20181023 TZHC Mwanza

i ... VI: I', IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY) ATMWANZA PC: MATRIMONIAL APPEAL NO. 3 OF 2018 (Originating from the District Court of Nyamagana Matrimonial Cause No. 3of 2008) SOHA MARIUS .............................................................. ~....... APPELLANT VERSUS ~""' ~ ~~ /') 1. JUMAPILI MAKURU MAGIGE ................................., ... ' ) .. RESPONDENTS 2. GLADNESS JOHN RWABINENE \ V / ~ 'V Last Order: 15.10.2019 · Judgment: 23.10.2018 A.Z.MGEYEKWA, l This is ~1-orJginates from matrimonial Cause No. 3 of 2008 of Nyam,~i~ici:z~_u_rt.~e appellant being aggrieved by the Judgment ( ~ . ., ">--th and Deere~,- ~~':)e\ed'on the 10 day of July 2012, filed an appeal before this c'au\~.t day of August 2012. The appellant was dissatisfied by the dec~n-of--the District Court of Nyamagana hence this appeal to this. court. At the hearing, the appellant appeared in person unrepresented while Mr. Nkanda, the learned Counsel represented the respondents. 1 I have observed that the appeal through a matrimonial was submitted on a Memorandum of Appeal and not in a Petition of Appeal as required by section 81(a) of the Law •Of Marriage Act. However, taking into account that the appellant is a layperson with no legal representation, I hereby invoke the provision of Article 107A of the Constitution and proceed to consider the merit of the case. appeal as follows:- . ~ \ ~ . . "'~ L That the learned Resident Magistrate~s,,.e~~law and fact by holding ~~ ~ that there is no lawful marriag~et~(ln the appellant and the 1st Respondent capable o f ~dissJve~ihiJ:ourt 2. That from the ~ e n ~ ~ h e learned Resident Magistrate had made an}l'ltfri~?;v~d faet-by,p1acing the custody of the children of the st marriage~ands of~l Respondent 3. M u r f ' ~ made a fundamental error in law by holding that ~\ a~~t~~Tr no?entitled to share from the house at Bwiru on plot no. 86f!_,~'Jgard being had to the fact that the plot allocated to. her and situatedat-Kakola is not in existence. . In her submission, the appellant prays for this court to go through the evidence given in lower court and grant her right to marriage which was broken by the first respondent. 2 u' I reply thereto the counsel for the respondents submitted that the lower court decision was rightly decided because the marriage between the appellant and the first respondent never existed. The counsel for the appellant stated that the presumption of marriage was not proved since cohabitation cannot be converted to a marriage. In buttress of his argument, the counsel for the respondent cited the""'-case of Charles Luyembe Vs. Mwajuma Salehe 1982 TLR 104. It wa~~l·d that a life of girl and boyfriend could not be that of a husba~if~Aa is a misallocation of dignity and respect. In ~po~05~~ent, the counsel for the respondent cited the..case ii'-~ncis Leo Vs. Pascal Maganga 1988 TLR 22, it was held t)m~~csti~ 160 of LMA to be applied it must show that tbe ~~fia\~ ~ugh a ceremony of marriage. ~ The counsel ~ f~~-~,-esp~ submitted that there is no any . ~-/ evidence to prove~tnat a m·arriage ceremony took place. Therefore, the counsel for t~~~p~cideAt,_~)ed for this court to dismiss the appeal since it i s ~ { ' \ ~ concubine m~rriage. The counsel for the · respondent ~\d further that the appellant was supposed to call a witne~~~6,)flilure to that the court had to dismiss the case based on that grouncl,tt'le{ost of the suit to be determined by the court. In her brief rejoinder, the appellant rebutted the fact that she was a girlfriend as she lived with the respondent since 1994. 3 On the first ground of appeal, the appellant submitted that the learned Resident Magistrate has erred in law and fact by holding that there st is no lawful marriage between the appellant and the 1 Respondent capable of being dissolved by the court. I have gone through the evidence which was acl<Siuced in the trial court thoroughly. The evidence tendered by th~~~was that the respondent is her husband and they got married\~.g~ u~~mary law. \½ ~"' "'~ After perusal on the lower c o u r t ~ , there was no evidence ~'-../ on record to show that the ;,esnondent,and'tfle. deceased l_1. ~.. ~~ ~\) had a customary marriage. Under a custof ~arriage<:5here must be at least two witnesses, referring te~~io~ 2f@~7 the Law ·of Marriage Act, Cap. 29 [R.E. 2002] require ~a~r~~eonducted under the presence of at least two witr;i~ ~ ~ ~I.. {,i°s ret ~d 1g1ous~ cu stom marriages . . are con duct ed open Iy an d publiG:l~his i~)rplea with the requirement of section 28 of the Law of Marri~e Act~29 [R.E. 2002] which provides:- · r10ny member of the public may attend a marriage in civil form so· far as the accommodation in the office of the district registrar -may reasonably permit (2) · Any person who is a follower of the religion according to the rites of which marriage is contracted may attend that marriage. 4 \:._), (3) Any member of the community to which the parties or either of them belongs may attend a marriage contracted in Islamic form or according to the rites recognized by customary law. Although there was no any document tendered by the respondent in the lower courts to indicate that there was a marriage ceremony. However, in the record I have found that the appellant witne~e Afisa Simon testified to have known the appellant and resp6tld~ivi~etl)er as husband and wife they were staying under the Ji~i-of'Afi~i/on and they had a child together. Another wit~~n¥~amza also testified to know the couple as hus~---an~ sh~ knew them since 1994 and she confirmed that the~~~the~s wife and husband. That means the marriage f? bliclY~o~~ several witnesses testified marriage. +~fe, to know the two were livi\g togettler~~/~~and and wife and since none of them had an existed n)"\_~ ,;same confirms a presumption of The pres1:10n-ma~fits in the provision of Section 160 of the Law o ~ ~ c ~ s well as the case of John Kirikwe v Iddi Siko~11'989 ~"2150 In the cited case it was held that a presumed . '\ ·st ,h\ . . marna-~ere: i) Parties cohabit together for over two years ii) Parties have acquired the reputation of husband and wife iii) There was no formal marriage between the parties, s U, The records revealed that the three elements were proved in evidence and so if a customary marriage is disputed. The ground for a presumption of marriage between the 1st responded, and the appellant could not stand if one of them was married before. In the present case, the 1st respondent was not married at all. As per marriage certificate, the 1st respondent was married in 2006. Before 2006 the 1st respondent live<il~ the appellant for several years. Therefore, I have found that there w~~ p/)med marriage between the two parties. ~ , V ~ \\/ \\ . Regarding the second ground of apReal, t~e~eHant wants the court to place the custody of the childr.en ~(~~:m~~ the hands of the appellants. The children ar~er~~~ear~d. The law is clear that in deciding on custody of a ahilCth~rt•~~amount consideration is the welfare of the child more~~n 'aAyl:hITlg~se; see Celestine Kilala and Halima Yusuf v Re~~~e/Kilala (1980) TLR 76 and section 125 of the La~~~ rFla:Z ttiat there is a rebutl:able presumption that custody of a child~elow t~ge~'\even years is better placed with the mother. For those o~~\bars of age; custody is determined by the welfare of the child principle-arkl Section 125(3) of the Law of Marriage Act Cap. Provides that: ". The court shall have regard to the undesirc1bility of distributing the life ofan infant by changes of custody. '' 6 Also, Tanzania has ratified the UN Convention on the Welfare of the Child, (CRC), 1989 and domesticated the same by enacting the Law of the Child Act, No. 21 of 2009. The primary objective of this Act, among others, is to stipulate the rights of the child and promote, protect and maintain the welfare of a child intending to giving effect to international and regional conventions on the rights of the child. Section 4 (2) of the Law of the Child Act, (supra) provides that: . . ~ "The best interest of a child shall be~e p ~ © a t i o n in all actions concerning a child whether ul:ldertak~t>~y ~ " or private social .welfare institutions, court or adminis~a~- e-bo~-ies~s~\1so section 7(1), 26 and 41 of the same law. \_ ~ It is evident on thiL~~initially the children were in the ""'~ custody of the resp~enNhe~!espondent is now married thus the ~ children are livir-ig~with tneit\~tepmother. However, the appellant did not state if her c~i~r,~r,)~re----~a~~difficulties while under the custody of the 1st resFt'a~~~er. The trial court was in a better position to evalJate the ~~e oi>the child and decided to place the children in the respo~\~)tly. Being guided by the above principle and provisions of the la~ited"herein, and the fact that, since 2012 the said children were under .the custody and care of the respondent, I will not disturb the decision of the trial court. See the case of Celestine Kilala and Halima Yusufu v Restituta Celestine- Kilala (supra). The respondent is, however, required by the law to maintain the said children and pay for 7 i • I their school fees as per Section 129 of the Law of the Marriage Act, (supra) and also Section 26 of the law of the Chi'ld Act, (supra). Section 129 of the Law of Marriage Act, (supra) provides that: ,, ... it shall be the duty of a man to maintain his children whether they are in his custody or the custody of any other person either by providing them with such accommodation, clothing, food, and e~ation as may be reasonable having regard to his means and sti!tion in ti'leo~~ng the costs thereof" [Emphasis added] ~ ~ Ther~for~ and pursuant to ~e ~~~~~- the law, the trial court was Justified to place the u~~dy~~e...c;:lj~en into the hands of the respondent and ordered th~appel~~o,~vide for their maintenance and school fees. ~~ st Howeve~-ca~~a~~rcumstances which render the 1 respondent unfi~~ th~stody of the children, the appellant may move the_cou~~escind~or'der. Until such time the trial courts order on the /us€ody'a~\~enance of the children is upheld. Therefore the mainte~ance o?t:~ . I d~\,.,."d~ ) ) . children is upheld, and the second ground of appeal is . . aso r s m ~ Now, coming to· the issue ·at division of properties, the issue for determination is whether the appellant is entitled to any share from the house located at Bwiru Plot No. 86 Block A. In the record the appellant witness testifies that the house is a result of the appellant and 1st 8 respondent efforts. The respondent when he cross-examined he stated that he build the house by his efforts and he does not remember who sold st him the plot. However, I found nowhere in the record where the 1 respondent either the appellant tendered proof of ownership of the said house or plot. However, for the sake of children the house needs to be maintained. Therefore, the decision of the trial court in this aspect is uphold. In the circumstances and for th~e~reas~s I have endeavored to provide, the appeal is partly allewed. I!ereby partly uphold the decision of the District Court o ~ \ ~ n ~ g the first ground of the appeal and partly th:::::S~nf~third grounds of appeal are dismissed, and it is ordereci'tt{at: ~"'0 (a) The custody o~ ~e ~ ) will continue to be under the 1st r~spo~de~~~-s entitled and should be accorded w(~ to'see and v1s1t them unless such arrangements inte~c,e'Jth-s~)calendars. . ~ \t(~_; . tb~--i:~~1 .. sonaent is hereby ordered to continue to pay for scho0I fee~f his children as per section 129 of the Law of . ) . . Marriage Act Cap. 29 [R.E 2002]. · / 'fne--House situated at Bwiru is placed under the supervision of the. 1st respondent. The respondent to use· the house for maintenance of the two children. ( d) The plot situated at Kaka lo in Kahama will remain to be a 1 property of the appellant. 9 v, (e) I make no order to costs each party to shoulder his/her own costs. Order accordi_ngly. DATED at Mwanza this 23 rd October 2018. 10