HEMED S TAMIM v RENATA MASHAYO 1994 TLR 197 (CA)

 

HEMED S TAMIM v RENATA MASHAYO 1994 TLR 197 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Omar JJA, Mnzavas JJA and Mfalila JJA G

CIVIL APPEAL NO. 44 OF 1993

30 September, 1994

(Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam, Bahati, J)

H

Flynote

Family Law - Presumption of marriage - Presumption rebutted after eight years of

cohabitation - Whether parties have any rights under the Law of Marriage Act 1971 I

1994 TLR p198

-Headnote

A The appellant's third appeal follows from dissatisfaction with the decisions of the

Primary, District and High Courts in which he had sought divorce and division of

matrimonial assets in the form of a dwelling house which had been acquired in the

course of cohabiting with the respondent for a period of eight years. In the Primary

Court the respondent's claim was established and reliefs granted namely B

dissolution of the marriage and equal division of the dwelling house. But the

presumption of marriage was found to have been rebutted by the District and High

Courts. On further appeal to the Court of Appeal:

Held:

C (i) Where the parties have lived together as husband and wife in the

course of which they acquire a house, despite the rebuttal of the presumption of

marriage as provided for under s 160(1) of the Law of Marriage Act 1971, the courts

have the power under s 160(2) of the Act to make consequential orders as in the

dissolution of marriage or separation and division of matrimonial property acquired

by the parties during their relationship is one such order;

D (ii) Having found that the parties were not duly married, the decision of

the lower court regarding the dissolution of marriage is void.

Case Information

Appeal dismissed.

No cases referred to.

[zJDz]Judgment

E Mfalila, JA, delivered the following considered judgment of the Court:

This is a third appeal from the decision of the Primary Court of Ilabo district at F

Bwquauni. In that court, the present respondent Renato Mashayo sued the appellant

for divorce and division of assets in the form of a dwelling house acquired while they

were cohabiting. The Primary Court found the respondent's claim established and

granted the reliefs sought namely dissolution of marriage and equal division of the

dwelling house. The appellant successfully appealed to G the district court which

held that as the appellant had rebutted the presumption that they were duly married,

there was no marriage to dissolve and that therefore the question of dividing

matrimonial assets acquired during marriage did not arise. The respondent was

therefore as it were condemned to get out of the eight year H relationship with the

appellant empty handed. She fought back and successfully appealed to the High Court

where Bahati,J held that although the presumption under s 160(1) of the Law of

Marriage Act had been rebutted, the respondent still had some residual rights to

property under s 160(2) of the Act which empowers the court, upon rebuttal under ss

(1) of the same and upon the woman satisfying the court (as she did in this case) that

she I

1994 TLR p199

MFALILA JA

and the man did in fact live together as husband and wife for two years or more, A

`to make order or orders for maintenance and upon application made

therefore either by the woman or the man, grant such reliefs including custody of

children as it has jurisdiction under this Act to make or grant upon or subsequent to

the making of an order for the dissolution of a marriage or an order of separation as

the court may think fit, and the provisions of this Act B which regulate and apply to

proceedings for and orders of maintenance and other reliefs under this section.' C

The learned judge then allowed the appeal, set aside the judgment and orders of the

district court and restored those of the Primary Court. The appellant Hemed S Tamin

applied for leave to appeal to this court arguing that there was an important point of

law involved which cried for determination by this court. The Judge (Kyando, J) who

heard this application and granted it, certified the following point of law for

determination by this court: D

`Whether the respondent was entitled in law to a share of assets in the

circumstances of this case.' E

We think the law on this point is quite clear under s 160(2) of the Law of Marriage

Act 1971 on which Bahati, J based his decision. It was held by all the courts that on

the evidence, the appellant and the respondent had lived as husband and wife for

eight years in the course of which they acquired the house at Kiwalani. Both the F

District court and the High Court found that the presumption under s 160(1) had

been rebutted but the High Court held correctly that following this rebuttal the court

had the power and jurisdiction to make the same consequential orders as in the

dissolution of marriage or separation. The order for division of matrimonial assets G

is one such order, consequently the learned judge ordered equal division of the house

at Kiwalani which was acquired by the parties during or in the course of their

relationship. However, having found that the parties were not duly married, the

learned judge should not have ordered the restoration of the Primary Court order H

regarding the dissolution of marriage, for quite obviously there was no marriage to

dissolve. Consequently the order of dissolution of marriage upheld by the High Court

is set aside.

Apart from this variation in the High Court judgment, the appeal is otherwise

dismissed with costs. I

1994 TLR p200

A