Shija Athumani

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA PC MATRIMONIAL APPEAL NO. 13 OF 2023 (Arising from the decision of the District Court of Tabora in Matrimonial Appeal No. 11 of2022 originating from Matrimonial Cause No. 23 of2022 in Tabora Urban Primary Court) SHIJA MATHIAS ATHUMANI...................................................APPELLANT VERSUS ASHURA HAMISI HAMADI...................................................... RESPONDENT JUDGMENT Date of Last Order 22/05/2024 Date of Delivery: 09/07/2024 KADILU, J. The respondent herein filed a case before Tabora Urban Primary Court claiming for the division of the purported matrimonial property namely, a house, 200 herds of cattle, and 20 hectares of land. She informed the trial court that she lived with the appellant from 2011 to 2021 when their relationship turned sour. The two were blessed with four issues during their cohabitation. The appellant testified that he lived with the respondent for about four years and they were blessed with three children. He explained that the respondent left home when the appellant was absent, taking six bags of rice, four sacks of maize, and the children. When the appellant came back, he followed her wishing to take the children with him. The respondent demanded payment of TZS. 500,000/= from the appellant to give him the children. The appellant paid her TZS. 500,000/= and left with children. The appellant argued that he was not married to the respondent as he was married to someone else with whom they acquired the alleged properties. After hearing both parties, the trial i court held that the respondent did not deserve a share in the property she was claiming. Aggrieved, she successfully appealed to the District Court of Tabora. The appellate court ordered all matrimonial properties to be sold and the proceeds to be shared by the parties at the rate of 40% by 60%. Aggrieved, the appellant filed the instant appeal in this court armed with the following grounds: 1. That, the trial court erred in law to entertain and adjudicate the suit while it had no requisite jurisdiction. 2. That, the District Court Magistrate erred in law and fact by failing to hold that it was improper for the trial court to resort to granting the reliefs prayed before satisfying itself on the existence of the presumed marriage. 3. That, the District Court Magistrate misdirected herself in interpreting Section 160 (2) of the Law of Marriage Act and departing from the interpretation of the Court ofAppeal of Tanzania. 4. That, the District Court Magistrate erred in law and fact for ordering the division ofjointly acquired properties to the extent of 40% to each party without proof of efforts towards acquisition or existence of the said properties, and inattentive of an agreement entered in terms of Section 67 of the Law of Marriage Act. The respondent filed a reply to the petition of appeal in which she discredited all the grounds of appeal. During the hearing of the appeal the appellant was represented by the learned Counsel, Mr. Kashindye Lucas while the respondent enjoyed the legal service of Ms. Stella Nyakyi, also the learned Advocate. In agreement with the learned Counsel for the parties, the court ordered the appeal to be disposed of by way of written submissions. I am grateful to the Advocates for their adherence to the scheduling orders of the court. 2 Submitting in support of the first ground of appeal, Mr. Kashindye stated that the trial court was not supposed to grant consequential orders for the division of matrimonial property before determining the issue of presumption of marriage and dissolving it if at all it existed. He expounded that the primary court was duty-bound to receive evidence from both parties concerning the rebuttal of the presumption of marriage before deciding on the division of matrimonial property. He supported his stance by citing the case of France Miti v. Mary Mwingira, PC Matrimonial Appeal No. 03 of 2021, High Court of Tanzania at Songea. To him, the division of matrimonial property order was issued by the trial court prematurely. In the same vein, the learned Advocate submitted concerning the second and third grounds of appeal that although it was undisputed that the parties were in cohabitation, the court had to order the division of matrimonial assets after granting orders for divorce or separation. He concluded that it was improper for the trial court to resort to granting the subsequent reliefs sought before satisfying itself on the existence of the presumed marriage. Mr. Kashindye invited this court to nullify the proceedings of the trial court and to order a retrial for the trial court to resolve the question about the presumption of marriage before granting consequential orders. He referred to the case of Richard Majenga v. Specioza Sylvester, Civil Appeal No. 208 of 2018, Court of Appeal of Tanzania at Tabora. On the fourth ground of appeal, Mr. Kashindye submitted that the appellate court ordered the division of non-existing properties without proof of each party's contribution towards acquiring the alleged properties, 3 defeating the ends of justice. He elaborated that the appellate court's order offended Sections 114 (1) and 67 of the Law of Marriage Act because the appellant agreed to pay the respondent TZS. 500,000/= once for all. He supported his assertion with the case of Abualy AUbhai Azizi v. Bhatia Brothers Ltd, [2000] TLR 288. Ms. Stella responded that the trial court had the required jurisdiction to determine the case according to Section 3 (1) and (2), and Section 18 (1) (b) of the Magistrates' Courts Act [Cap. 11 R.E. 2019]. She explained that usually, the court has the power to grant only reliefs that have been prayed for. To support her argument, she cited the case of James Funke Gwagilo k. The Attorney General, [2004] TLR 161, and added that the respondent herein knocked on the doors of the trial court seeking orders for the distribution of jointly acquired properties. The learned Advocate contended that it was proper for the District Court to order the division of matrimonial property since the parties were presumed to be married. About the second and third grounds of appeal, Ms. Stella submitted that the appellate court analyzed the evidence properly and concluded that Section 160 (1) of the Law of Marriage Act [Cap. 29 R.E. 2019] was complied with. According to her, since the presumption of marriage was rebuttable, the appellate court needed to order the division of matrimonial assets. She stated in addition that the purported agreement to pay the respondent TZS. 500,000/= once for all was absurd, unjust, and only intended to dismantle her ten-years contribution towards the acquisition of the matrimonial property. 4 Regarding the last ground of appeal, Ms. Stella argued that the appellant admitted to the existence of the said matrimonial properties. The learned Counsel elaborated that the respondent was the one who was taking care of the properties so, her contribution needs not be in monetary form. She invited this court to read the case of Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of 2016, Court of Appeal of Tanzania at Mwanza. She then prayed for the appeal to be dismissed with costs. Having set out the facts of the case, and submissions by Counsel for the parties, now I have to determine whether the trial court needed to issue the order of separation before embarking on the division of the purported matrimonial properties between the parties, who lived under the presumption of marriage. Under Section 160 (1) and (2) of the Law of Marriage Act, the court has jurisdiction to order the division of matrimonial properties after making an order for dissolution of marriage or separation. Where the parties were living under the presumption of marriage, the court should determine if, in the circumstances of the case before it, the presumption is rebuttable or not. According to the Oxford Advanced Learner's Dictionary (2005), the word 'rebut' means to claim or prove that evidence or an accusation is false. In my view, the circumstances under which the presumption of marriage may be rebutted include where it is not proved that the parties lived together for two years or more, if they did not acquire the reputation of being husband and wife, or where one of them could not marry at the time of cohabitation for the reason that she/he had a subsisting valid marriage. In the instant case, the respondent alleged to have cohabited with the appellant for ten 5 (10) years, from 2011 to 2021, and that they lived under one roof as husband and wife. She alleged to have been chased out of the house in 2021 by the appellant. The appellant asserted that he lived with the respondent for four (4) years only and in the fifth year, the respondent disserted him. He contested being under the presumption of marriage with the respondent while he had a wife with whom they jointly acquired the disputed properties. I will not dwell much on the presumed marriage for the reasons which will become apparent later. In Gabriel John Musa r. Voster Kimathi, Civil Appeal No. 344 of 2019, the Court of Appeal held that before the Court orders the distribution of matrimonial property, there must be first a finding that there was a marriage between the parties. And, where the court is confronted with the presumption of marriage, it should go further to determine if it is rebuttable or not before issuing consequential orders. It is undisputed that the parties in this case were cohabiting before the dispute arose. It is also evident from the records that neither the trial court nor the first appellate court dealt with the rebuttal of the presumed marriage. Both courts below relied on the evidence presented and ruled that the parties were living under the presumed marriage. The appellate court went ahead to divide the properties allegedly acquired through joint efforts of the parties herein. There was no evidence led in the trial court to establish each party's share of contribution in the acquisition of the alleged property. In Richard Majenga v. Specioza Sylvester, (supra), it was held that: "... it was not correct for the trial court to proceed with the matter as a matrimonial dispute and divide the alleged matrimonial properties without 6 first considering the issue of presumption of marriage between the parties and whether the reliefs prayed by the respondent in the petition were legally maintainable." I, thus find the issue of marriage between the parties and the division of alleged matrimonial assets were not dealt with effectively by the two lower courts. Though it was not raised by the parties, I have also observed that the trial court did not consider the custody and maintenance of the issues of marriage. In the circumstances, it was improper and misdirection on the part of the trial court to proceed to consider and determine the reliefs sought before dissolving the marriage between the parties if at all it existed. As such, I find the first ground of appeal meritorious. Since the determination of this ground sufficiently disposes of the entire appeal, it is the finding of this court that the entire appeal has merit and it is hereby allowed. I nullify the proceedings of the Tabora Urban Primary Court in Matrimonial Cause No. 23 of 2022 for having been improperly instituted and conducted. I further nullify, quash, and set aside the proceedings, judgment, and orders of the District Court of Tabora in Civil Appeal No. 11 of 2022 for having been based on improper proceedings of the primary court. For the ends of justice, I remit the case file to Tabora Urban Primary Court for expeditious re-trial before a different trial Magistrate. No order as to the costs. Orderaccordingly. KADILU, MJ. JUDGE 09/07/2024 7 Court:- Judgment delivered in chamber on the 9th Day of July, 2024 in the presence of Ms. Stella Nyakyi, Advocate for the Respondent and absence of the appellant. 8