amos peter vs semeni charles 2023 tzhc 22725 17 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SHINYANGA

AT SHINYANGA (PC) CIVIL APPEAL 24 OF 2023 (Arising from Matrimonial Appeal No. 01/2022 of Busega District Court, and Matrimonial cause No. 09 of 2022 from Nyashimo Primary Court) AMOS PETER II •••••••••••••••••••• II •••• II. II •• II II •••••• APPELLANT

VERSUS

SEMENI CHARLES RESPONDENT

JUDGMENT Date of last order: 1st November, 2023 Date of Judgement: 17h November, 2023 MIRINDO l.: Amos Peter and Semeni Charles were husband and wife from 1999 until 2016 when they were divorced by Nyashimo Primary Court. Subsequent to the divorce, Semeni applied before Nyashimo Primary Court for the division of the matrimonial properties and maintenance of their six children. It was clear before the trial court that all the children were staying with their father, Amos. Some of the children were attending school while others were not. The Primary Court ordered that three children who were still attending school to continue staying with their father Amos but should be free to visit their mother whenever they wish. In connection with the other three children who were above sixteen years, the Primary Court ordered that they 1 are at liberty to choose where to stay and if they so wish, they may continue to stay with their father. At the trial Semeni listed several properties that she claimed were obtained by their joint efforts during the subsistence of their marriage. On his part, Amos testified that he was a fisherman at the time he married Semeni and mentioned certain properties he acquired before marriage and disputed certain items that Semeni listed for distribution. After hearing both sides, the Primary Court divided the properties among them. Amos was not satisfied with the

division of the matrimonial assets made by the Nyashimo Primary Court and appealed to Busega District Court. He challenged equal distribution of the matrimonial assets made without regard to the fact that his share of contribution was larger than that of Semeni. He also challenged the distribution on the grounds that the Primary Court overlooked the contribution of his second wife and greater responsibility shouldered on him to maintain their children. The District Court dismissed the appeal on the grounds that there was no equal distribution of the matrimonial assets as claimed by Amos and it was the Amos who was given 70% of the assets while Semeni was given 30%. Still feeling aggrieved, Amos has appealed to this Court on the grounds that the lower courts misdirected themselves on equal distribution of the matrimonial assets, in not considering the contribution of his second wife and 2 by considering percentages in distribution of the assets rather than the greater contribution by Amos. At the hearing of the appeal, Amos appeared in person and Semeni was represented by Mr. Feran Kweka, learned Advocate. With the leave of this Court, the appeal was argued by way of written submissions. Mr. Kweka raised unfounded objections that the relating to signature in the Petition of Appel and that fees were not paid for the Petition. I find these allegations unfounded and proceed to

consider the appeal on merit. Amos argued that since he has a second wife and children to maintain, the division of the matrimonial assets should have been based on the fact that he had larger contribution than Semeni. On the other hand, Mr Kweka argued on behalf of Semeni that there was no equal distribution of the matrimonial assets since the Semeni got only 30% In his second ground of appeal, Amos argued that in dividing their matrimonial assets the contribution of the second wife should have been taken into account. Mr Kweka argued that the second wife was not the legal wife of Amos because she was not living with Amos in the same roof as her husband. In the last ground of appeal, Amos argued that the guest house should be given to him by taking into account the contribution of the second wife. He 3 should retain the guest house for smooth operation and Semeni be given another house with full mandate to sell or rent it. Mr Kweka concluded that during the subsistence of this appeal, Amos has sold the house of Lamadi which was given to Semeni. With due respect to the learned counsel, these are allegations of fact which cannot be proved by mere submissions and this Court cannot act on them at this stage. From these arguments, the question is whether the first appellate court properly addressed itself on the division of matrimonial properties by Nyashimo Primary Court. On

appeal from Primary Court, this Court on a second appeal, as opposed to the Court of Appeal has broad powers under section 29 (a) of the Magistrates' Courts Act [Cap 11 RE 2019]. In my considered opinion the first appellate court misinterpreted the division of matrimonial assets by the trial court when it held that Amos was given 70% while Semeni got 30%. The percentage was used by the trial court in respect of the value of the guest house and its furniture where Amos was given 70% and Semeni 30%. The rest of the matrimonial assets were not divided in this manner. It was therefore a misdirection, on this basis, to hold that Amos was given larger share in the division of the matrimonial assets. Considering that Amos was the bread winner and retains responsibility to maintain their six children including their education, this Court deems it in the interest of justice to vary the division of the matrimonial assets. It is 4 ordered that the guest house, the bar and its furniture together with one house in Nyamikoma A, shall be the property of Amos. Two houses in Nyamikoma A shall be the property of Semeni. The rest of the division of the matrimonial assets remains undisturbed. For these reasons, I partly allow the appeal. Each party to bear its own costs. 5