Erasto Jonathan Nkinda vs Azzalina Betuel Ngowi (Civil Appeal No. 795 of 2023) [2026] TZCA 589 (14 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWANPAMBO. J.A.. KENTE. J.A. And MGONYA. J.A.^ CIVIL APPEAL NO. 795 OF 2023 ERASTO JONATHAN N KIN D A ....... . ..................... . ...................... APPELLANT VERSUS AZZALINA BETUEL N G O W I......................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza) (Mnvukwa. J.^ dated the 11th day of March, 2022 in Matrimonial Appeal No. 51 of 2021 JUDGMENT OF THE COURT 6th & 14th May, 2026 KENTE, 3.A.: The High Court of Tanzania (sitting at Mwanza), delivered a judgment in Matrimonial Appeal No. 51 of 2021, dated 11th March, 2022 by which, among other things, it determined that, the present appellant who was the respondent at the time and the present respondent who was the appellant, were until the time which is contemporaneous with the occurrence of the events leading to this dispute, respectively a husband and wife having acquired a spousal status after living together and cohabiting for a couple of years. To this end, the High Court went on annulling the presumed marriage and distributing the properties jointly acquired by the parties during the subsistence of their purported marriage. The High Court further considered and made some orders related to the custody and upbringing of the children born to the parties during their cohabitation. Unhappy with the decision of the High Court, the appellant has now escalated his grievances to this Court citing four grounds of appeal one of which faults the learned High Court Judge for holding that the parties were respectively a husband and wife having acquired the said spousal status through a presumed marriage, contrary to the pleadings and the reliefs sought by the parties in the trial court. The history of this case which is relevant to the determination of this appeal is briefly as hereunder: Sometime in 2019, the respondent as the petitioner, petitioned the District Court of Geita for among other orders, a decree of divorce and an order for equal distribution of matrimonial properties allegedly acquired by the appellant and her through their joint efforts during subsistence of what the present respondent called "a customary marriage". The proceedings were brought against the present appellant who was then the respondent. The specific reliefs sought by the respondent (the petitioner), before the trial court were: 2 a) A declaratory order that the marriage has broken down irreparably; b) An order to dissolve the marriage and decree of divorce be granted; c) An order for equal division of matrimonial assets; d) An order for custody of children; e) Maintenance of children be placed into the respondent until they attain 18 years; f) Maintenance of the petitioner until remarrying or death; and g) Any other reliefs which the court may deem just to grant. In support of the first and second reliefs, the respondent pleaded specifically in paragraph 3 of the petition thus: "that, we cohabited and celebrated a custom ary m arriage in Geita in the year 2005 and lived in Geita since then." The present respondent was, on that premise seeking a declaration that the parties were not living in concubinage as alleged by the appellant Upon trial of the matter, the learned Senior Resident Magistrate in his judgment rendered on 23rd July 2021, in considering the first and second reliefs sought by the present respondent, relied on the parties' pleadings and the evidence presented. Consequently, his finding was that, on the facts, there was neither a customary marriage nor a presumed marriage between the parties as the respondent had sought to establish. Instead, the learned trial magistrate took the view that, despite long term cohabitation, the couple was living in concubinage. The case of Zakaria Lugendo V. Shadrack Lumilang'ombe [1987] TLR 31 was cited to underscore the point that: "Marriage uniike concubinage is a solem n and serious institution and that [in a situation akin to the present one], there ought to be evidence o f a custom ary law m arriage to constitute m arriage, such as handing over cerem ony by parents o f the g irl to the boy, or evidence o f certain rites recognized by the relevant custom ary law o f that tribe". Having so found, the trial magistrate declined to grant the first two reliefs sought by the respondent but he went on holding that, indeed there were some properties which were either jointly acquired or substantively developed during the parties' cohabitation to which each party was entitled. The trial magistrate also made some orders in relation to the custody and maintenance of the couple's children. Unhappy with the decision of the District Court, the respondent launched an appeal to the High Court. One of the grounds advanced in support of the appeal by which the trial magistrate was faulted was, having erred in both law and fact when he held that, there was no lawful marriage between the parties and that, while they had started as a love match, throughout their relationship, they lived in concubinage. Upon consideration of the appeal, the High Court found that, the evidence on record had established that, on a balance of probabilities, a presumed marriage existed in terms of section 160(1) of the Law of Marriage Act and that, the relationship between the parties herein was a valid marriage for the purpose of legal remedies. The learned Judge of first appellate court took the view that, the evidence led by the respondent in support of the existence of a presumed marriage was not controverted and that, as such, it was rather erroneous for the trial court to hold to the contrary. Upon the above finding, the learned High Court Judge went on, in terms of section 160(2) of the Law of Marriage Act and the decision of this Court in the case of Hemed S. Tamimu V. Renat Shayo [1994] TLR 197, to order the division of matrimonial assets just like in dissolution of any other marriage recognized by law. As stated earlier, the appellant was deeply aggrieved by the decision of the High Court. Consequently, he has come on appeal to this Court advancing four grounds of appeal one of which faults the learned High Court Judge for having erred both in law and in fact by holding that the parties herein were in a deemed and therefore a legally recognized marriage stemming from long cohabitation and reputation. In the written submissions filed on 25th September, 2023, Mr. Kassim Gilla learned counsel appearing for the appellant, on ground one of the appeal, submitted that, the learned Judge of the first appellate court went astray when she held that the parties had never been married under customary law and yet went on to raise ex mero motu the rebuttable doctrine of presumption of marriage before she finally determined it in the respondent's favour without according a hearing to the parties. The crux of Mr. Gilla's submission on this point was that, the legal doctrine of presumption of marriage under section 160(1) of the Law Marriage Act, was neither pleaded by the respondent in the pleadings filed in the trial court nor raised as one of the grounds of appeal to the High Court. The learned counsel went on to submit that, what the learned Judge of the first appellate court did amounted to deviating from the parties' pleadings thereby raising issues that the parties themselves did not raise. Still on the point, the learned counsel submitted that in this case, the presumption of marriage was rebutted through the evidence showing that the appellant was legally married to other two women meaning he was incompetent to remarry another woman. On behalf of the respondent, Ms. Judith Nyaki learned counsel, countered ground one of this appeal by submitting that, the respondent had pleaded cohabitation with the appellant a fact which was basically accepted by him. She also contended that the doctrine of presumption of marriage was impliedly put forward by the respondent in her pleadings and therefore the High Court Judge was correct to adjudicate on it. In addressing the complaint raised by Mr. Gilla on behalf of the appellant being that, the learned Judge of the first appellate court went on adjudicating the question of presumption of marriage without according a hearing to the parties, Ms. Nyaki submitted that, the evidence led by both sides including the evidence adduced by the couple's local leaders at Geita showed that, the appellant and respondent had cohabited and acquired the reputation of a husband and wife in the perspective of the public. We have carefully considered the judgment appealed against and the submissions of each counsel. In the determination of this matter, we propose to first start from the premise that, in civil litigation, parties are bound by their pleadings meaning they must succeed or fail based on the 7 facts and claims presented in their filed documents rather than new assertions and arguments and the courts are precluded from entertaining matters not raised by the parties. To this end, any evidence at variance with the pleadings must be ignored by the court. It follows therefore that, failure to observe these rules of pleading can lead to failure in the suit, as ordinarily, a party's case stands or falls based on the veracity of their pleadings and the evidence supporting those averments. While we are mindful that under our jurisdiction, a petitioner can raise and rely on the doctrine of presumption of marriage under section 160 of the Law Marriage Act alongside a claim of a celebrated, legally valid marriage, this can only be typically in the form of what is known as alternative or fallback pleas. Put in simple terms, a petitioner can plead that either they are legally married to the respondent, or, in the alternative argue that, if the court finds the ceremony invalid, as in the instant case, they have satisfied the requirements of section 160(1) of the Law of Marriage Act through cohabitation for two or more years, earning the reputation of being a husband and wife. Apparently, being mindful of the above stance of the law, Ms. Nyaki spiritedly submitted that, in her petition to the trial court, the respondent had pleaded presumption of marriage by implication and that as such, the learned Judge of the first appellate court was on firm ground to inquire into this issue and finally to come to the conclusion that indeed the parties had in the eyes of the public, acquired the status of a husband and wife. With greatest respect to Ms. Nyaki, we must state right away that we totally disagree with her as she seems to have totally failed to properly comprehend the principles of pleading in civil cases. Underlying all cases on pleadings is a well-settled principle that pleadings cannot be implied. It is a rule of thumb and indeed authorities abound that, the other party must know the specific case they have to meet in order to prepare their defence and avoid trial by ambush. Ms. Nyaki told us, in very certain terms that, in her pleadings, the respondent had impliedly raised the doctrine of presumption of marriage. In our view, that was not sufficient to establish that, indeed the respondent had raised the doctrine of presumption of marriage as an alternative plea to the existence of a customary marriage which she had put forward. The learned counsel should have endeavored to show us which part of the petition could be said to either be or contain an implied plea of presumption of marriage. We have examined the record and we are satisfied that the respondent's case was based on the alleged existence of a customary marriage between her and the appellant and not a presumed marriage as Ms. Nyaki would want us to find. We have also not found any evidence on record which suggests alternative or fallback pleas by the respondent. We understood this state of affairs to mean that, the respondent's case was strictly confined to the existence of a customary marriage between her and the appellant and as such, she was bound by the pleadings which she had submitted to the trial court. For the reasons given, we have found force in Mr. Gilla's argument regarding the impropriety of the approach and the view taken by the learned Judge of the first appellate court. We agree that indeed, it was not open for the learned Judge to simply raise sua sponte and subsequently adjudicate a presumption of marriage that was not raised in the pleadings. In this regard, we wish to observe that, just as it is to the parties, the courts at any level, are bound by the pleadings of the parties and mandated to limit their decisions to the issues identified from the pleadings and raised by parties during trial. It follows therefore that, unlike what the learned Judge of the first appellate court did, a court cannot raise new substantive issues not presented by litigants and determine them. 10 As a consequence, if a court decides an issue not raised in the pleadings or during the trial, this failure constitutes a misdirection or, in some cases, a vitiation of the proceedings. On the other, in a situation akin to the one under consideration, an appellate court will not consider fresh factual issues not raised during trial, except where there has been a significant misapprehension of evidence. Upon the above discourse of the law, following on heels is the question as to whether, in the instant case there was any misapprehension of the evidence by the trial court as to warrant the intervention of the first trial court. On this question, it behoves us to observe that, a misapprehension of evidence occurs where a judge or magistrate misunderstands, ignores or misinterprets crucial evidence during a trial, often resulting in a miscarriage of justice or unsafe verdict. It involves failing to consider relevant evidence, mistake regarding the substance of evidence, or improper analysis. At the appellate level as it was before the High Court in the present matter, for a misapprehension of evidence to be a successful ground of appeal, it usually must go beyond a simple mistake and be proven to be material to the final decision. (See B.C. Material Misapprehension of Evidence is an Extricable error 11 of Law: By Lisa c Munro: Arbitration Matters: Notes on New Arbitration Cases in Canada, https://arbitrationmtters.com visited on 13th May, 2026). We have gone through the record of the trial court and the resulting judgment. Unlike the learned Judge of the first appellate court whose decision suggests the trial magistrate's misapprehension of the evidence, we are unable to detect even the remoteness of the learned magistrates ignoring the parties key testimonies, mistaking the testimonies' substance or improperly using or interpreting such testimonies. To the contrary, the trial magistrate appears to have been well informed that the respondent had specifically alleged in the petition that, she was in a customary marriage with the appellant as opposed to having acquired a spousal status after long cohabitation. Mindful that long-term cohabitation does not automatically turn a concubine into a wife regardless of the duration of the relationship or the presence of children, the learned trial magistrate left no chance for the respondent to subsequently alleged that by reputation, she had acquired the status of a wife after cohabiting with the appellant for a couple of years. The wide conceptualization we have given to the "misapprehension of evidence" together with what we could gather from the proceedings and judgment of the trial court, did not warrant the intervention of the 12 learned High Court Judge. In the absence of proof of a customary marriage which was pleaded by the respondent, long term cohabitation could not be relied upon to create a valid marriage. In view of what we have said in this judgment, we hold that the High Court Judge misdirected herself. The basis upon which she arrived at her decision was flawn because the question as to whether the parties had lived and cohabited as to acquire the reputation of being spouses was neither raised in the pleadings nor adjudicated by the trial court. Her mandate was limited to the correctness or otherwise of the decision of the trial court based on what was specifically pleaded by the parties. It must be very elementary to say that the decision reached by a court of law basing on an issue which was not part of the pleadings is a nullity and it cannot be left to stand. (See: Salim Said Mtomekela v. Mohamed Abdallah Mohamed, Civil Appeal No.149 o 2019) [2023] TZCA 15 (15 February 2023). In the ultimate event, we accordingly allow the appeal and set aside the decision of the High Court. Needless to say, in doing so, save for an order regarding the division of the jointly acquired matrimonial properties which is vacated, we confirm and restore the original decision made by the trial court. For the sake of clarity, the respondent shall be at liberty to 13 claim a share of the property jointly acquired during cohabitation according to law. Each party shall bear their own costs. DATED at MWANZA 13th day of May, 2026. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGOIMYA JUSTICE OF APPEAL Judgment delivered virtually this 14th day of May, 2026 in the presence of Mr. Kassim Seleman Gilla, learned counsel for the appellant who also held brief for Ms. Judith Nyaki, learned counsel for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. A,L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 14