Kwanga v Akachapa (PC Civil Appeal No. 1 of 1997) [1998] TZHC 2536 (24 November 1998)

398 TANZANIA LAW REPORTS [1999]T.L.R a DADI SAIDI KWANG A v. NURDIN AKACHAPA HIGH COURT OF TANZANIA ATMTWARA (Kaji, J.) (PC) CIVIL APPEAL No. 1 OF 1997 (From the Judgment of Mtwara District Court at Mtwara in Civil Appeal No. 17 of 1997) Family Law — Divorce - Dissolution of marriage - Whether dissolution effected jj by talak and division of matrimonial assets - Law of Marriage Act 1971. Family law - Marriage - Contracting a civil marriage - Whether a civil marriage is contracted by registration of intention - Section 29 of the Law of Marriage Act 1971. E Family Law — Adultery — Proof of adultery. The respondent contracted a civil marriage with Joane Reveta. Twenty four years later the respondent issued Joane with a talak and on the same day matrimonial properties jointly acquired were divided. Five months later, the appellant and Joane Jr agreed to contract a civil marriage and registered their intention at the District Commissioner ’ s Office. Three months later, the respondent successfully sued the appellant for adultery damages.The appellant unsuccessfully appealed to the District Court. Hence the present appeal. Held: (i) Civil marriages are recognized by the provisions of section 29 of the Law of Marriage Act 1971, Chapter 71. (ii) Although the issuance of a talak is evidence that the marriage has broken H down, it does not amount to a dissolution of such marriage; under the Law of Marriage Act, only courts of Law can dissolve a lawfully contracted marriage; in the absence of such a divorce decree in this case, the marriage between the respondent and Joane was still in existence, and so anybody having an affair with her commits adultery. I

DADI SAIDI KWANGA v. NURDIN AKACHAPA 399 (iii) Adultery is a matter of fact and so can be established by direct or circumstantial A evidence; there was insufficient evidence to prove to a degree of reasonable probability that the appellant and Joane had lived together either as lovers or as “ husband and wife. ” (iv) There was no evidence that the intended marriage between the appellant g and Joane was finally contracted; mere registration of an intention to marry cannot be sufficient evidence of adultery. Appeal allowed Case referred to: q (1) Gai Lipenzule v. Sumi Magoge [1983] T.L.R.289 Statutory provision referred to: (1) Law of Marriage Act 1971, section 29 jj JUDGMENT (Delivered 24 November 1998) E KAJI, J.: This is a second appeal. The appellant Dadi Saidi Kwanga was successfully sued by the respondent Nurdin Akachapa for adultery damages before Mikindani Primary Court. His appeal to Mtwara District Court was dismissed for want of merits. Hence this appeal. F It was common ground before the trial court that in 1972 the respondent Nurdin, a muslim, married DW2 Joane Reveta, a Christian, under a Civil Marriage. On 26 December 1996 the respondent issued Joane with a talak bearing the following message: Mimi Nurdin Akachapa natoa talaka kwa aliyekuwa mke wangu Bi Joan R Mosha kuwa si mke wangu tena kuanzia tarehe hii ya leo 26, Desemba 1996. jj Hivyo mzazi mpokee mwanao. Asante. Mimi Mwanao (Signed Nurdin Akachapa)

400 TANZANIA LAW REPORTS [1999] TL R. A Pursuant to that talak the said Joane was on or around 12 February 1997 handed over to her brother in the name of Temba as her guardian. On that very same day the properties which they had acquired jointly during the existence of their marriage were divided. Later the respondent B approached her (Joane) for “ Kurejea ” but she refused. Around April 1997, the appellant betrothed Joane to which she accepted. In May 1997, they registered their intention to marry at the Office of the District Commissioner Mtwara. c On 27 August 1997 the respondent instituted a suit before Mikindani Primary Court claiming for TZS. 150 000 against the appellant as compensation for adultery (ugoni kwa sababuya kumshawishi mke wake na kufunga ndoa naye - according to the plaint). It was the D respondent ’ s contention that Joane was and is still his legal wife because the talakhe issued did not dissolve their marriage; and that the appellant ’ s act of living with her as “ his wife or lover ” entitled him to adultery damages. E The appellant denied to have made love with Joane or to have lived with her as his wife or lover or to have lived with her under any circumstances which would cast some doubt that he had ever committed adultery with her. He said since the respondent issued F her with a talak and did not “ kumrejea ” , and further that since they divided their matrimonial property and she was handed over to her guardian, he believed in good faith that she was free to marry. He proposed to her and she accepted. They registered their intention G to marry. But they did not get married nor did he have sexual intercourse with her, nor did he live with her in one room or one building. The trial court was satisfied with Nurdin ’ s evidence. It awarded him TZS. 150 000 as prayed. Dadi was not satisfied. He appealed H before Mtwara District Court where he lost. He then lodged this appeal before this court. His main grounds of appeal can be summarized as follow: (1) That he did not have sexual intercourse with the respondent ’ s wife. I

DADISAJDI KWANGAv. NURDIN AKACHAPA 401 (2) That there was no direct evidence that he ever had sexual intercourse A with the respondent ’ wife. (3) That he has never lived with the respondent ’ s wife in one room or one house. B (4) That at any rate Joane was no longer a legal wife of the respondent after issuing her with a talak which he did not “ kumrejea. ” (5) That after issuing her with a talak, followed by the division of their matrimonial property and the handing over to her guardian, she was C no longer his wife and was free to marry anybody. (6) That he merely betrothed Joane and registered their intention to marry, but he did not marry her. D (7) That even if it is assumed that Joane is still the legal wife of the respondent, yet a mere betrothal and registration of intention to marry cannot entitle the respondent to adultery damages, or in other words, those acts do not amount to adultery. (8) That he was not caught “ in Flagrante Delicto ” and that there was no witness who witnessed the alleged adultery nor was there any exhibit of whatever description He therefore, called upon this court to allow his appeal with costs. F The respondent called upon this court to dismiss this appeal in that it has no merits. He said the appellant is still living with his wife Joane in a house which Joane has rented. In short that is the gist of the matter. G There is no dispute that the respondent married Joane in 1972 under a Civil Marriage. Civil marriages are recognized by law under section 29 of the Law of Marriage Act 1971. There is no evidence that marriage has been legally dissolved. Granting of a talak is a h sign that the marriage has broken down. But it is not a dissolution of that marriage. Under the Law of Marriage Act 1971 it is only the courts of law which can dissolve a legal marriage. Therefore in law, in the absence of a divorce decree by a court of competent jurisdiction, i

402 TANZANIA LAW REPORTS [1999]T.L.R. A the marriage between the respondent and Joane is still in existence. Whoever trespasses with her commits adultery. The only crucial issue in this case is whether under the circumstances described in this case the tort of adultery was proved. There is no B direct evidence of anybody who witnessed the appellant committing adultery with the respondent ’ s wife. But adultery being a matter of fact can be established by either direct evidence or by circumstantial evidence. See Gai Ipenzule v. Sumi Magoye (1). c We have now to consider very carefully whether the relevant circumstances established to a degree of reasonable probability that the appellant had committed adultery with the respondent ’ s wife. I must admit that the trial court record (proceedings) was not very clear as to whether Joane and/or the appellant admitted to have been living together in one room or house. Joane is recorded to have said vaguely as follows: E (Akachapa) hakurudi tena mpaka mwezi wa 8 tarehe 8 akidai kuja kuzuru kaburi la mjukuu wake. Alikuja kutia vurugu ndani ya nyumba akidai mwenye nyumba atufukuze mimi na bwana wangu. Mwenye nyumba nilimtaarifu. Mimi nilikwenda polisi kutoa taarifa hizi. Ndipo huyu alirudi Newala [emphasis supplied], F The landlady PW2 Fatuma d/o Kazali did not help much. She simply said when asked by the first assessor “ mdaiwa nilikuwa namwona. ” The appellant admitted only the process of betrothal. But in his judgment G the trial magistrate wrote as follows: Mdaiwa Dadi Saidi Kwanga ndani ya maelezo yake amesema kwamba anaye mke wa mdai baada ya kumwacha yeye mwenyewe. Na SU2 Joan Reveta pia anakubali kabisa kwamba bwana aliye naye ni mdaiwa Dadi H Saidi Kwanga baada ya kuachwa na mume wake Nurdini Akachapa baada ya kufunga ndoa yao Mwaka 1972 ... Kwa hiyo mdai anayo haki ya kudai fidia ya ugoni kwa mdaiwa Dadi Saidi Kwanga. Kwa hiyo madai ya TZS. 150 000 mdai ameshinda na mdaiwa ameshindwa. Kwa hiyo mdaiwa alipe । TZS. 150 000 pamoja na ada TZS. 1 000

DADJ SAID! KWANGA v. NURDIN AKACHAPA 403 Those people were giving their evidence before him (i.e. trial magistrate). A It could be they really said so but he omitted to record the same in the proceedings. But this court cannot be guided by assumption. It must be guided by the evidence on record. Since there is nothing in the record (proceedings) showing that the appellant and the respondent ’ s wife admitted to have lived together either as mere lovers or as “ husband and wife ” , the court cannot safely hold that the overall circumstances suggested that the tort of adultery was committed or was established to a degree of reasonable c probability. It would appear the respondent was not serious enough with his claim. He could not call even a single witness who witnessed the appellant and the respondent ’ s wife living under adulterous circumstance. The respondent said he managed to find the appellant D living with Joane in their matrimonial home at PW2 Fatuma ’ s home where he (appellant) had moved with his property which included his clothes. But he never bothered to call a Ten Cell Leader of that area or anybody to witness. In fact the respondent appears tobe a e fun fellow. He said the appellant who was his friend and advisor from 1995 advised him to divorce his wife Joane. He obliged and issued a talak. Later when he wanted “ kumrejea ” the appellant advised him not to do so and that the final solution was to divide the property F they had earned jointly during the existence of their marriage. Again, he obliged and complied with. Now he is lamenting that the appellant is living with her in a house she has rented. If he has evidence on this, the doors of the courts are open. He can take the g necessary steps he deems fit. The last issue is that the respondent did not show any evidence that the intended marriage between the appellant and Joane was finally contracted. A mere registration of an intention to marry cannot per se be sufficient evidence of adultery. H It is upon the above reasons that I have been of the view that the circumstantial evidence as adduced by the respondent at the trial where he was the plaintiff, did not establish his claim to a degree of reasonable probability. In view of this I do hereby quash the decisions i

404 TANZANIA LAW REPORTS [1999]TI..R. A of the two courts below and set aside the orders made thereat. Appeal allowed with costs. SILAS SIMBA r. EDITOR OF MFANYAKAZI NEWSPAPER AND ANOTHER c COURT OR APPEAL OF TANZANIA AT DARES SALAAM (Ramadhani, Samatta and Lugakingira, JJ. A.) D CIVIL APPEAL No. 7 OF 1997 (From the High Court of Tanzania at Dar es Salaam, Bubeshi, J., dated 23 December 1996) Powers - Inherent powers - Court looking at records or receipt book to determine correct date - Whether proper. At the start of the hearing of the appeal against ex parte judgment of the High Court, F the advocate of the respondents raised a point in limine on behalf of the second respondent asking that the appeal be struck out because the second respondent was not served either the Notice of Appeal or the Record of Appeal. The advocate further urged, in the alternative, that the appeal be stood over until determination of a chamber G application filed in the High Court to set aside the ex parte judgment. On the question of service the appellant submitted that the second respondent had refused to accept service, and that the application for setting aside ex parte judgment was inserted in the file after the appeal had been filed. In order to determine the truth of the matter H the court examined the Exchequer Receipt book from which the court cashier had issued receipt number 0476645 to the advocate of the respondent section Held: (i) Exchequer Receipt Number 0476645 issued on 23 January 1997 to the advocate of the respondents was among many other receipts issued on that day, namely I Numbers 06706641,06706642 and 06706643, issued to various advocates for renewal