watson solo vs taines mbwiga 2020 tzhc 2381 17 august 2020

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA

MBEYA DISTRICT REGISTRY

AT MBEYA PC. MATRIMONIAL APPEAL NO. 15 OF 2018 (Arising from the Judgment and decision of Kiwira Primary Court dated 2f?h day of May, 2018 in Matrimonial Cause No. 14 of 2018 before Ho. E. Komba and Judgment and decision of Rungwe District Court in Matrimonial Case No. 06 of 2018 dated l!?h November, 2018 before Hon. A.O. Nzowa, SRM) WATSON SOLO.............................................................. APPELLANT

VERSUS TAINES MBWIGA..................................................... RESPONDENT

JUDGMENT Date of last order: 07/08/2020 Date ofJudgment: 17/08/2020 NDUNGURUrJ. This is a second appeal. Before this Court, the appellant WATSON SOLO is contesting the orders of the first appellate Court, an order for separation for twelve months, the award of Tshs. 40,000/= as maintenance fee in the absence of any child who is below 18 years of age, the first appellate declaration that there was no any marriage between the parties, and that the matter was determined in the absence of certificate from the marriage reconciliatory Board. In the decision of the first appellate court, it was ordered that the reasons advanced by the Respondent were not sufficient to warrant the grant of divorce. The first appellate court went on further to order separation between the parties for twelve months, and the maintenance fees at the tune of Tshs. 40,000/= to be paid by the appellant to the respondent for the period of twelve months. The appeal before the first appellate Court had originated from the Judgment and decision of the Kiwira Urban Primary Court in Matrimonial Cause No. 14 of 2018, in which the court decided that there was no marriage between the parties citing Section 55 of the Law of Marriage Act, 1971 (Cap 29 Revised Edition 2002). The Appellant in this appeal has lodged four grounds of appeal. By the consent of the parties, this appeal was disposed of by way of

written submissions. In the course of his submissions in chief, the Appellant through the reign of Mr. Adriano Mtafya, the learned counsel convincingly summitted that, separation of couples is governed by Section 109 of the Law of Marriage Act (supra). It was his contention that the Respondent has not proved any ground as provided under Section 107 (2) of the Law of Marriage Act (supra). The learned counsel went on to state that the first appellate court magistrate wrongly ordered separation in the absence of proof of cruelty. He added that the issue of separation was never dealt with at the trial court hence it was improper to be granted by the first appellate court. He referred to this court the case of R vs. R [2004] T.L.R 121. Submitting on the 2nd ground of appeal, Mr. Adriano stated that, there was no evidence regarding the age of the child, and there was no investigation as to the means of the appellant before the order was made. He referred to this court Section 130(1) of the Law of Marriage Act. In submitting to the third ground of appeal, the learned counsel forceful stated that the trial court and the first appellate court have misdirected themselves when they declared that there was no marriage between the parties. It was his contention that the parties have contracted a customary marriage which is recognized under Section 25 (1) (d) of the Law of Marriage Act. To

conclude, Mr. Mtafya submitted that there was no certificate from the conciliatory board which is a mandatory requirement in petition for divorce, citing Section 101 of the Law of Marriage Act (supra). For him, in the absence of such certificate, the petition before the primary court was pre mature. He invited the court to be persuaded in a decision of the Court of Appeal in Hassan Ally San Dali vs. Asha Ally, Civil Appeal No. 246 of 2019 Court of Appeal of Tanzania at Mtwara (unreported). The thrust of the respondents written submission was to support the decision of the first appellate court. The Respondent who appeared for herself, unrepresented but with the aid of Ms Jenifa Silomba, the learned counsel who prepared her submissions, forcefully submitted that Section 109 of the LMA cited by the appellant is irrelevant as it concerns with claim for damages on adultery. It is her further submission that the parties have separated twelve months before initiating their disputes in court hence the first appellate court was just to consider the circumstances in granting separation. It was her further view that the trial magistrate was right to hold that there was no marriage between the parties because there was no certificate of marriage produced. She referred to me Section 45 of the Law of Marriage Act, Cap 39 (Revised Edition 2019) which mandatory requires customary marriage to

be registered. She ended up her submission by contending that marriage is intended to be freely contacted and the court cannot force parties to live together. I have examined the submissions of the parties in the light of the petition of appeal filed. I am called upon to determine two important issues, whether the first appellate court was right in granting decree for separation and on whether the parties have celebrated any recognized marriage. In determining those two grounds raised, I find it pertinent to consolidate grounds No 1, 3 and 4 of the appellant memorandum of appeal. This is because they go together and are interrelated. This appeal has brought to the fore for yet another time, a consideration of Section 43(5) of the Law of Marriage Act. In terms of the afforestated Section, two things must first be established before seeking for divorce. One, whether the parties have contracted marriage according to a customary rite; two, parties have applied for registration within 30 days after their marriage to the registration officer whom they have given their intention to marry. The fact of the parties living as husband and wife under the same roof for more than two years is without any dispute. This comes out very clearly from the testimony of the parties at the trial court. The Appellant/Respondent and the Respondent/Petitioner were living together and in the subsistence

of their marriage life they were able to acquire a cow, a house and domestic item. It is clear from the lower court records that parties have no any legally recognized marriage as per the laws. They were living under customary rites, unfortunately, they did not register their marriage as required under Section 43(5) of the Law of Marriage Act (supra). It is my considered opinion and it is the law that the court cannot order divorce or issue separation in the absence of any recognized valid marriage. Both lower courts were right to hold that the parties have not contracted a valid marriage recognized by the law since the parties have failed to comply with Section 43(5) of the Law of Marriage Act (supra). I will therefor not disturb this concurrent finding of the two lower courts. The appellant blamed the lower courts that the respondent has failed to prove the existence of matrimonial offence. For me, even if there could be proof of the existence of such offences, yet the court could not be in a position to dissolve non existing marriage but rather, the court could only presume them as husband and a wife in compliance with Section 161 of the Law of Marriage Act. In view of such facts, Phold that the trial magistrate was right to declare that there was no marriage between the parties. The nagging issue is whether the learned first trial appellate court magistrate was correct in

granting the decree for separation? It appears that as per the first appellate court records, the fist appellate court magistrate on his own suo motto issued separation to the parties with the reason as stipulated under page 6 of his typed judgment where he was of the view that, to initiate new relationship or lost of love between spouses cannot warrant dissolution of marriage rather than separation. The first appellate court magistrate went on to issue separation between the parties for 12 months. It seems to me that the first appellate trial magistrate failed to interpret the law of the land to ensuring proper application of the laws by the court. This glance was taken in the case of Marwa Mahende VS. Republic [1998] T.L.R 249. It should be noted that a decree for separation cannot be granted by the court unless the parties have applied or petitioned for. The decree for separation cannot be granted suo motto. It must be applied for by parties so that the court can be in a position on whether to grant the same or not. For more emphasis I would to replicate Section 99 of the Law of Marriage Act (supra). "Subject to the provisions of sections 77, 100 and 101, any married person may petition the court for a decree of separation or divorce on the ground that his or her marriage has broken down but no decree of divorce shall be granted unless the court is satisfied that the

breakdown is irreparable." The conditional precedent for this Section is that there must a duly recognized marriage before one can apply for divorce or decree for separation. The appellant has criticized the two courts below for arriving at a conclusion that there was no marriage. The appellant further added that the appellate magistrate after being satisfied that the respondent had not proved cruelty, proceed to grant separation. I will partly concede with the learned counsel for the appellant that the issue of separation was never dealt with at the first trial court. It is therefore without objection that there is no valid marriage between the rival parties. There is no gainsaying that it was improper for the first appellate court magistrate to grant separation. It could sound logical if the parties had not been claimed at the trial court and at the appellate stage. Having scrutinized the first appellate records, I have noted that there was no claim of maintenance raised at the appellate stage. It is not clear on how the order issued by the first appellate court found its way in the court's decision. What the first appellate court was supposed to do is to order the respondent to file maintenance claim at the Juvenile Court if at all there is any child who is below 18 years. The Juvenile Court Magistrate will be in a position to ascertain the income of the respondent and issue

an appropriate order. That would be in line with the Law of the Child Act and the Law of Marriage Act which confers power to the court to order maintenance of a child if the parents are in matrimonial strife. Since this issue was not canvased at the first appellate court, I find that, the first appellate court magistrate has erred in law in ordering the appellant to pay Tshs. 40,000/= as maintenance fee. In the whole and for the above reasons, the appeal succeeds to the extent as shown herein above. The Judgment and decision of the Rungwe District Court in Matrimonial Appeal No. 06 of 2018 dated 15/11/2018 is hereby avoided to the extent as shown hereunder. The Judgment and decision of the Kiwira Primary Court in Matrimonial Cause No. 14 of 2016 dated 25/05/2018 is hereby upheld to the extent as shown herein under. The following are the orders of this Court on appeal: a) The order by the Rung we District Court in Matrimonial Appeal No. 06 of 2018 dated 15/11/2018 that, the parties are separated for 12 months and that the appellant to pay Tshs. 40,000/= as maintenance fees are hereby quashed and set aside. b) Any party may apply to the trial court for the division of matrimonial assets if any and with sufficient evidence of their joint contribution. c) Any party may apply at the Juvenile Court for the custody and maintenance of their children who are under the age of 18 years d) The other orders by the Kiwira Primary Court in Matrimonial Cause No. 14 of 2018 dated 25/05/2018 shall remain undisturbed, namely; The nature of this appeal and the situation of the parties are such that I shall not award any costs. Each party shall therefore bear its own costs for this appeal. It is so ordered. D. B. NDUNGURU

JUDGE 17/08/2020 Date: 17/08/2020 Coram: D. B. Ndunguru, J Appellant: Present For the Appellant: Respondent: Present For the Respondent: B/C: M. Mihayo Court: The matter is for judgment, the same is delivered today this 17th day of August, 2020 in the presence of parties (Appellant and Respondent). D. B. NDUNGURU 1

JUDGE 17/08/2020 Right of Appeal explained.