IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DODOMA DISTRICT REGISTRY)

AT DODOMA

DC. MATRIMONIAL APPEAL NO. 01 OF 2019

(Arising from District Court of Dodoma at Dodoma in Matrimonial Cause No. 4 of
2019)

ALBOGAST ALFRED NGOE.......................................... APPELLANT

VERSUS

JANEROSE JONATHAN CHEDEGO.............................. RESPONDENT

JUDGMENT

15/02/2022 & 05/04/2022

KAGOMBA, J

ALBOGAST ALFRED NGOE ("the appellant") and JANEROSE JONATHAN

CHEDEGO ("the respondent") had lived under same roof for about eight
(8) years to the extent that their neighbours presumed they were husband
and wife. They were also blessed with two issues of the union. After that
relatively long spell of living happily together, the respondent started
noticing changes in the character of her presumed husband. She alleged
to be beaten by him and that her man was no longer faithful as he was
dating other women. For these reasons she lodged her petition against
the appellant in the District Court of Dodoma, which was registered as
Matrimonial Cause No. 4 of 2019 where the petitioner (now "the
respondent") prayed for the following orders:-
a) Declaratory order that there is a presumption of marriage
between the parties.
b) The petitioner be granted custody of the children.
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 c) The respondent (now "the appellant") be ordered to provide
maintenance for the two issues to the tune of Tanzania shillings
seven hundred thousand (Tsh.700,000/=) per month.
d) The respondent (now "the appellant") be ordered to send the
children to school and pay for school fees and costs of medical
treatment
e) An order for a paripassu division of matrimonial properties.
f) Costs of the petition.
g) Any further’or other relief that the court may deem just and fit
to grant in the circumstances.

After hearing the petition, the District Court entered judgment for
the petitioner and decreed that:
i. The custody of the children be under the petitioner (the
respondent)
ii. Respondent ("the appellant") is entitled to visitation of
• * children.
iii. Respondent ("the appellant") to pay maintenance of Tsh.
300,000/= (three hundred thousand) monthly together with
school fees and medical expenses when need arises.
iv. The petitioner ("the respondent") is entitled to one house
located at Msalato Dodoma (the house she lives in) and two
motor vehicles (Toyota Noah T 421 DEA and Toyota Wish
T805DLL).
The rest of the properties as listed (by the petitioner) are
granted to the respondent.

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 Having so decided, the appellant was aggrieved and decided to file
this appeal which is premised on the following grounds;
1. That, the Trial Magistrate erred in law by entering judgment in
respondent's favour without considering the fact that the
pleadings which were filed were defective.

2. The Trial Magistrate erred in law and fact by deciding in favour of

the respondent while she failed to prove her case on balance of
probabilities.

3. The Trial Magistrate erred in law and fact by ordering division of

matrimonial properties without considering contribution of each
party, and the fact that there was no proof of existence of those
properties which were brought before the Court.

4. The Trial Magistrate erred in law and fact by holding custody of

the children to be placed under the respondent without
considering she has no sufficient income generated to maintain
them. And/

5. The Trial Magistrate erred in law and fact by holding the appellant
to provide maintenance of the children Ths. 300,000/= which is
excessive without determining income of each party.
* *... I i ♦ • ... .. . * . •

Pursuant to the order of this Court dated 18th November, 2021 made
upon prayer of Mr. Sosthenes Peter Mselingwa, learned advocate for the
appellant, and which was not objected by Mr. Lingolopa, learned advocate

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for the respondent, the hearing of the appeal proceeded by way of written
submission. As far as convenient, we shall consider each ground of appeal
as per the submissions made to the Court.

Submitting on the first ground of appeal, Mr. Mselingwa for the

appellant argued that in the filed petition of the respondent, there are
discrepancies that amounts to irregularity which are not curable before
the’eyes of the law, as following: -
i. The deed poll of the respondent to change the name of ROSE NGOE
which she was using during the lifetime of her marriage with the
appellant, to JANEROSE JONATHAN CHEDEGO, signed on 21/06/2018
before Maria Ntui, advocate lacks legality to stand. The same couldn't
also warrant the respondent while filing petition to use the changed
name in the said petition since it was not registered as compulsorily
required by the law. Hence, in the eyes of the law, the respondent
who was married to the appellant is a different person to who is the
respondent in this case.

Mr. Mselingwa cited to this effect the provision of Section 8(l)(a) and
(b) of the Registration of Documents Act, [Cap 117 R.E 2002].
According to ’ him the cited provision clearly stipulates that the
document should have’been registered and’necessary fees should
have been paid, which was never the case. For this reason, Mr.
Mselingwa was of the view that the pleadings were defective in the
eyes of the law for being filed with a stranger to the suit.

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ii. As the parties lived under presumption of marriage since 2008 to 2019
without as legal marriage, it was an obvious requirement of the law
that before filing petition for divorce or separation, the petitioner must
apply to the Court to order that there was a presumption of marriage,
by filing chamber summons supported by affidavit. To this end the
learned advocate, quoted from the impugned judgment of the District
Court where amongst the prayers of the petitioner was "for
declaratory order that there is a presumption of marriage between
the parties", as appearing on page 1 of the said judgment.'

Based on the above cited irregularities the learned advocate invited

this Court to the law of marriage (Matrimonial Proceedings) Rules GN No.
246 of 19’97’Of which Rule 32(1.) and (2) provides as follows:
/?/?/£= 32(1) -Every application for maintenance (whether for
maintenance of a party to a marriage of children of
marriage) or for the custody of the children of the marriage
. • , ■. shall be by way of chamber summons supported by
affidavit"

Rule 32(2) -where'any matrimonial proceedings is not by

the Act or these Rules required to be instituted by a
petition, the proceedings shall be instituted by way of
chamber summons supported by an affidavit" ■

Mr. Mselingwa therefore' argued that based on the petitioner's

quoted prayer and the cited provisions of the law above, the respondent
wrongly filed the petition before applying for an order of presumption of
marriage. He argued -furthermore that even the petition did not state
clearly the subject matter.

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 Mr. Mselingwa further cited another irregularity as lack of a
certificate from Reconciliatory Board which, he said, is mandatorily
required under Section 106 (2) of the Law of Marriage Act, [Cap 29 R.E
2019]. He concluded his submission on this first ground of appeal by
asserting that the same suffices to allow the appeal and quash the
proceedings and judgment of the District Court.
For reasons which shall be revealed shortly in due course, the Court
shall not reproduce and deliberate on the appellant's submissions on the
second, third, fourth and fifth grounds of appeal. There are pertinent
matters raised in this first ground of appeal, which as the advocate for
the appellant has submitted, may suffice to dispose of the appeal.
* ' - » • /*f . .1 ’ ,4

‘"Responding to the issues raised in the first ground of appeal, Mr.

John J. Lmgopola, advocate for the respondent submitted as follows: •

Firstly, on the legality of the Deed Poll, he said the same was
tendered during trial as Exhibit PE 8 and was admitted without objection
from the appellant. “

Secondly, the Deed Poll was written to prove that the person stated
in receipts is the one and same person as the one who filed the petition.
He clarified that the respondent had always been Janerose Jonathan
Chedego since her childhood; that the name of Rose Ngoe was used in
receipts when she was buying building’ materials, prayed the ground of
appeal be disregarded by this Court. For this reasons Mr. Lingopola

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 The appellant has attempted to tell this Court that Section 8(l)(a)
and (b) of the Registration of Documents [Cap 117 R.E 2002] (now R.E
2019) "clearly stipulates that, the document that a person has interests
needs be registered like Deed Poll and not otherwise". He submitted that
since the Deed Poll was not registered and the required fees were not
paid to warrant the respondent to change the name, the pleadings were
defective.

With respect, the Court differs with' the appellant's advocate

submission. Section 8 (1) (a) and (b) provides for compulsory registration
of the following documents, which in our considered view, Deed Poll is
not among them. Tne cited provision is crafted as follows:
"8. Documents of which registration is compulsory
(1) The registration of the following documents if executed
made after the commencement of this Act is compulsory
(a) non-testamentary documents which
acknowledge the receipt or payment of any
consideration cn account of the creation, declaration,
assignment, limitation, or extinction ofany such right, title,
or interest; • . • ;
(b) non-testamentary documents which
acknowledge the receipt or payment of any consideration
on account of doe creation, declaration, assignment,
limitation, or extinction of any such right, title, or interest.
• • * • • *

The above cited provision, makes it compulsory the registration of

such non-testamentary document "which acknowledge the receipt or
payment of any consideration", and such receipt or payment should be
in respect of creation, declaration, assignment, limitation or extinction
of such right, title or interest. The words "acknowledging receipt or
payment of any consideration" are very important to exist for a

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document to be compulsorily registrable. The Deed Poll for merely
changing the respondent's name wouldn't be said to acknowledge
receipt or payment of any consideration. This Court, therefore holds
that, a Deed Poll is not compulsorily registrable under the Registration
of documents Act, [Cap 117 RE 2019].

We also concur with the learned advocate for the respondent on

this limb of the first ground of appeal, that the appellant ought to have
raised the objection to the admission of the Deed Poll at the right time.
The right was the time when the document was being tendered as
evidence during trial. Since we have hold that registration of-the said
Deed Poll was not compulsory, there is no point on of law to challenge
legalityof the said Deep Poll that can be raised at this stage.

On the second limb of the first ground of appeal, we find merit in

the argument raised by the appellant's advocate that procedure
adopted by the respondent to file a petition for declaratory order that
there is presumption of marriage between the parties and proceed in
the same petition to seek orders for custody of the ’ children,
maintenance for the children, and division'of matrimonial properties
defied the law, as we shall demonstrate below.

The respondent when she petitioned to the District Court she used
the said petition to seek for the following orders, among others:
a) Declaratory ‘ order that there is a presumption of marriage
between the parties.
b) That the petitioner be granted custody of the children. ‘

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 c) That the respondent be ordered to provide maintenance for the
two issues to the tune of Tanzania shillings 700,000/=
d) That, the respondent be ordered to send the children to school,
e) For a paripassu division of matrimonial properties.
f) Cost of the petition
g) Any further or other relief the Court may deem just and fact to
grant.

According to the typed judgment of the trial Court, on page 12, the
advocate for the appellant is on record submitting as a respondent's
advocate that the petitioner wrongly filed the petition, instead of filing
an application for maintenance of herself and children. He also
enjoined the trial' Court to consider the legal provision under Section
160 (1) and (2) of the Law of Marriage Act, Cap 29 R.E 2002 to the
effect that where there is a dispute between the parties, one can make
an application for custody of children and maintenance. He went
further to refer to'the procedure of how such an application can be
made under Rule 32(1)(2) of the Law of Marriage (Matrimonial
Proceedings) Rules, GN 246 of 1997 which provides that the same shall
be by way of Chamber Summons and affidavit.

1 have considered the Law of Marriage Act, and the Rules cited
above by the learned appellant counsel and I am of a settled mind that
the petition was wrongly filed. Section 160 (1) of the Law of Marriage
Act, [Cap 29 R. E 2019] provides for presumption of marriage where
two parties 'have lived together under one roof to the extent of a
rebutted presumption to be made that they were husband and wife.

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 According to the testimony of DW1, the appellant, the presumption
was rebutted. He did not recognize the respondent as his wife. He
said the respondent was his co-parent. Under such circumstances the
trial Court should have been guided by Section 160(2) of Law of
Marriage Act as to what relief the then petitioner had under the law.
Section 160(2) provides:
"(2) when a man and woman have lived together in circumstances which
give rise to a presumption provided for in. subsection. (1) and such
presumption is rebutted in any Court of competent jurisdiction, the
woman shall be entitled to apply for maintenance for herself and for
every child of the union on satisfying the Court that she and the man did
in fact live together as husband and wife for two years or more, and the
Court shall have jurisdiction to make order or orders for maintenance
and, upon application made therefor either by the woman or the
man, to grant such other 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 separation, as the Court may think fit, and
the provisions- of this Act which regulate and apply to proceeding for and
orders of maintenance and other reliefs under this section". (Emphasis
added)

In interpreting the above provision, the Court of Appeal.in GABRIEL

JOHN MUSA V. VOSTERKIMATI/ Ci Vi t Appeal No.344 of 2019 held:
"Following the above provisions, it is dear that the Court is empowered
to make orders for division ofmatrimonial assets subsequent to granting
a decree ofseparation or divorce. Therefore, in the case at hand, it was
improper for the trial Court to frame and determine only two issues of
• ■ • ■■■. . .. , • • ■ ■

(i) division of matrimonial property and (ii) the reliefs white leaving a
apart a substantive issue of whether the presumption of
marriage between the parties was rebuttable or not and
. whether their relationship was irreparebly broken dqwn or
otherwise". (Emphasis added); (see page 11 of the typed judgment of
’•' the Court’ of Appeal)

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 It is acknowledged that the trial Court framed, almost properly the
following issue for determination:

"1. Whether the parties lived under presumption of marriage,

2. Whether there were properties acquired jointly
3. If issue number 2 is answered in affirmative, what is the
extent of contribution made by each party.
4. Whether the petitioner is entitled to the custody of the
' < children."
5. What reliefs are the parties entitled".

The trial Court went ahead to determine the first issue in affirmative
that the parties lived under presumption of marriage. It is not clear
whether by so holding the-trial Court also addressed the issue whether
the presumption of marriage between the parties was rebuttable or not.
It it is to be assumed that the trial Court intended to hold that the
presumption of marriage was not1 rebutted, it should have not ended
there. The trial Court should have declared that, according to the
evidence adduced, the parties were in a legal marriage. It is this
declaration which give rise to granting of decree of separation or divorce,
if there were findings that the same was irreparably broken down.

This issue of status of marriage was not addressed by the trial Court.
It is not one of the issues framed nor was it decided upon despite the
parties pleading on it.

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 The appellant's advocate submitted during trial that the petitioner
failed totally to prove the reasons why she is not ready to continue living
and staying with the respondent (now "the appellant"). He argued that
one cannot just walk in marriage and state that she is fed with the of
relationship. I agree with the appellant's submission.

Again, in GABRIEL JOHN MUSA V\ VOSTER KIMATI (Supra) the

Court of Appeal stated:
"At any rate, even if both parties'pleadings were not disputing that they
. . . were cohabiting as husband and wife, the trial Court was still required
to satisfy itself if the said presumption was rebuttable or not, grant
decree ofseearation er divorce then award those subsecdient reliefs.
(Emphasis added) . ...

Similar position as above was discussed in RICHARD MAJENGA

VS SPECIOZA SYLVESTER, CAT Civil Appeal No. 208 of 2018,

The above the work flow should have been observed by the. trial
Court in this case. No step should be jumped. Jn this case, the'trial Court
jumped to divide properties of the presumed marriage without granting
of divorce or separation. In my view this was wrong, and fatal to the
proceedings. Having observed such an irregularity in the proceedings of
the trial Court, I find it incumbent upon this Court to invoke its revisionary
powers under the Magistrates Court Act, Cap in R. E 2019 to nullify the
proceedings of the trial Court and set aside its judgment.

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 Since the determination of the first ground suffices to dispose of the
appeal, the Court finds merit in the appeal and the same is hereby
allowed. The proceedings before the trial Court were vitiated by that
serious procedural omission of not considering status of the presumed
marriage.

The proceedings before the trial Court were also vitiated by the fact
that the petition was packed as an omnibus with prayers which were, by
clear rules, supposed to be brought up by chamber summons supported
by affidavit. Such*prayers were for maintenance and custody of children.

Section 160(2) of the Law of Marriage Act provides for maintenance

and such other reliefs as custody of children for which the Court shall have
jurisdiction to grant upon application. These in my considered view were
to be applied for and not petitioned for. The two procedures are not one
and same. • ' J

In the final analysis short the appeal is allowed. Since there are
pertinent rights of the parties to be determined by observing the law, the
Court'orders retrial of this matter in accordance with the law. No order
as to costs.
It is so ordered.

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