellant assailed the first appellate court’s decision for not properly considering the evidence and the applicable law. He argued that it was wrong for the first appellate court to conclude that the withdrawn Tshs.3,840,000/- was used to purchase the house. Amplifying the argument, he contended that as per the sale agreement dated 19th December, 2019 which he signed too, the purchasing price was Tshs.3,650,000/-. He argued that the withdrawal of the said money was not necessarily for purchasing the house in the absence of evidence that the same money was used for that purpose. Substantiating his arguments, the appellant cited the case of Sixbert Bayi Sanka (Supra). I have given a thorough thought to the grounds of appeal and believe that they all intend to challenge the division of the so-called matrimonial property. In that case, I will jointly determine them. Further, I have considered the cited authorities and arguments advanced by the appellant. Principally, in dividing the matrimonial property, courts are led by, among others, the extent of the contribution of each party towards the acquisition of the same as per section 114(2) (b) of the Act. Further, it is 12 an established principle that when the property is in the name of the husband and wife, there is a rebuttable presumption that their beneficial interests are equal as per section 60(b) of the Act. In this matter, the property that is located at Kishiri is in the names of the appellant and the respondent. This is evidenced by the sale agreement which was admitted as Exh.SMB after being tendered by the appellant. The agreement was not disputed by the respondent. From this evidence, there is a rebuttable presumption that the appellant and the respondent had equal beneficial interest in the property. This brought me to the point of asking myself whether there was any evidence rebutting the presumption established under section 60(b) of the Act. In his evidence, the appellant testified that he used to provide secretarial services to the government. In this regard, he tendered letters written between 2010 and 2013 by government institutions introducing him to various authorities as a person who was appointed to take photographs of standard seven examinees in various districts in Mwanza. From that evidence, the appellant tried to convince the trial court that he had contributed to the acquisition of the property. On the other hand, the respondent testified that she was employed by the government as a teacher. She testified that she had loans taken from banks. In this, she tendered a salary slip for May, 13 2023. According to the salary slip, up to May, 2023, the respondent owed NMB Tshs.17,160,823.25/-; NBC Tshs.9,679.428.00/-; and CRDB Tshs.14,007,806.00/-. She testified that from such loans, she managed to develop the property at Kishiri. She added that she withdrew Tshs.Tshs.3,840,000/- from the NMB account to purchase the property at Kishiri and the appellant did not inject any cent in the said purchase. It is not in dispute that the appellant used to provide services to the government. However, it is very uncertain how the appellant contributed monetarily to the acquisition of the property to Kishiri. In his evidence, the appellant did not state the amount he contributed. According to the sale agreement, the property was purchased on 19th December, 2019. That was about six years since the appellant ceased to provide the services to the government. Weighing the evidence of the respondent and the appellant, I found that the respondent’s evidence is watertight. This is because the money that was used to purchase the said plot was withdrawn from her account on 19th December, 2019 when the purchase was done. On the balance of probability, I am satisfied that it was the said money that was used to purchase the property in question on the same date. I understand the appellant’s argument that it is not necessary that the withdrawn money was the one used to purchase the property. 14 However, I find the argument lame because the appellant did not testify as to the source of the money that was used to purchase the property. He further did not state how much he contributed to the sum that was used to purchase the property in question. Having taken that position, it is my finding that the presumption under section 60(b) of the Act was rebutted. In other words, there is unequal beneficial interest of the parties in the property. I now turn to determine the extent of the contribution of each party. According to the evidence adduced, the appellant’s contribution in terms of money is uncertain compared with the respondent’s evidence. However, it is an established principle that the contribution towards the acquisition of matrimonial property is not restricted to money or material contributions. Other factors such as love, affection and domestic chores are also considered as contributions towards the acquisition of matrimonial property. In the case of Tumaini M. Simoga (Supra), the Court of Appeal had this to state: ‘In essence, the extent of contribution made by each spouse is not restricted only to material or monetary contribution, that it can extend to either matrimonial obligation or work or intangible considerations such as love, comfort and consolation of wife to her husband, the 15 peace of mind and the food prepared by the wife for her husband as observed by the High Court. Therefore, the assertion by the appellant that the respondent was paid a salary and therefore ought to have contributed in monetary terms is farfetched, as there is no hard and fast rule that contribution towards acquisition of the matrimonial properties should be in monetary terms.’ Based on that authority, it is my view that the first appellate court misdirected itself by giving the respondent 100 percent of the acquired property on the pretext that the appellant contributed nothing. I take that position while mindful that in his evidence, the appellant testified that he lived with the respondent as husband and wife for ten years. That fact was not disputed by the respondent. In that case, it is obvious that during the said period, the respondent enjoyed various services from the appellant including advice, love, consolation and sexual intercourse. It is from those services, that the respondent managed to live with the appellant in peace before things turned sour in 2022 being twelve years since they started to live together. So far as the percentage that the parties deserve, I am of the opinion that 40 percent given to the appellant was on the high side. As I 16 have alluded to, the appellant contributed nothing other than the services I have stated. In that case, he deserves a token from the acquired property as the respondent was the one who injected her money into the acquired property. That being the case, the property located at Kishiri is divided whereby the appellant gets 20% and the respondent gets 80%. Any one of them, if so wishes and agreed by the other, may purchase the other’s share. Otherwise, the property be sold after the valuation agreed by the parties. In case of a disagreement, the government valuer be used and its report should be final. Appeal allowed to the extent stated herein. No order as to costs. Right To Appeal Explained. It is so ordered. DATED at MWANZA this 10th of October, 2024. KS KAMANA JUDGE 17