Hoka Mbofu v Pastory Mwijage 1983 TLR 286 (HC)

HOKA MBOFU v PASTORY MWIJAGE 1983 TLR 286 (HC)

Court High Court of Tanzania - Mwanza

Judge Mushi J

November 30, 1983

CIVIL APPEAL 94 OF 1983 D

Flynote

Family Law - Concubinage - Concubinage for 16 years - Whether s. 160 of the Law of Marriage Act, 1971 applicable where there is no allegation of presumption of marriage.

Customary Law - Concubinage - Division of property upon termination of concubinage - E Rule 93 and 94 of the Customary Law (Declaration) Order G.N. No. 279 of 1963.

-Headnote

The appellant was appealing against the decision of the District Court of Magu which reversed the Nyaluhande Primary Court decision which awarded the appellant Shs. 5,900/= being her share of property acquired during her concubinage for 16 years with the Respondent. The District court purported to reverse the decision of the Primary Court on account that there could be no division of property between the parties if their presumed marriage had not been dissolved. The parties had not alleged presumption of marriage, hence this appeal.

Held: 

(i) Where there is no allegation of presumption of marriage, section 160 of the Law of Marriage Act, 1971 cannot be invoked merely on account of concubinage association;

(ii) rule 93 of the Customary Law (Declaration) Order, G.N. No. 279/1963 is applicable in the division of property acquired during concubinage association.

Case Information

Order accordingly.

No case referred to.

[zJDz]Judgment

Mushi, J.: The appellant, Hoka Mbofu, filed a suit in the Primary Court claiming half of A property earned or acquired during the period of 16 years in which she lived with the respondent. The Primary Court awarded the appellant Shs. 5,900/= as her share. The respondent, Pastory Mwijage, appealed to the District Court. The learned Appeal Magistrate scrutinized the evidence and found that since the parties lived together in B concubinage for 16 years, the provision of section 160 of Marriage Act No. 1971 applied and that on the application of that provision the parties were presumed husband and wife. The learned magistrate went to conclude that as there had been no divorce, the Primary Court could not divide the property acquired during that period. The court quashed the proceedings and declared that the parties were husband and wife and it was upon an aggrieved party to file a suit for separation or divorce. The appellant was dissatisfied with that decision and she has appealed to this court.

Before this court, the appellant stated that she did not agree with the court's decision that D she was a wife of the respondent since she was never married to him and thus she cannot file any divorce. The respondent agreed that they did not perform any ceremony of marriage although they lived together for 16 years or so.

It is an accepted fact that the parties in this case were not married by any known law of E Tanzania. There was no customary, Civil or religious marriage. The parties only lived in concubinage. If the association is to be given the status of constituting marriage this can only be done by invoking section 160 (1) of the Law of Marriage Act No. 5 of the 1971 which reads:

"Where it is proved that a man and a woman have lived together for two years or upwards, in such circumstances as to have acquired the reputation of being husband and wife, there shall be a rebuttable resumption that they were fully married". G

Since there were allegations that the parties had lived together for about 16 years, the learned appeal magistrate felt that the case was fully covered by section 160(1) of the Marriage Act quoted above. But was it necessary to invoke the Marriage Act provisions? I am of the settled view that it was not necessary to apply the above provision. Right from the institution of the claim, the appellant has not asserted that she was ever married by the respondent. She has maintained that her association with the respondent was purely that of concubinage. But she says that during the concubinage association, she and the respondent acquired some property/money, and that since I respondent has decided to terminate that association, the appellant has no objection except that she should get what they acquired together. In her evidence in the original court and her statement before this court, she has not based her claim on her association having acquired the status of a wife. Similarly the respondent's evidence in the Primary Court did not assert that the appellant was his wife. The respondent merely stated how it came about that the appellant came to stay with him. In fact from careful scrutiny of the respondent's statement, it would appear that although the parties were living under one roof, they were each leading an independent life. For example the appellant lived with the children of her brother against the respondent's wish and also according to the respondent the appellant had a different C plot which she cultivated separately with the help of the children of her brother. In this regard, even if section 160(1) of the Act was to be invoked, it would have been necessary to look more into the lives of the parties rather than the mere fact that they lived under one roof. The respondent has not claimed that the appellant is his wife, in D which case the appellant's claim could not be entertained unless there was divorce or separation. The whole claim has been made outside the Marriage Act and without requiring its assistance in order to be legally blessed. The claim is maintainable under customary law because there is no mention of section 160(1) of the Marriage Act in the E whole trial. Rule 93 and 94 of Local Customary Law (Declaration) order of Government Notice Number 279 of 1963 are applicable in this case. Rule 93 authorises the property acquired during concubinage association to be divided between the parties if they decide to part company and section 94 sets out the manner in which the property shall be divided.

For the above reasons, this appeal is allowed. The district court decision is set aside and the Primary Court decision is restored. As regards the amount awarded, there seems to be sufficient evidence to support the claim and the amount is reasonable and the same remains undisturbed. Each party to bear her/his costs in this court. This judgment to be certified to the original court for reading to the parties.

Order accordingly.

1983 TLR p289

A