abdul juma

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MATRIMONIAL APPEAL NO.5161 OF 2024 (Arising from Matrimonial Appeal No. 01 of 2023 of the District Gourt of Kalambo at Matai) ABDUL s/o JUMA ............... ..........APPELLANT

VERSUS KESIA d/0 MWAMBUGI.......... RESPONDENT Date of Last Order: 21/08/2024 Date of Judgement: 12/09/2024

JUDGEMENT NANGELA, J.: This is a second appeal. It arises from the appellate decision of the District Court of Kalambo at Matai, Rukwa region. The first appeal originated from Matrimonial Cause No. 6 of 2023, which was filed, heard, and determined by the Primary Court of Kalambo (Hon. Nyangala RM). In its decision handed down on the 17th of August 2023, the trial court dissolved the parties7 marriage, granted custody of two children to the respondent, and made other subsequent orders to the effect that all matrimonial assets be divided equally (50/50), and the appellant herein be obligated to provide TZS 50,000/- to the respondent herein as maintenance of the two children. The appellant was unsatisfied and appealed to the District Court. The Court (Temu, SRM) heard the first appeal. He found Page 1 of 6 it to lack merits and, consequently, dismissed it, making no orders as to costs. Aggrieved yet by that decision, the appellant has approached this court armed with three grounds of appeal, to wit, that: 1. The court erred in law and in fact when it decided the matter in favour of the respondent and failed to consider the evidence adduced by the 3rd witness of the appellant.

2. That, the court erred in law and in fact when dealing with the exhibit produced by the 3rd Witness of the appellant 3. That the court erred in law and in fact for attaching a property that does not belong to either of the parties to the dispute. This court heard the parties on the 21st of August 2024. In his submission, the appellant reiterated his grounds of appeal, arguing that the courts below failed to consider the evidence on record, in particular the testimonies of the 1st and 3rd witnesses who testified in favour of the appellant. He contended that the exhibits they tendered included documents, which showed that the respondent was facing a criminal case between herself and a co-wife. He also contended that the courts below erred because they did not consider the documents that showed who was the true owner of the house, which was counted in as a matrimonial property owned by the parties. He submitted that the respondent did not produce any document to show that she owned the property. He contended Page 2 of 6 that the house in question was hot built when their marriage was existing, According to the appellant it was her mother who built the house, which was counted as part of the matrimonial property. As regards the third ground, the appellant argued that the property so divided by the order of the courts below were properties never owned by the parties during the

existence of their marriage relationship. He contended that there is no such property in the first place, and the respondent did take all that she needed when the two parted ways. On her part, the respondent submitted that the properties divided by the order of the trial court were matrimonial and the house was a joint effort of the parties during the time of their marriage relationship. She submitted that earlier the two used to live with the appellant's parents, but later the two shifted and hired a house where they lived for three years before buying their own plot and erected a house thereon. She told the court that at the time the appellant was working with certain Chinese while she was running a chips-making-kiosk business. She submitted, therefore, that the trial court was right in its decision confirmed by the District Court since the respondent lived with the appellant for nine years. She maintained that in all those years they acquired properties, including the house at Kateka "B" Area, which the appellant contends is not part of the matrimonial properties that were subject to division among the parties. She submitted that even the name that was recorded on Pag e 3 of 6 the 'Mtaa Papers' to identify the properties in the area was not of his mother but of the appellant. She maintained therefore that the lower courts were right. In a brief rejoinder, the appellant

adamantly stuck to his position and earlier submission, arguing that the respondent was not telling the truth. He rejoined that the house belonged to his mother. I have dispassionately considered the grounds of appeal, the reply to the grounds of appeal, the record of the lower courts, and the submissions made by the parties herein. The issue for my consideration is whether this appeal has any merits. The gist of this appeal is a house in the Kateka "B" area, which the trial court, upon receiving and analyzing the evidence before it, came to the conclusion that it was a matrimonial property. In his submission, the appellant is faulting both the trial court and the first appellate court for not considering the evidence of SU-3. The question to ask is did the trial court fail to consider such testimony and the Exh. SU-3? I have gone through the record of the trial court, and I find that, at page 11 of the judgement of the trial court, the trial court did examine and evaluate the exhibit "SU-3" and made a finding that the exhibit was unreliable and procured without adhering to the law, in particular sections 8 and 60 of the Village Land Act, Cap.

114. The trial court thereby made a finding that the house, which is at Kateka "B," was a matrimonial property of the parties herein. Page 4 of 6 In the first ground of appeal, the appellant herein has contended that the trial court and the first appellate court failed to consider the testimony of SU-3. The testimony of SU-3 was very brief to the effect that he built a house in 2013 for SU-2. But looking at that testimony as per the record of the trial court, nothing is stated regarding where the house he built was built. As I pointed out earlier hereabove, the trial court made a finding that "exhibit SU-3," which was a sale agreement in respect of a plot of land, contained a contradictory report as the plot that SU-2 claimed to belong to her was in two different hamlets, suggesting that the house that SU-3 claimed to have helped to construct was a different house. The exhibit was thus unreliable. In my view, I think such a finding is justified, as whereas the respondent claims that they built a house at Kateka "B" Village, Exh. SU-3 is about a plot of land in 'Mhame' hamlet, which is far from 'Katandala' hamlet, and in between the two hamlets there is 'Mitende hamlet' all in Kateka Village. It is on that ground that the trial court made a finding that the possibility was that the house claimed to belong to SU-2 was a different one from the one that the respondent claimed was a

matrimonial asset of the parties herein. In the absence of contrary evidence to the facts, I see no reason why I should disturb that finding of fact made by the trial court that had the opportunity of assessing the credibility and veracity of the witnesses. In the circumstances of this appeal, Page 5 of 6 the three grounds raised by the appellant have no merit. The trial court did consider the evidence laid before it as I pointed out earlier above, including the testimony of SU-3 and Exh. SU-3 and concluded that the house at Kateka "B" was a matrimonial property. In view of that, the first appellate court was right to dismiss the appeal that was filed by the appellant herein. In light of all that, this appeal stands dismissed in its entirety. However, considering the circumstances of this matter, I make no orders as to costs. Parties are therefore to bear their own costs. It is so ordered. DATED AT SUMBAWANGA ON THIS 12th DAY OF SEPTEMBER 2024

DEO JOHN NANGELA

JUDGE Right to appeal is hereby explained. Page 6 of 6