PC Civil Appeal 19 of 2022 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA PC. CIVIL APPEAL NO. 19 OF 2022 (Arising from Matrimonial Appeal No. 01 of2022 in the District Court of Miele and Originated from Matrimonial Case No. 16 of2021 in the Primary Court of Inyonga) ALEXIUS KAGUNZE......................................................... I........ APPELLANT VERSUS SIAH LWITIKO....................................................................... RESPONDENT JUDGMENT 30h August & 3Cfh September, 2024 MRISHA, J. This is an appeal against the Judgment and Decree of the District Court of Miele at Miele in Matrimonial Appeal No. 01 of 2022 pronounced on 31st October, 2022. The appeal originates from a complaint instituted by the respondent (the then petitioner) against the appellant (the then respondent) at Inyonga Primary Court in Matrimonial Cause No 16 of i respondent) at Inyonga Primary Court in Matrimonial Cause No 16 of 2021 seeking to be granted a divorce decree, division of matrimonial properties, custody and maintenance of their three legal issues. The primary court (trial court) ruled in favour of the respondent. Disgruntled with the said decision, the appellant successfully appealed to the District Court of Miele (first appellate court) in Matrimonial Appeal No. 01 of 2022 but was dissatisfied with the outcomes of the first appellate court decision, hence, decided to prefer the instant appeal to the High Court. To better appreciate the factual underlying of this appeal; the background although in brief is as follows: The appellant and respondent were married on 2011 and blessed with three issues namely Prestigious Alexius, Punctilious Alexius and Prococious Alexius. The parties had a joyful marriage, both were civil servants. According to the respondent, at around 2017, the appellant become cruel, drunkard and adulterous. While on the other side, the appellant claims the respondent became adulterous and he caught her in flagrante with another man. 2 According to the respondent, she and the appellant acquired a plot situated at Kalovya Hamlet and constructed three houses in the same plot. She further contended that she had constructed two houses located at Arusha on 2013; also they owned one house located at Chato, one house situated at Kagera, Bihalamulo District. Still, she contended that they constructed two houses for the appellant's parent; one for her mother in-law and one house for father in-law all situated at Chato. She listed four plots, two located at Nara and two located at Chamwino, Dodoma. She further contended that they jointly owned two plots in Inyonga and one plot located at Muungano, Chato. She argued that the list was not exhausted; the respondent mentioned two farms located at Inyonga, one 24 acres located at Uzega village and 10 acres located at Masigo village, they owned another 20 acres at Chato and two frames at Stand Mpya, Inyonga and one motor vehicle with registration number T. 489 DNH. The said claims were refuted by the appellant who argued that some of the properties were acquired jointly and others alone. He argued that 3 the respondent left to register some assets as matrimonial assets. Despite of denying to own two houses located at Longido, Arusha, and one house located at Biharamulo, the appellant denied to own plots in Dodoma, Biharamulo and two frames at Inyonga. He asserted that the farm which was claimed by the respondent as one of the matrimonial properties, was owned by him. Having heard both parties' submissions, I have observed that the first appellate Court partly allowed the appeal to the extent that two houses purported to be located at Longido could not be proved as to their existence, thus not subject to division, the respondent was granted a house and a farm of 26 acres located at Izenga hamlet in Utende village and amount of Tshs. 12,000,000/= to be paid by the appellant as her contribution in the acquisition of motor vehicle with registration number T 160 DKG Toyota Rav4. The appellant was granted a house and farm of 20 acres located at Masigo village. In relation to custody, it was ordered that Precocious Alexius remain under custody of the respondent until on 16th September, 2023, after attaining age of seven, then the child will be placed under custody of appellant. 4 The decision of the first appellate court again did not amuse the appellant. As such, he knocked the doors of this court. This time the appellant is armed with three grounds of appeal namely: 1. That, the learned Magistrate erred in law and facts by upholding the finding of the trial Court on the value of the Motor vehicle with registration number T 160 DKG Toyota Rav4 Old model without considering Appellant's evidence and without assigning reasons for disbelieving or rejecting the evidence of the Appellant which was heavier than that of the Respondent on the subject matter against the principles of naturaljustice. 2. That, the learned Magistrate erred in law and facts when he ordered the custody of the minor child one PRECOCIOUS ALEXIUS to the Respondent until lffh day of September 2023 against the best interests of the said child. 3. That, the first Appellate Court erred in law and facts when it failed to consider the Appellant's complaint over a house in Inyonga at Uwanja wa ndege hamlet and a motor vehicle with registration No. T. 523 DSL which were all acquired by joint efforts of the 5 parties which by double standard the trial Court excluded them from an order of division. Wherefore, the appellant prays to this court to orders that the judgment of District Court be quashed and set aside, custody of the child be placed to the appellant and declare the house located at Uwanja wa Ndege hamlet in Inyonga and the motor vehicle with registration No. T 523 DSL Toyota 1ST are matrimonial properties. When the matter was called on for hearing, the appellant was represented by Mr. Kelvin Kayanga, learned advocate while the respondent enjoyed the legal services of Mr. Hassan Gunda, learned advocate. Before the learned advocate for appellant started to make his submission, he prayed to this court to withdraw ground two of appeal and proceed with grounds one and three. The prayer was not objected by the respondent counsel. Thus, the second ground of appeal was marked withdrawn. In submitting the first ground of appeal Mr. Kelvin Kayaga, learned counsel for the appellant submitted that the appellant has sufficient evidence to prove the worth/price of a motor vehicle. To support his 6 submission, he referred at page 52 of the typed proceedings of the trial court which reveal that the price of the motor vehicle is Tshs. 9,073,600/= and not Tshs. 27,000,000/= as indicated at page 33 of the said proceedings. He also submitted that no evidence was shown by the respondent to prove the value of Tshs. 27,000,000/= of the motor vehicle. He further submitted, despite the fact that the first appellate court differed with the trial court on value of said motor vehicle, but it proceeded to award the respondent Tshs. 12,000,000/= of the same criteria used by the trial court. Again, Mr. Kayanga argued that, no reasons were given by the appellate court on refusal of grounds of appeal on value of motor the vehicle. Therefore, urged this Court to wear shoes of the first appellate court to evaluate evidence, and decide the matter in his favour. On the second ground of appeal (then ground three), the learned counsel for the appellant argued that the first appellate court ignored the evidence of the appellant and his prayer in the course of composing the impugned judgment. To strengthen his argument, Mr. Kayanga made reference to page 43 line 9 to 12 and page 44 line 1 to 10 of the 7 trial court proceedings. He further submitted that the trial court failed to consider the contribution of the appellant in the acquisition of matrimonial properties, thus led to double standard to the appellant. To cement his position, he cited the case of Nacky Ester Nyange v Mihayo Marijani Wilmo, Civil Appeal No. 169 of 2019 at page 29 to 30 (unreported). In rebuttal, Mr. Hassan Gunda, learned counsel for Respondent on the outset, argued that this Court being the second Appellate Court cannot, generally interfere with the concurrent findings of the two lower courts. However, the interference is permissive where the court is satisfied that the two courts below misapprehended the evidence in such a manner as to make its conclusions premised on incorrect interpretation of evidence. To support his submission, cited the case of Edward Mbele v Magdalena Jackline Mbele, PC Matrimonial Appeal, No. 11 of 2021 HCT Dodoma (Tanzlii THC 10836), in which the High Court cited with approval the case of Amratlal Damodar Maltasar and another t/a Zanzibar Silk Stores v A.H. Jariwalla t/a Zanzibar Hotel [1980] TLR 31. 8 Submitting about the value of the motor vehicle, he contended that the evidence was evaluated by the first appellate court at page 16 to 17 of the impugned judgment and the said court agreed with the findings of the trial court. He further argued that no records reveal the value of motor vehicle to be Tshs 9,073,600/= as argued by the appellant's counsel. He further argued that, the learned counsel referred the court to page 16 of the impugned judgment which is not a verdict of the court; it was a rejoinder submission. He wound up the first ground of appeal by submitting that, there is no misapprehension of evidence, miscarriage of justice or violation of principle of laws or procedure committed by the lower court. On the second ground of appeal, Mr. Gunda contended that the first appellate court evaluated all evidence available in the trial court proceedings. The court found that the motor vehicle with registration number T 523 DSL, one house located at Uwanja wa Ndege hamlet, were not matrimonial properties. The said properties were acquired after divorce, this shown at page 22 of the impugned judgment. Conversely, he cemented his argument by referring the court to the case of Nacky Ester Myange v Marijani Mihayo (supra) cited by the 9 appellant and argued that parties are duty bound to prove the existence of matrimonial property, as was done by both lower courts. He wound up, by urging this court to upheld the decision of first appellate court and dismiss the appeal for want of merit. In rejoinder, Mr Kelvin Kayanga concurred with the submission that, this a second appellate court, it must consider misapprehension of evidence in making decision of the appeal. Again, he added argued that the second appellate court is not limited to focus on misapprehension of evidence, but also, it has looking on situations where findings are perverse, findings is unreasonable, findings result of misdirection or non-direction on evidence, violation of principles of laws and occasion of miscarriage of justice. He argued that ground one of appeal touches the misapprehension of evidence, non-direction, perverse findings, unreasonableness and miscarriage of justice. To bolster his contention, he cited the case of Juma Anthony v Republic, Criminal Appeal No. 71 of 2020 CAT Dodoma. Then, he reiterated what he submitted in submission in chief and requested this court to allow the instant appeal and quash the decision of the two lower courts. 10 Having carefully gone through a memorandum of appeal, records of appeal and submissions and cited authorities. I prefer to dispose of this appeal not in seriatim, rather by starting with ground number 2. This court being the second appellate court cannot generally interfere with the concurrent findings of the two lower courts. It is trite law that, interference is permissive where the second appellate court is satisfied that the two courts below misapprehended the evidence in such a manner as to make its conclusions premised on incorrect interpretation of evidence. (See: Edward Mbele and Amratlal Damodar Maitasar and Another t/a Zanzibar Silk Stores v A.H Jariwalla t/a Zanzibar Hotel [1980] TLR. 31). I find it pertinent to start by first revealing matters which I find are essential, but not disputed by both parties as, one, the appellant and respondent were married in the year 2011 and blessed with three issues. Two, both parties were civil servants. Three, sometimes in 2017 their marriage relationship become sour as they accused each other for being adulterous and the appellant became cruel and drunkard. And four, the appellant and respondent were not disputing on divorce ii issued by the trial court. Therefore, the issue for determination is whether the appellant's grounds of appeal have merit. In addressing the 2nd ground, it is vital to have a common understanding of regarding the meaning of "Matrimonial Property". In Marcel Kichumisa v Mary Venant Kabirigi, Criminal Appeal No. 52 of 2020 discuss and adopt the definition in Halsbury's Laws of England 4th Ed. at page 491, that matrimonial asset: "Refers to these things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives and used for the benefit of the family as a whole." It is now a settled law that, a property acquired by a husband or wife during the subsistence of their marriage is a matrimonial property. Adopting the definition of the above case law and provisions of laws, will guide this court in making the division of matrimonial properties. The provisions of section 114 (1) of the Law of Marriage Act provides that: "The court shall have power when granting or subsequent to the grant of a decree of separation or divorce, to order the division 12 between the parties of any assets acquired by them during the marriage by their joint effort or to order the sale of any such asset and division between the parties of the proceeds of the sale." The above provision of the law, clearly make a position that a property acquired during marriage is matrimonial property and it is subject to division between the parties. Although, the said property is purchased and registered in the name of individual spouse, it is taken to be a matrimonial property as it was acquired through the joint efforts of a husband and wife. (See: Bi Hawas Mohamed v Ally Seif [1983] TLR. 32 at page 45). Reverting back to our present case, the appellant claims that the first appellate court failed to consider the appellant's complaint over a house situated at Inyonga, Uwanja wa Ndege and a motor vehicle with registration number T 523 DSL The appellant argued that the house situated at Inyonga and the motor vehicle with registration number T 523 DSL are matrimonial properties acquired during subsistence of their marriage. On the other side, the respondent argued that said properties were acquired after divorce. 13 The records reveal that the appellant listed/mentioned that the house situated at Inyonga and motor vehicle with registration number T 523 DSL make Toyota 1ST are among of properties acquired during subsistence of their marriage, but the respondent did not list them as the matrimonial property. It is not disputed that; the appellant is the one who alleged that the said two properties were jointly acquired by them. On the standard of proof, the appellant is duty bound to prove the alleged facts, as per section 110 of the Evidence Act [Cap 6 R.E. 2022]. When the appellant was required to prove alleged facts, he failed to do so and the trial court declared the house located at Inyonga Uwanja wa Ndege and motor vehicle with registration number T 523 DSL, are not matrimonial properties. This can be evidenced at page 29 to 30 of the trial court Judgment from which for ease of reference I propose to reproduce as hereunder: "Mali ziiizoorodheshwa na mdaiwa ambazo aiidai hazikuorodheshwa na mdai na kwamba wamechuma pamoja ambazo ni nyumba 1 Hiyopo Kitongoji cha Uwanja wa Ndege na Gan Na. T523 DSL Mahakama inatamka kuwa mdaiwa hakuieta uthibitisho na ama ushahidi wa kuchuma kwa pamoja nyumba na 14 gari tajwa hapo juu. Hata hivyo, nyumba pamoja na gari tajwa vimepatikana wakati mdai na mdaiwa wakiwa wamekwishatengana kwa mujibu wa ushahidi kwani walitengana tangu tarehe 11/5/2021, na ma/i hizo zimepatikana kipindi ambacho wadaawa walitengana hivyo sio ma/i za pamoja za wadaawa." Since the fact that the appellant and respondent were not husband and wife at the time the house and motor vehicle were acquired and the appellant failed to produce evidence to show that the property was acquired jointly, it is my settled view that the said property does not qualify to be a matrimonial property. The provisions of section 58 of the Law of Marriage Act, provides for a separate property of the husband and wife while section 60 (a) and (b) of the Law of Marriage Act, provides for the presumptions regarding the property acquired as a personal property; if the property is acquired in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs to the person, and when it is in both names, it shall be a rebuttable presumption that the beneficial interests are equal. The said two properties were acquired in the name 15 of respondent Siah Lwitiko as the records reveal. Therefore, according to section 58 of the Law of Marriage Act, the house located at Uwanja wa Ndege and Motor Vehicle with Registration number T 532 DSL are properties of respondent Sia Lwitiko and not matrimonial properties. I find no evidence to rebut the presumption that the said properties have been obtained jointly. Due to the above reasons, I determine the second ground of appeal to be wanting of merit. Tackling the 1st ground on failure to consider appellant's evidence and without assigning reasons for disbelieving or rejecting the evidence of the appellant, indeed, the first appellate court laid down what were called reasons for the decision at page 25 to 26 of the impugned typed judgment which prompted the appellant to challenge them by raising the ground of appeal in this court. The first appellate court stated as fol lows:- "Regarding the facts as to the exact price of the motor vehicle with registration number T160 DKG, at one hand there is a fund transfer request which was tendered by the appellant which reveals the amount of Tshs. 9,073,900/= (Exhibit D3), while on the other hand there is a testimony from the respondent who 16 revealed the amount of Tshs 27,000,000/=. The trial Court did not assume such figures, the evidence on record reveals that the motor vehicle was valued at Tshs 27,000,000/=. I don't see any justification why I must vary with the trial Court on the division of the said motor vehicle, as such the 3rd ground of appeal does not hold water." In order to have a clear picture on what the trial court decided on issue of motor vehicle with registration number T 160 DKG, I will reproduce part of the said decision at page 32 to 33 of the impugned judgment of the trial court thus: "Katika kujibu kiini cha pili, mall zilizopatikana kwa mchango wa pamoja za wadaawa kwa mujibu wa ushahidi kwenye jalada ni gari Na T.160 DKG, nyumba na shamba lenye ukubwa wa hekari 26 lililopo katika kitongoji cha Izenga Kijiji cha Utende...." Again, at page 35 of the trial court judgment the trial Magistrate made division of matrimonial properties acquired jointly, by ordering the amount of Tshs 12,000,000/= to be paid by the appellant to the 17 respondent as part of her contribution to the motor vehicle with registration number T 160 DKG. From the above analysis, it is clearly seen that the trial magistrate ordered the appellant to pay 12,000,000/= without stating any legal base of the decision made. In her testimony, the respondent did not produce any documentary evidence to prove the value of the said motor vehicle. More so, the trial magistrate did not demonstrate reasons for disregarding the documentary evidence in the judgment, although the fund transfer request, as proof of value of motor vehicle, was tendered and admitted as exhibit D3. In the case of Tanzania Breweries Ltd v Anthony Nyingi [2016] TLR. 99 the Court held, inter alia, that: "If a court of law decides to accept or reject a party's argument, it must demonstrate that it has considered the same, and set out reasons for rejecting or accepting it. Otherwise, the decision becomes an arbitrary one. "[Emphasis mine] Being the respondent, she failed to discharge her burden of proof regarding the existence of the facts that the value of motor vehicle is Tshs 27,000,000/=. In her testimony, the respondent mentioned the 18 value of the motor vehicle without producing any substantial evidence. Whereas, the appellant tendered a fund transfer request showing the amount of Tshs 9,073,900/=. In my view, the appellant proved the purchased value of motor vehicle Toyota Rav4 with registration T 160 DKG, that the amount was Tshs 9,073,900/=. Conversely, we are guided by the basic rule that he who alleges has burden of proof as per section 110 of the Evidence Act, Cap 6 R.E. 2022. The standard of proof in a civil case is on a preponderance of probabilities meaning that the court will sustain such evidence that is more credible than the other on particular fact to be proved. (See: Mary Agnes Mpelumbe v Shekha Nasser Hamad, Civil Appeal No. 136 of 2021. In the case at hand, the evidence of the appellant is more credible than the evidence of the respondent on the value of motor vehicle in dispute. Therefore, I order the amount of Tsh 4,536,950/= to be paid by the appellant as part of her contribution to the motor vehicle with registration number T 160 DKG make Toyota Rav4. Thus, the 1st ground of appeal has merit. 19 Therefore, due to the above stated reasons, I partly allow the appeal and uphold the decision of the trial court and first appellate court in relation to the order that the house located at Uwanja wa ndege and motor vehicle with registration number T 532 DSL are personal properties of the respondent Siah Lwitiko, and not matrimonial properties subject to division. It is so ordered. 30.09.2024 DATED at MPANDA this 30th day of September, 2024. 20