Agnes Adam vs Erick John Shewiyo (Civil Appeal No. 117 of 2022) [2024] TZCA 1301 (23 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA f CO RAM: KOROSSO, J.A.. KENTE. J.A.. And MGONYA. J.A.^ CIVIL APPEAL NO. 117 OF 2022 AGNES A D A M ............................... .......................................... APPELLANT VERSUS ERICK JOHN SH EW IYO ............................................ .................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Mnyukwa, 3.^ Dated the 29th day of October, 2021 in PC. Civil Appeal No. 34 of 2021 JUDGMENT OF THE COURT 4th & 23rd December, 2024 KOROSSO, J.A.: This appeal arises from a decision of the High Court of Tanzania sitting at Mwanza, in PC Civil Appeal No. 34 of 2021 (Mnyukwa, J.) of 29/10/2021. At Ilemela Primary Court, the appellant filed claims seeking to be granted a decree for divorce and division of matrimonial properties. She contended to have been living together with the respondent under the same roof from 2012 to 2019. According to the appellant, she and the respondent had joined hands in a customary marriage in 2012 and were i

blessed with one issue namely, Benjamin Erick John Shirima, seven (7) years of age at the time of instituting the claims against the respondent. The appellant further testified that during the period she and the respondent lived together, they acquired the reputation of being husband and wife. She alluded that they jointly acquired properties including a residential house situated at Bupumula, Nyamihongolo; one motor vehicle Toyota 1ST make, Registration Number T885 DNR and a variety of household items as listed. In 2019, after their relationship turned sour, she left the house without taking anything of what they had acquired jointly during their cohabitation. The appellant claimed that when she entered into a relationship with the respondent, she was not aware that he was already married. On his part, the respondent acknowledged knowing the appellant, however, not as his wife, but as a mother of his son. He denied having lived with the appellant, saying they had a relationship but they never cohabited and never acquired any property together. He argued that the properties listed as jointly acquired, he had purchased alone. After a full trial, the trial court found there was no marriage between the parties since at the time the respondent met the appellant he was already in a monogamous Christian marriage to Veronika Fuko (DW2).

However, it held that taking into account the circumstances, justice demanded invoking section 160(2) of the Law of Marriage Act, Cap 29 (LMA), since the appellant was entitled to a share of the properties acquired during the period of her relationship with the respondent. The trial court considered the fact that the contending parties had lived together and the respondent was then separated from his wife. Therefore, the trial court ordered for the distribution of the properties found to have been acquired jointly, ordering for the valuation of the house at Block No. 275, Bupumula Rd, and thereafter, the appellant be provided with a forty (40) percent share while the respondent was to get a sixty (60) percent share, with each having the first option to buy off the other. There was also an order for sale of the motor vehicle, Toyota 1ST Registration No. T885 DNR and subsequently, each party to get fifty (50) percent of the proceeds thereof. H ie household items listed were also distributed between the two parties. The custody of the child of the cohabitation was left in the hands of the respondent since he was the one staying with the child at the time, and the appellant was granted access rights to the child. Disgruntled with the decision of the trial court, the respondent successfully appealed to the District Court of Nyamagana in Civil Appeal No. 01 of 2021. The appellant 3

was unsatisfied, and her appeal to the High Court was dismissed for lack of merit, hence the current appeal in this Court. The instant appeal was lodged through a memorandum of appeal that fronts the following three grounds:

1. That the appellate judge erred in law to misinterpret section 160(2) of the LMA and hence arrived at an erroneous judgment regarding the division of properties acquired during the subsistence of the parties' relationship.
2. That the appellate Judge erred in law not to order the division of properties acquired during the subsistence of their relationship.
3. That the appellate Judge erred in law to decide that the trial court of Ilemela Primary Court proved the existence of a presumption of marriage between the parties which was not the case. On the day the appeal came for hearing before us, Mr. Innocent Kisigiro, learned counsel, represented the appellant, while the respondent, appeared in person, and fended for himself. To be noted is the fact that before the hearing commenced, Mr. Elias Hezron, learned advocate, holding brief for Mr. Linus Munishi, learned Advocate for the respondent, informed the Court that he had instructions to pray that Mr. Munishi be discharged from representing the respondent since the

respondent had withdrawn his instructions. We granted the uncontested prayer and discharged Mr, Munishi from representing the respondent and further granted the prayer from the respondent to appear in person, unrepresented. When provided the opportunity to amplify the grounds of appeal, Mr. Kisigiro decided to argue grounds one and three jointly. He faulted the first and second appellate courts for; one, wrongly construing the decision of the trial court on there being a finding on presumption of marriage for the appellant and respondent, and two, misinterpreting the provision of section 160(2) of Law of Marriage Act, Cap 29 (LMA) and thus arriving at an erroneous finding in the distribution of properties acquired by the appellant and the respondent during the subsistence of their relationship. He argued that, while the appellant was not disputing the fact that the parties lived together for about eight (8) years, the trial court having rebutted the presumed marriage between the contending parties, the proper procedure for the first and second appellate courts as guided by the holding in Cecilia Mshamu v. Dick Kawago (2001) T.L.R 318, should have been to hold that the properties acquired or developments made together during their cohabitation without the involvement of any other person including the wife of the respondent, are joint efforts of their relationship. The learned counsel, in his written submission on page 3,

states further that; "In the instant appeal the parties had no capacity to m arry but what they have acquired on jo in t efforts should be divided equally." According to the learned counsel for the appellant, the first and second appellate courts should have confirmed the decision of the trial court which had under the circumstances properly invoked the provision of section 160(2) of the LMA in line with the decision of the High Court in Harubushi Seif (supra), which was adopted by the Court in Hemed S. Tamim v. Renata Mashayo (1994) T.L.R. 197. In the latter case, the Court had stated that courts should consider the application of section 160(2) of LMA where the presumption of marriage is rebutted and there are properties acquired jointly by the contending parties during the subsistence of the relationship. He thus implored us to find that in the instant case, the trial court correctly ordered for the division of properties acquired during the subsistence of the relationship of the contending parties and therefore, allow the appeal. On the third ground, the learned counsel for the appellant faulted the first and second appellate courts for holding that the trial court had erroneously found that the presumption of marriage between the appellant and respondent was proved. He contended that this finding was

misconceived because the trial court never made the said finding as can be discerned from pages 5-7 of the judgment of the trial court. Furthermore, he argued, on page 8 of the said judgment, the trial court held that the parties were not legally married when it stated: "Ni ukw eli usiopingika kwamba Wadaawa s i wana ndoa," According to him, the trial court expressly stated that upon analysis of evidence, it was of the view that there was no marriage of any type between the parties be it forma! or informal. He faulted the first and second appellate courts for finding otherwise and in the process occasioning a miscarriage of justice. Regarding the second ground of appeal, Mr. Kisigiro stated that the underlying issue therein had already been addressed when submitting on the argued two grounds and he thus had nothing further to add. He concluded by imploring us to allow the appeal and retrieve the trial court's consequential orders so that the properties acquired during the relationship of the appellant and respondent be divided equally. In response to the grounds of appeal, the appellant categorically denied having been married to the appellant or having lived or acquired any properties together. He contended that at the time he met the appellant, he was already a married man. He implored us to decide on the

appeal upon assessing the evidence on record critically and dismiss the appeal for want of merit. The rejoinder by the learned counsel for the appellant was brief, essentially a reiteration of his submission in chief and the prayers. In determining the appeal, having revisited the record of appeal, and considered the written and oral submission from the appellant's counsel and the oral submission from the respondent we are constrained to address two issues; one, whether the appellate courts properly interpreted section 160(2) of the LMA and two, whether the appellate courts properly considered the findings of the trial court on whether or not presumption of marriage was established on balance of probabilities. We will start deliberating the second issue and on this point, we are constrained to reproduce the holding of the trial court on this issue. On page 105 of the record of appeal, it states that: " ... N i ukw eii usiopingika kwamba wadaawa s i wanandoa. Ushahidi unaonyesha kwamba mdaiwa alib ariki ndoa ya kikristo tarehe 02/01/2010 (kielelezo NIN) chajieieza). Hivyo inavyosadikika kuwa ndoa ya kim ila ya wadaawa n i b a tiii m beie ya macho ya sheria.... Kwa kuangafia ta fsiri ya kifungu hicho cha sheria, ndoa ya kim ila ya wadaiwa kwa Ushahidi wa picha 8

aiiotoa m dai (tazama kielelezo A l, A2, A3, A4, A S na A6) unaonesha Hifungwa mwaka 2012 m iaka m iw ili (2) baada ya ndoa ya mdaiwa na SU2 kufungwa. Na ndoa hiyo Myofungwa kabla ushahidi unaonesha n i ya Kikristo na n i ya mke mmoja (tazama kielelezo N1N). Kwa h a li hiyo ndoa h ii ya wadaiwa s i h aiali kisheria kw ani iiifungw a w akati mdaiwa ana ndoa ya mke mmoja ambayo Hishafungwa. Kisheria hakuna ndoa ka ti ya wadaawa hivyo mahakama haiw ezi kutoa taiaka kwa ndoa ambayo s i haiali." From the excerpt above, undoubtedly, the trial court found that there was no marriage in existence between the respondent and the appellant because the respondent had proved on the balance of probability that being in a marriage already, he had no capacity to marry anyone else. Essentially, it also rebutted the presumption of marriage between the parties. A careful scrutiny of the judgment of the first appellate court shows that the issue it considered was why the trial court upon concluding that there was no recognized marriage between the contending parties, proceeded to distribute the properties it held to have been jointly acquired by the parties (who it considered to have lived in concubinage) and rebutted the presumption of marriage. On the part of the second appellate 9

court, when discussing the finding of the trial court on whether the presumption of marriage could be inferred from the parties on hand, it held on page 195 of the record of appeal, that: " Since there was subsisting m arriage on the p art o f the respondent and because the long relationship o f the parties is not covered under the law, the tria l court was wrong to invoke the provision o f section 160(2) o f the Law o f M arriage Act, Cap 29 R.E 2019. As it was rightly observed by the first appellate court that the issue o f the division o f m atrim onial assets cannot be established if the presum ption o f m arriage is not established..." Having carefully scrutinized the judgments of both the first and second appellate courts, we have failed to find anywhere, where the trial court declared there being a presumption of marriage between the parties in this appeal. Our observation is further amplified by the observation made by the second appellate court on page 196 of the record of appeal that: "It is worth to note that, as it is clearly explained under ground one o f the appeal, after this court finds there is no presum ption o f m arriage, it cannot m ake any consequential orders ..." 10

Essentially, faulting the trial court for proceeding to divide properties acquired by the parties during their cohabitation after rebuttal of the presumption of marriage. We thus find the ground misconceived and dismiss it Addressing ground one of the appeal, we begin by reproducing section 160 (1) and (2) of LMA which states: "160(1)- Where it is proved that a man and woman have lived together fo r two years or moref in such circum stances as to have acquired the reputation o f being husband and wife, there sh all be a rebuttable presum ption that they were duly m arried. (2)- When a man and a woman have lived together in circum stances which give rise to a presum ption provided for in subsection (1) and such presum ption is rebutted in any court o f com petent jurisdiction, the woman sh all be entitled to apply for m aintenance fo r h erself and fo r every ch ild o f the union on satisfying the court that she and the man did in fact live together as husband and wife fo r two years or more, and that the court sh all have jurisdiction to make order or orders fo r m aintenance and, upon application made therefor either by the woman or the man, to grant such other reliefs, including custody o f l i

children, as it has jurisdiction under this A ct to make or grant upon or subsequent to the m aking o f an order fo r the dissolution o f a m arriage or an order fo r separation, as the court m ay think fit\ and the provisions o f this A ct which regulate and apply to proceedings fo r and order o f m aintenance and other reliefs sh all in so fa r as they m ay be applicable regulate and apply to proceedings fo r and orders o f m aintenance and other reliefs under this section." The learned counsel for the appellant invited us to interpret the provisions in favour of the appellant, in that, despite there being no formal marriage between the parties, and the presumption of marriage having been rebutted, the appellant reprisal could be found under section 160(2) of the LMA, where even in such circumstances, a court is enjoined to make consequential orders that may include division of matrimonial properties just like in instances of dissolution of marriage or separation. Certainly, the essence and import of section 160(2) of LMA has been discussed in various decisions of this Court and given rise to mainly two schools of thought. The first school of thought envisages that where there is a rebutted presumption of marriage between parties, the court can invoke the provision of section 160(2) of LMA to make consequential orders on the division of properties acquired during the subsistence of the 12

relationship of the two contending parties. In the case of Harubushi Seif (supra), the High Court held that: "under the provisions o f section 160(2) o f the M arriage Act, if a woman has satisfied the court that she has lived with the man fo r two years or more, then the court is statutorily vested with the jurisdiction to grant or make orders to the parties in the same way as it has jurisdiction to make orders consequent on divorce or separation o f the duty m arried spouses under the provisions o f the M arriage Act... In the case of Hidaya Ally v. Amiri Mlugu, Civil Appeal No. 105 of 2008 (unreported) it was held: "Ipso jure, the wording o f the above-quoted section (section 160(2) o f LMA) shows that the courts have the pow er to order division o fproperty once the presum ption o f m arriage is rebutted ju st like in instances o f dissolution o f m arriage or separation." Furthermore, in the case of Hemed S. Tamim (supra) the Court held: "... where the parties have lived together as husband and wife in the course o f which they acquired a house, despite the rebuttal o f the presum ption o f m arriage as provided under s. 160(1) o f the Law o f Marriage A ct 1971, the courts 13

have the pow er under section 160(2) o f the A ct to make consequential orders as in the dissolution o f m arriage or separation, and division o f m atrim onial property acquired by the parties during their relationship is one such order." (See also, Valentine Leopold Ndanu v. Eva Aminiel Kitomari and Another, Civil Appeal No. 323 of 2020 (unreported)). The second school of thought on the issue asserts that there can be no claims of division of properties under section 160(2) of LMA. In the case of Odhiambo Eduor v. Jane Thomas Abuogo, Civil Appeal No. 21 of 2012 (unreported), where the trial court had rebutted the invocation of the presumption of marriage between the parties, the Court held: "... From the decision o f the High Court in C ivil Appeal No. 1 o f2000, what the learned tria l Judge had to address is the properties which were acquired how they were acquired, and the extent o f the contribution made by the respondent in the acquisition o f the properties w ithout linking the sam e with a presum ed m arriage between the parties.." What we have gathered is that most of the decisions in the first school of thought, address situations where the parties have lived together as husband and wife for some time but failed to establish a 14

presumption of marriage. In such circumstances, courts, under section 160(2) of the LMA may make consequential orders as in dissolution of marriage, and division of matrimonial property acquired by the parties during the pendency of their relationship as held in Hemed S. Tamim (supra). Certainly, our assessment of all the cited cases is that they are distinguishable from the instant case based on the different circumstances pertaining as shown herein. In all the cited cases there was no evidence that one of the parties was married as in the instant case and in the case of Valentine Leopold Ndanu (supra) the issue was not the distribution of properties. In the present case, the trial court on pages 105 and 106 of the record of appeal stated: "... Kuhusu m ali za pam oja mahakama h ii kwa kuangalia ushahidi uliotolew a mbele yake n i dhahiri kwamba m bele ya macho ya sheria hapakuwa na ndoa ha/a/l ka ti ya wadaawa. Lakini kupitia fungu la 160(2), Sheria ya Ndoa; Sura 29 M apitio 2002 m dai ameweza kuthitibitisha kwamba w aliishi na mdaiwa kama mume na mke zaid i ya m iaka m iw ili (tazam a kielelezo B, C l, C2, D1 na D2) hivyo ana haki ya kuomba mgao wa m ali za pam oja kutokana na m ahusiano yao. Kw ani ushahidi unaonesha kuwa mdaiwa 15

alitengana na mkewe baada ya kumpa ujauzito m dai na w attshi na m dai hadi sasa watipofarakana. Suala h ili lilifafanuliw a vizuri na Ja ji Korosso (kama alivyokuwa) katika kesiya Harubushi S e if v. Am ina Rajab [1986] TLR 221. Naye alisem a kama mwanamke ataithibitishia mahakama kuwa a/fishi na mwanaume kwa miaka m iw ili au zaid i atakuwa na haki kisheria kuomba matunzo ya Watoto wa muungano wao na mgawanyo wa m ali zilizopatikana kwa juhudi za pam oja katika m ahusiano yao." To be noted is the fact that section 160(2) would only be applicable where a man and a woman have lived together in the circumstances that would give rise to the application of section 160(1) of the LMA. As already stated, this is not applicable in the present case. Upon discarding the presumption of marriage, the trial court moved to consider section 160(2) of LMA and its application in the present case. We firmly believe that had the trial court carefully considered the peculiar circumstances in this instant case, it would have carefully analyzed the evidence and concluded otherwise. Even the appellant's pleadings were based on the court's finding a marriage be formal or otherwise, existed. 16

In addition, to further amplify the peculiar circumstance in this case that is as stated earlier the fact that the respondent was already married to veronica Fuko (DW2). A fact that is not disputed by the appellant who states that she was unaware of the existence of the fact that the respondent was already married when she got involved with him which resulted in cohabiting with him for eight years. We are of the view that since the decisions cited by the learned counsel for the appellant, addressed circumstances where none of the cohabiting parties was in a monogamous marriage. In light of the above, we are of the firm view that, in the instant appeal, the court having rebutted the presumption of marriage for the contending parties, the avenue proposed by the learned counsel for the appellant, as provided under section 160(2) of LMA was unavailable. This is because one of the conditions for applying section 160(2) of LMA as provided by various decisions cited and discussed above, is that the concerned parties must be seen to be living as husband and wife, which under the circumstances cannot be the case as in in the instant case, the respondent was already in a monogamous marriage and it would have thus been impossible to regard them as husband and wife. The other problem in the present case is that the appellant claims in her pleadings were based on the property being matrimonial assets, which as shown 17

above could not be the case in the absence of a formal marriage or and the trial court's rebuttal of the presumption of marriage. In consequence, understanding the right of individuals to reap the fruits of their labour, if the appellant is so inclined she may pursue legal recourse for the claimed contribution to the properties acquired during her relationship with the respondent by way of a civil suit or otherwise. All in all, the appeal is dismissed. Each party is to bear its own costs. DATED at DAR ES SALAAM this 18th day of December, 2024. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 23rd day of December, 2024 in the presence of Mr. Innocent Kisigiro, learned counsel for the appellant and the respondent in person via video conference from High Court of 18