ZAKARIA RAFIKI NAWADu civil appeal no

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 19416 OF 2024 (Arising from the decision of the District Court of Temeke, One Stop Judicial Centre at Temeke in Misc. Application No. 3626 of2024) ZAKARIA RAFIKI NAWADU (As Administrator of the Estate of the Late John Mussa Njoka)........................................................ APPELLANT VERSUS FATUMA OMARI ATHUMANI..................................................... RESPONDENT JUDGMENT 25th September & 28th October, 2024 BARTH Y, J.: Following the passing of the deceased, John Musa Nyoka, an intricate legal battle emerged over the administration of his estate, focused on whether the respondent could be legally recognized as his customary wife and therefore included as an heir. The dispute was sparked when the respondent, claiming to have been married to the deceased according to Makonde customary rites, sought to revoke the appellant's appointment as the estate administrator, asserting that her rights as an heir had been overlooked. ' i The district court of Temeke at the One Stop Judicial Centre in Temeke (the trial court) initially ruled in favor of the respondent, recognizing her as the legal wife under customary law and ordering her inclusion in the list of heirs. However, this decision ignited a complex appellate process, as the appellant challenged the validity of the alleged customary marriage, questioning the sufficiency of evidence and adherence to legal standards for customary marriages. The appellant named above, expressing dissatisfaction with the decision rendered by trial court in Misc. Application No. 3626 of 2024, which was delivered on the 12th of July 2024, has now filed an appeal challenging that decision; 1. That, the trial court erred in law and fact by declaring the respondent Fatuma Omari Athumani as a legal wife of the deceased person without any sufficient evidence. 2. That, the Magistrate erred in law and fact by failing to consider (sic) sufficient evidence adduced by the Appellant. 3. That, the trial court erred in law and fact by ordering the respondent to be on (sic) the list of heirs without any reliable evidence to prove (sic) her marriage with the deceased person. 2 Wherefore, the appellant prays for the following reliefs: that this court allows the appeal, quashes the ruling and order of the District Court of Temeke at the One Stop Judicial Centre, declares that there was no marriage between the respondent and the deceased, declares that the respondent is not an heir to the estate, and grants any other relief this honorable court deems fit and just. The respondent challenged all the grounds of appeal presented by the appellant. By court order, both parties agreed to have the case disposed of by written submissions. The court issued a directive requiring each party to submit their written arguments, and both complied within the court's schedule. In the submission by Mr. Robert Patrice Chuwa, representing the appellant, he argued that the trial court erred in declaring the respondent as the wife of the deceased without sufficient evidence to substantiate the legality of their marriage. He contended that the trial court relied on mere allegations that the respondent and the deceased had contracted a customary marriage by paying the bride price according to Makonde customs, without any of the alleged witnesses, such as relatives, testifying in court to support this claim. ' (J 3 Mr. Chuwa referred to Section 43(5) of the Law of Marriage Act [CAP 29 R.E 2019], which mandates that a customary marriage must be registered within 30 days to be legally recognized. He cited the case of Joyce Peter vs Leonard Faustine, Matrimonial Appeal No. 7 of 2020 (unreported), where the court held that a valid marriage must be registered to be recognized by law. He emphasized that the absence of a marriage certificate in this case undermined the respondent's claim of a valid marriage, as registration is a requirement to verify its existence under Tanzanian law. Further, Mr. Chuwa noted that the law places the burden of proof on the party making the allegation. He referred to the case of Anthony M. Masanga vs Penina (Mama Mgesi) and another, Civil Appeal No. 118 of 2014, where the court held that "in civil cases, the burden of proof lies on the party who alleges anything in his favor." The appellant argued that the respondent failed to provide any concrete evidence, such as a marriage certificate or testimony from witnesses, to prove the legality of her marriage to the deceased. Mr. Chuwa also argued that the trial court wrongly included the respondent in the list of heirs without her proving that she was legally married to the deceased. He referenced Tanzanian probate law, which requires that heirs be either closely related to the deceased or named in 4 a will. For a woman to be recognized as the deceased's heir based on marriage, she must prove the legality of the marriage, which the respondent failed to do. To support his argument, he cited the case of Mahundya Mburumatare vs Mugendi Nyakangara (1969) HCD 7, where the court held that "a customary marriage is legalized by the issuance of a marriage certificate and traditional ceremonies have no legal force." He further argued that without a marriage certificate, the respondent's claim to be an heir of the deceased's estate was invalid. Moreover, Mr. Chuwa pointed out that the deceased's legal wife, Lucia Karanga, was recognized by the family, further weakening the respondent's claim. In conclusion, Mr. Chuwa submitted that the decision of the Temeke District Court was unjust and deprived the appellant of his rights. He prayed for the appellate court to quash the trial court's ruling, declare that the respondent was not the deceased's wife, and order that she be removed from the list of heirs. The appellant also sought costs for the appeal. In response, the respondent's submission, prepared by learned counsel Mr. Wigayi Julius Kissandu from the Women's Legal Aid Centre (WLAC), countered all three grounds of appeal. He argued that the trial court rightly declared the respondent to be the legal wife under customary rites, having celebrated their marriage in 2014 according to Makonde customs. Mr. Kissandu contended that on their wedding day, the deceased was accompanied by his relatives, including his younger brother, Andrea Mussa Nyoka, and the matchmaker, Constantine Moses, who brought a dowry to the respondent’s parents totaling Tsh. 300,000/-, along with other traditional materials such as "mkaja wa mama" (mother appreciation token), which consisted of two wrappers of khanga, one wrap of kitenge, and a men's loincloth. He insisted that the requirement for having witnesses was fulfilled and cited the case of Ramadhani Said vs Mohamed Kilu [1983] TZHC 31. Additionally, Mr. Kissandu argued that the law, under section 25(l)(a-d) of the Law of Marriage Act, recognizes various ways of contracting marriage, including customary marriage. He noted that section 27(1) of the Law of Marriage Act requires that a marriage be witnessed by at least two individuals. Furthermore, Mr. Kissandu acknowledged that the marriage was not registered as per the requirements of section 43(5) of the Law of Marriage Act; however, he insisted that even without registration, the marriage is not invalid, as any mischief is remedied under section 41 of the Law of Marriage Act. 6 He asserted that the respondent had discharged her burden of proof before the trial court regarding the existence of a traditional marriage with the deceased, having sufficiently demonstrated that she had lived with him for 12 years, which led to a presumption of marriage. In contrast, Mr. Kissandu noted that the deceased had lived with two women who is the respondent and "Lucia Karanga", but neither of them had a legal certificate or registered marriage. He argued that the appellant was misleading the court by referring to Lucia Karanga as the legal wife of the deceased. Therefore, he prayed that the trial court's decision be upheld and the petition dismissed with costs. In rejoinder, Mr. Chuwa contended that the respondent misrepresented the existence of a customary marriage. He emphasized that there was no evidence to support the respondent's claims, and any formalities mentioned lacked substance, as none of the individuals the respondent claimed to have accompanied the deceased appeared to testify in court. Mr. Chuwa reiterated that the case cited by the respondent was irrelevant, as it applied to flawed marriages rather than non-existent ones. Regarding section 27(1) of the Law of Marriage Act [CAP 29 R.E 2019], Mr. Chuwa noted that the respondent failed to produce witnesses or affidavits to corroborate her claims. Without a marriage certificate or 7 substantive evidence, Mr. Chuwa argued that section 41 of the Law of Marriage Act does not apply, insisting that the absence of a certificate constitutes a significant irregularity. Addressing the respondent's 12-year cohabitation with the deceased, Mr. Chuwa argued that this was a new fact introduced to gain sympathy by portraying herself as a victim. In conclusion, Mr. Chuwa asserted that there was no evidence to support the respondent's claims of being the deceased's wife or legal heir, and he prayed for the trial court's decision to be quashed and the appeal allowed with costs. Before going into merit of this matter, it is best to understand the genesis of this matter. This case revolves around a contentious probate dispute, in which the central issue is the legal recognition of a customary marriage. The respondent initiated the proceedings before the trial court, seeking to revoke the appointment of the appellant as the administrator of the estate of the late John Musa Nyoka. The respondent argued that she was excluded from the probate process and was not recognized as one of the heirs, despite claiming to be the legal wife of the deceased under customary marriage. Having heard the arguments of both sides, now, all grounds of appeal presents a single issue for determination: whether the respondent can be legally recognized as the deceased's wife and, as such, entitled to inherit from his estate. In resolving this appeal, the court will re-evaluate the trial court proceedings and analyze the presented arguments regarding the legitimacy of the claimed customary marriage. This court, as the first appellate body, holds the authority to rehear and reassess evidence to either affirm or independently arrive at a different finding, in line with precedents such as France Michael Nyoni vs Republic, Criminal Appeal No. 505 of 2020, which reinforce the appellate court's role in conducting a comprehensive review. The core issue at trial concerned the revocation of the letters of administration granted to the appellant, based on allegations that the appellant herein had failed to acknowledge the respondent as the deceased's customary wife and rightful heir. The respondent, who sought appointment as administratrix in place of the appellant, claimed that her marriage to the deceased was witnessed by his younger brother, Andrea Musa Nyoka, and his matchmaker, Constantine Mosses, and had included payment of dowry per Makonde customs. She also asserted her caregiving role for the deceased alongside his relatives. However, significant inconsistencies appeared in the respondent's affidavit, with crucial information regarding the marriage year and specific customs followed left blank. The appellant argued that the respondent's 9 claims lacked substantive proof, citing Section 110(1) of the Evidence Act, Cap 6, R.E 2022, which places the burden of proof on the party asserting the existence of facts. Furthermore, the respondent's supporting details about which customary rituals were followed and witnesses only surfaced in her submissions, rather than in her affidavit. I am in agreement with the respondent's counsel who contended that the absence of a marriage certificate does not necessarily negate the validity of a customary marriage if relevant rituals have been fulfilled, as per Section 41(f) of the Law of Marriage Act. Nonetheless, the omission of critical affidavit details suggested insufficient initial evidence to support the customary marriage claim. Considering the fact that submissions cannot replace the factual basis set forth in pleadings, as stated in Barclays Bank (T) Ltd vs. Jacob Muro, Civil Appeal No. 357 of 2019, emphasizing that both parties and the court must adhere strictly to pleadings. The respondent before the trial court prayed to revoke the appellant's letters of administration, alleging that the appellant had misrepresented or omitted key information, violating sections 49(l)(b), (c), and (e) of the Probate and Administration of Estates Act. However, the claim about not recognizing lawful heirs is deemed premature, as the appellant had yet to file the required estate inventory and accounts, which io beneficiaries or creditors could review under section 107(5) of the Law of Marriage Act. Furthermore, the respondent filed the application directly with the trial court instead of first approaching the appellant as the estate administrator. As emphasized in Monica Nyamakare Jigamba vs Mugeta Bwire Bhakome & Another (Civil Application No. 199 of 2019), where the court observed that interested parties are generally expected to consult the administrator regarding the identification of heirs and distribution of estate assets prior to court intervention. Based on the analysis, this appeal is found to be meritorious. The trial court's ruling and order are hereby quashed, as the question of recognizing the respondent as the deceased's wife and heir was raised prematurely and outside the appropriate procedural context. Consequently, no order as to costs is issued. It is so ordered. Dated at Temeke this 28th day of October, 2024 G.N. BARTI JUDGE ii