oc 17 tanzlii CECILIA MUGO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC. CIVIL APPEAL NO. 24853 OF 2024 (Arising from Matrimonial Appeal No. 6007 of 2023 District Court of Temeke and original Matrimonial Case No. 821 of 2022, Temeke Primary court (one Stop Centre Judicial centre) STEPHANO ZAKAYO KITULA......................................... APPELLANT VERSUS CECILIA LAURENT MUGO............................................................ RESPONDENT JUDGEMENT Date of last order: 16/01/2025 Date of Judgement: 27/01/2025 S.D. MWAIPOPO J, ' This is an appeal lodged by the Appellant STEPHANO ZAKAYO KITULA against the impugned judgment of Temeke District Court delivered by Hon: Mwakalinga PRM on 04/09/2024. Initially, the Respondent herein filed a matrimonial cause before the Primary court of Temeke at Temeke One Stop Judicial Centre, praying for the divorce and division of matrimonial assets. Upon determination of the matter, the primary court concluded that there was no presumption of marriage between the parties herein and, therefore, did not proceed to divide the properties acquired. Aggrieved by the decision, the Respondent appealed to the District Court of Temeke, presenting several grounds of appeal. The District Court, upon determination of the matter, concluded that there was a presumption of marriage between the parties. As a result, the court ordered for the equal distribution of the following assets: household items (utensils), the house at Kigamboni, the plot ocated at Mwera, and all the properties related to the grocery/bar business owned by the parties. The Appellant being dissatisfied with the decision of the District Court lodged an appeal before this court. The grounds giving rise to this appeal are that: - 1. The District Temeke (One Stop Judicial Centre), as the first Appellate Courts erred in law and in fact by its failure to analyze evidence adduced before the trial Court, and thereby came up with a wrong conclusion that there was presumption ofmarriage between the parties. 2. The District Court of Temeke (One Stop Judicial Centre), as the first Appellate Court, erred in law in totally disregarding the evidence of the Appellant. 3. The District Court of Temeke (One Stop Judicial Centre), as the first Appellate Court, erred in law in quashing the trial Court's decision and thereby proceeded to divide properties basing on the presumption ofmarriage. 4. The District Court of Temeke (One Stop Judicial Centre), as tire first Appellate Court, erred in law in quashing the trial Court's decision and thereby proceeded to divide properties, which were neither not mentioned, pleaded nor owned by any of the party herein. 5. The District Court of Temeke (One Stop Judicial Centre), as the first Appellate Court, erred in law and in facts by assuming that, there are matrimonial properties owned by the parties herein'. At the commencement oflhearing, Ms. Magreth Melkiory Kissoka, learned counsel appeared for the- Appellant while the Respondent enjoyed the services of Mr. Joseph Kiyumbi Sungwa, the learned counsel. Parties agreed to argue this appeal by way of written submissions. Submitting on the 1st and 2nd ground of appeal, the Appellant's counsel argued that the District' Court of Temeke made errors in both law and fact by wrongly concluding fiat there was a presumption of marriage between the parties. He stated that the District Court failed to properly analyze the evidence and disregarded their own evidence. According to the Appellant, there was no reliable proof of cohabitation from 2009 to 2019, and the Respondent's witnesses provided inconsistent testimonies. The Appellant emphasized that the burden of proof lies with the party making a claim and that' the Respondent failed to meet the requirements for presumption of marriage under Section 160 of the Law of Marriage Act. The Appellant cited the principle that "he who alleges must prove" and pointed out that the Respondent did not provide sufficient evidence, such I as family or neighbor testimonies, to prove that they had lived together as husband and wife. i The Appellant also highlighted his marriage to Beatrice Juma Mabrouk in 2020 and noted that since 2013, they had been living together as husband and wife. He argued that the Respondent's witnesses provided hearsay evidence and did not prove that the relationship was a presumed marriage. Submitting on the 3rd, 4th and 5th grounds of appeal; the learned counsel contended that in terms of the property division, the Appellant argued that the District Court erred by dividing properties based on; a presumed marriage when there was no such presumption. The trial court had dismissed the case, and no matrimonial properties were proven to exist. The Appellant contended that the appellate court wrongly assumed that there was property ownership and divided assets that had already been dealt with during the dissolution of a business partnership. In conclusion, the Appellant requested that the District Court's decision be overturned, arguing that there was no presumption of marriage and no basis for dividing properties. Submitting in rebuttal, tne learned counsel for the Respondent began by II combining the 1st and 2nd, grounds of appeal together. He stated that; the case of John Kirakwe vs Iddi Siko (1989) clearly outlines the three key requirements for presumption of marriage as follows: cohabitation for over two years, acquiring a reputation as husband and wife, and no formal marriage ceremony. He disagreed with the Appellant's claim that the Respondent failed to prove a presumed marriage, pointing out that the first appellate court properly analyzed the evidence, including testimonies from several witnesses, and concluded that the relationship between the parties met the requirements for the presumption of marriage. The learned counsel also disagreed with the Appellant's argument that only family members can testify on cohabitation. He emphasized that any reliable witness, including neighbors or landlords, can provide evidence, which was done in this case. The Respondent's evidence, supported by multiple witnesses, showed they lived together as husband and wife from 2010 to 2019. Regarding the Appellant's marriage to Beatrice Juma Mbarouk, the Respondent's counsel argued that the Appellant failed to provide sufficient evidence of a traditional ceremony and that the same did not meet the legal requirements for a valid customary marriage. Even if the Appellant married Beatrice, the Law of Marriage Act allows polygamy, and this would not have invalidated the Respondent's relationship with the Appellant. The learned counsel also rejected the relevance of Fatuma Issa case cited by the Appellant in his submissions, stating that in this case, the Respondent proved that they lived together as a couple for an extended period, a fact which was supported by witness testimonies and evidence. Lastly, the learned counsel refuted the Appellant's claim that the Respondent's witness testimonies were hearsay, as they were based on personal knowledge. He contended that the Appellant's appeal is unjust because the first appellate court correct y departed from the trial court's finding that no presumption of marriage existed. The Respondent was aggrieved by the trial court's dismissal, just as the Appellant is now. He emphasized that the first appellate court properly concluded the case, based on witness testimonies and evidence, that a presumption of marriage did exist between the Appellant and Respondent from 2009 to 2019. That the Loan agreements (Exhibit P14), where the Appellant referred to the Respondent as his wife, provide further proof of the marriage. Hence the Respondent is ■ iI entitled to her share of the assets acquired during this period, as supported by the case of Hemed S. Tamim vs Renata Mashayo (1994). Submitting on the 3rd, 4th and 5th grounds of appeal; the learned counsel stated that; the Respondent testified about joint assets, including household items still in the Appellant's home. The trial court's statement about business partnership dissolution was not backed by evidence and was rightly nullified by the appellate court. The Appellant's claim that they were just business partners and not married partners is contradicted by the evidence available such as the Appellant's reference to the Respondent as his wife when applying for loans. The Respondent's right to a share of the business is also valid, as there's no proof of the business dissolution. In conclusion, he submitted that the appellate court was correct in finding that there was the presumption of marriage and thus ordering the division of assets. The Respondent finally prayed for the appeal to be dismissed and the appellate court's judgment be upheld. In rejoinder, the Appellant submitted that, the testimonies and evidence presented by the Respondent's witnesses do not support the claim of a presumption of marriage. Specifically, the Appellant and Respondent were I I business partners, not a1 married couple, and the evidence presented, including Exhibit P14 and witness testimonies, do not prove that they lived as husband and wife. The Appellant submitted that the Respondent's witnesses provided hearsay evidence, and no concrete proof was offered to establish a reputation of marriage between the parties. He referred the court to SM2's testimony about renting a house was incorrect, and SM5's police testimony lacked necessary details and documentation. He argued that; the trial court dismissed the case because the Respondent failed to prove the existence of a presumption of marriage. The Appellant argued that since the presumption was not established, the Respondent cannot claim benefits under Section 160(2) of the Law of Marriage Act. Additionally, the Appellant stated that the issue of polygamy is irrelevant to the case, as the Respondent did not claim to be a co-wife, and the Appellant's marriage to Beatrice Juma Mabrouk is unrelated to the Respondent's claims. Finally, he contended that, the appellate court's order to divide the properties was incorrect, as there was no evidence of matrimonial properties since the parties, as business partners, had already divided their shared assets when they ended their partnership. In conclusion, the Appellant prayed for the appeal be to be allowed and the District Court's decision be quashed. Having gone through the rival submissions of the parties, the broad question to be resolved is whether this appeal has merit. In determining this appeal, I am guided by the following principles; One, he who asserts must prove. See section 110 of the Evidence Act. Two, the appellate court can re evaluate evidence of the trial court and records in order to reach a just decision and three the appellate court can combine grounds of appeal or deal with them in seriatim as long as issues are clearly addressed. In dealing with this appeal, i have carefully reviewed the submissions made by the learned counsel for both parties, as well as the evidence on record. In determining this appeal i will address the first and second grounds of appeal together. With regard to the first and second grounds of appeal, I find it pertinent for this court to determine whether a presumption of marriage exists between the Appellant and the Respondent, as this issue is contested by the parties. I will begin by examining the relevant provisions of the Marriage Act, specifically Section 160(1), which states that: - 1) Where it is proved that a man and a 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. It is undisputed that the Appellant married Beatrice Juma Mabruki (SU4) in 2020. The Appellant's primary ground of appeal is that the Respondent was only his business partner and that they never cohabited, as claimed by the Respondent. The Appellant asserts that they did not live together between 2009 and 2019 and that he only began cohabiting with Beatrice Juma Mabruki in 2013. In 2016, they entered into a customary marriage. The Appellant further states that they have two children, born in 2014 and 2017, with Beatrice Juma Mabruki. Conversely, the Respondent maintains i that they cohabited with the Appellant from 2009 to 2019. After reviewing all the submissions, the trial court proceedings, evidence, and exhibits, this court has observed that there are loan agreements (Exhibit P14) for 2012 arid 2017 which refer to the Respondent as the Appellant's wife, even though the Appellant claims hot to have lived with the Respondent as his wife. This begs the question as to why such loan documents would refer to the Respondent as the Appellant's wife. The Appellant also states that he began living with his wife Beatrice Mabrouk in 2013 and entered into a customary marriage with her in 2016. However, the loan agreements from 2017 still refer to the Respondent as the Appellant's wife, despite these agreements being made a year after the Appellant claims to have contracted a customary marriage with Beatrice. This exhibit was submitted by the Respondent in the trial court, received, and marked without objection, as shown on page 20 of the trial proceedings as follows:. - "... hapa nina m kata ba wa mkopo wa 2014 na mkataba wa mkopo wa 2017. Hati nyingine ni hati ya mkopo ya mdaiwa alikopa mimi nikiwa kama mke wake. Naomba mahakama ipokee kama kielelezo." IKS E.D Migella-Hakimu Mkazi 21.11.2022 Wakili wa mdaiwa Sina pingamizi IKS E.D Migella-Hakimu Mkazi 21.11.2022 Mahakama; Nyaraka za mkopo alizotoa mdai zimepokelewa pamoja kama kielelezo Pl’j4 Furthermore, I refer to page 56 of the trial proceedings, where the Appellant, in response to the Respondent's questions about the loan agreements referring to her as his wife, provided the following response: - "kwenye huo mkataba mdai aiisaini kama mbia. Kwenye mkataba ameandika ni mke wangu. .Kwenye mkataba mwingine imeandikwa kama mke. Mkopo wa Access bank, mdai aiionekana kama mke wangu."... From the above, the Appellant admitted that he took the loan together with the Respondent as part of their business partnership. The loan agreement referred to the Respondent as his wife. The fact that the loan agreement was tendered and the Appellant did not object to it leads me to conclude that the Appellant effect vely acknowledged the Respondent as his wife under the presumption of marriage. The Appellant argues ulo<. die Respondent failed to prove that they lived together in the same buiding for over two years as husband and wife. However, after reviewing the trial court proceedings, the Respondent's evidence, supported by multiple witnesses, established that they lived together as husband and wife for more than two years. ■ Pg 19 of the proceedings the Respondent is quoted to have testified as follows: Tulianza mahusiano mwisho wa mwaka 2009 na 2010 tuliendelea. Tulianza kuishi wote hadi 2013 tangu 2010 tukiwa kwa mama kipenge e.baadaye tulihamia Buza, temeke tuliishi kuanzia 2013 hadi 2015 rasmi tulianza kuishi pamoja tangu 2010 hadi 2019 tukiwa ndani pamoja. Nina uthibitisho kwamba tulichukua mkopo kama mume na mke..... The the testimony of SM2, Judith Leonard Kipengele, who was the Respondent's landlord from 2009 to 2013, confirmed that the Appellant and Respondent lived together as husband and wife for approximately three years before eventually moving out of her house. SM who witnessed the sa e of their landed properties stated to have known the parties as husband and wife. See page 29 of the Proceedings: Wadaawa nawafahamu kama mke na mume...tulianza kuwa marafiki kabisa mimi na mdaiwa. Alimleta mdai nakumtambulisha kama mke wake .... Pg 30 SM3 continued to testify as follows: Mdaiwa aliniambia ana mke anaitwa sess ni huyu hapa SM5, a police officer testified to have known the parties as husband and wife. He registered the Respondent's complaint of being assaulted by the Appellant as her husband. See page 40, 41 and 43 of the proceedings. These testimonies were also affirmed by the first appellate court in its Judgement on page 11. Regarding the issue of customary marriage, the Appellant argued that he entered into a customary marriage with one Beatrice Mabruki in 2016 and presented Exhibit D8, a letter of dowry payment, as evidence of the marriage. This was further supported by SU4, Beatrice Juma Mabruki, and a letter confirming their Christian marriage in 2020. The evidence shows that the dowry was paid in 2016, while the Respondent claimed to have lived with the Appellant from 2009 to 2019. It was also noted earlier that the loan agreement, Exhibit P14, dated 2017, which came after the Appellant's alleged customary marriage, recognizes the Respondent as the Appellant's wife. Thus, even if it were true that the Appellant was in a customary marriage with another woman then it could still be said that he 15 was in a polygamous relationship with both the Respondent and SU4 from 2016 to 2019, after which he chose to enter into a monogamous marriage with Beatrice Mabrouk. In this regard I also agree with the submissions of the Respondent which supports this position as far as the issue of customary marriage is concerned. Further, since the Appellant's attempt to enter into a customary marriage with Beatrice could not take effect until he contracted a Christian marriage in 2020 I am fully convinced to take the position that the attempted customary marriage and the 2020 contracted Christian marriage cannot be used to nullify the presumption of marriage that existed between the parties prior to the contraction of the Christian marriage. This will be doing injustice to women who wholeheartedly decide to enter or find themselves into this kind of a relationship with a man to the point of acquiring a status of husband and wife as proved in this case. Further, that the subsequent marriage by the Appellant should not be used as a weapon to deny the Respondent her well-deserved rights which were earned or accrued prior to that subsequent Christian marriage. The Appellant cannot be allowed to use the Respondent to obtain money form the banks, doing business with her and living together under one roof as husband and wife and then come to deny the truth afterwards. Equity demands one to come to court with clean hands. The Appellant ought to have approached this court with clean hands. That is what the provisions of section 160 (2) of the Law of Marriage Act demands. Therefore, I agree with the Respondent that the period from 2010 to 2019, during which there is evidence that the Appellant and the Respondent lived together as husband and wife, is sufficient to establish a presumption of marriage between the parties herein. The Respondent managed to prove her case in line with the provisions of section 110 of the Evidence Act and ingredients for presumption of marriage stated in the case of John Kirakwe versus Idd siko 1989 TLR 215. The Appellant has fallen short of the standards. As a result, the first and second grounds of appeal lack merit and are hereby dismissed. I now move to the 3rd, 4th, and 5th grounds of appeal, which relate to the division of properties which were acquired during the subsistence of presumption of marriage. I will address them as follows; I Having found that there is the presumption of marriage under Section 160(2) of the LMA, the court will proceed with the issues related to the division of properties a's required by the law. The properties in question are l as follows: Two houses located at Kigamboni, a plot located at Mwela- Kigamboni, a bar located at Kigamboni, household items/utehsils alleged to be in the Appellant's house and bar utensils. Having established the facts and evidence above related to the presumption of marriage, it is the court's responsibility to determine each party's contributions toward acquisition of the properties in question, in accordance with the law. This court is guided by the fact that there is presumption that the properties acquired during this period are considered jointly owned unless otherwise stated. In order to address these grounds of appeal, I have carefully gone through the records in order to satisfy myself with the properties mentioned for the division by the court. After reviewing the trial court proceedings regarding the two plots located at Kigamboni, which each has a house, the evidence I shows that there are two agreements: one tendered by the Appellant and the other one by the Respondent. Both Sale Agreements list SM3 as a witness. The Appellant claims that the area belongs to him and that he divided it into two parts for recognition by the local government, with the plot ultimately remaining his. In contrast, the Respondent argues that they purchased two plots, one in the Respondent's name, in 2012, and both plots were bought by them together. This evidence is supported by SM3 1 Samson Simon Makabi, who appears in both Sale Agreements signed by 1 the Appellant and the Respondent on 15th February 2012, as shown in Exhibit P15. Additionally, there is another Sale Agreement in respect of the same properties dated 08/02/2012, marked D8, which was tendered by the Appellant and indicates that SM3 was one of the witnesses. However, in response to the trial court's question, SM3 denied signing that contract. t This can be seen from page 65 as quoted herein below; - Hoja za mahakama. SM3: Sikusaini Mkaaba wa terehe 08/02/2012. However, be it as it may, the Respondent established in the trial court that the property was acquired in 2012 by the parties at the time when parties were cohabiting together jas husband and wife hence it is in the first place assumed to be acquired! during the subsistence of the presumption of marriage hence subject to division for each party by the court, based on the evidence of contribution. Further, the Respondent in her testimony in the trial court stated that she had also developed the landed properties during the existence of their presumption of marriage. Therefore, I find no reason to disturb the first appellate court's finding that the two houses located at Kigamboni should be shared equally. Similarly, the Respondents testified before the trial court about various homeware, utensils and business items. The Appellant submitted that those utensils were divided among the parties by the Serikali ya Mtaa, however the Respondent has denied that assertion in her submissions. My perusal of the record of proceedings indicates that at ''Serikali ya Mtaa" the parties only dealt with the issue of division of sales income and the Appellant was ordered to pay the Respondent her share of income but he did not pay her and the Respondent was ordered to go to the Ward Tribunal C'Baraza la Kata") to enforce her rights. Furthermore, on page 20-21 of the trial court proceedings the Respondent gave testimony in relation to the properties they jointly acquired with the Appellant. Among the listed properties are household materials, cooking utensils and other materials which are still kept in the Appellant's house including the landed properties. These are among the properties the 20 Respondent pleaded to the court for equal distribution. I agree with the submissions by counsel for the Respondent that the issue that the grocery is not subject to division is but a misleading, misconceived and misplaced argument. The record is clear that parties are yet to divide any property and have never done so at any point in time that is why the Respondent brought this matter before the court of law for a legal redress after the Appellant refused to give her, her entitled share to the properties they jointly acquired. Further, from the proceedings, there is ample evidence that the Appellant chased away the Respondent and then he remained with the properties which were acquired together and had to be divided. The record of the trial court clearly shows that the Respondent mentioned before the trial court the properties for division. Therefore, the Respondent is fully entitled to the share of the assets they jointly acquired with the Appellant from 2009- 2019. For that purpose, I agree that the case of HEMED S. TAMIM VS RENATA MASHAYO [TERI 1994 is in favour of the Respondent rather than the Appellant. With regard to the partnership business, the Respondent has argued that the argument that the parties' partnership business was dissolved is a mere statement from the oar without proof since neither party tendered any proof of dissolution of the partnership business before the court. This is the ! reason why the Respondent has sought legal redress so. that she can i 1 secure her entitled share to the business which is still existing and the Appellant continues to benefit alone. With regard to the partnership business, I agree with the submissions of the Respondent that the same has to be divided among the; parties since there is also no evidence of its dissolution. I thus agree with the decision of the trial court that the grocery/bar business and all the items related to the business be divided among the parties. In this regard I also agree with the Respondent that the assertions concerning page 71 of the trial Court i proceedings, have been quashed following the decision pf the first appellate court. With regard to the percentage of division, there is no dispute that the Appellant and the Respondent have testified to have been business । । partners, working together in the same business. The evidence tendered by the Respondent is very clear on the contribution of each party in the grocery/bar business. Hence, I can confidently state that they were both I earning income and as such their contributions are regarded as equal I towards the acquisition of properties during the subsistence of their presumption of marriage. I In this regard, I uphold the first appellate court's decision' on the 50% division of all the properties acquired by the parties during their cohabitation as husband and wife. I further order that household properties and items, Houses located at Kigamboni, a plot at Mwera, grocery/bar and all related items and equipment be divided equally or at the .rate of 50% ’ I each. I In the final analysis, all trie grounds of appeal raised have no merit and are I bound to fail. In the upshot the appeal is dismissed and the decision of the first appellate court is hereby upheld. I I grant no order for costs, considering the nature of the case and the past relationship of the parties herein. I It is so ordered. The right of appeal is fully explained. Dated and delivered at Temeke, this 27th day of January, 2025. S. MWAIPOPO JUDGE 27/01/2025