Frank Lionel Marealle v Fatuma Mohamed 1996 TLR 342 (HC)

FRANK LIONEL MAREALLE v FATUMA MOHAMED 1996 TLR 342 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

CIVIL APPEAL NO 77A OF 1996

9 July 1996

Flynote

Family law - Matrimonial property - Division of - Conversion of marriage - Capacity to marry - E Leave to appeal granted to determine whether there had been a conversion and on the division in terms of s 11 of the Marriage Act.

-Headnote

The appellant applied for leave to appeal to the Court of Appeal against a judgment of the Court and submitted that there were two issues which needed to be determined, viz whether there had been a conversion of the marriage, and, secondly, on the division of the matrimonial assets. It was submitted that ss 160 and 11 of the Law of Marriage Act had to go hand in hand and there had to be capacity to marry before presumption of marriage could hold.

Held:

(i) After deliberation on the issues, leave ought to be granted to enable the Court of Appeal to determine the points of law raised.

Case Information

Case referred to:

H 1. Hemed S Tamino v Renata Mashavo Civil Appeal No 44 of 1993 (unreported)

Mr Muganda for the applicant.

Mr Magafu for the respondent.

[zJDz]Judgment

Bubeshi, J: Mr Muganda, learned counsel has applied on behalf of his client for leave to appeal to the Court of Appeal in terms of s 5(1)(c) of the Appellate A Jurisdiction Act 1979, against the judgment of this court delivered on 8 January 1997. Mr Muganda has submitted that there are two points for determination by the Court of Appeal, namely: B `whether there was a conversion of marriage in Act, 1971 and secondly on the division terms of s 11 of the Law of Marriage Act of matrimonial assets as endorsed by this court.' Mr Muganda's view or interpretation of the law is that in circumstances of this case there C was no conversion of marriage and that his client had no capacity to marry under s 160. Hence the division of matrimonial assets ordered was erroneous. Mr Magafu on the other hand has resisted the application for leave. He submitted that the decision of the case was based on s 160(1) and (2) in the case of Hemed S Tamino D v Renata Mashavo (1).  

Again he submitted that on division of matrimonial assets, the Court of Appeal dealt with that point in the case of Bi Hawa Mohamed. Mr Muganda in his reply said that ss 160 and 11 of the Law of Marriage must go hand in E hand. There must be capacity to marry before presumption of marriage can hold. Mr Muganda was in essence saying that since there was no conversion of marriage to polygamous marriage, the applicant could not be covered under s 160(1) and (2). He submitted further that the Hemed case cited above by Mr Magafu was distinguishable F from the facts. I have had time to deliberate on the issues posed by this appeal and have come to the conclusion that leave be granted to enable the Court of Appeal to determine the points of law raised, namely: G Whether on the facts of this case the respondent was entitled to a share of the matrimonial assets. The facts of the Hemed case (supra) would appear to be distinguishable. Application granted.

1996 TLR p344

A