arafat semindu mngujanga vs salama gaitan salila 2023 tzhc 15874 28 february 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 30 OF 2021 (Arising from Madai No. 123 of 2019 Primary Court of Ukonga and Civil Appeal No. 102 of 2019, Ilala District Court) ARAFAT SEMINDU MNGUJANGA …………………….……......……….… APPELLANT VERSUS SALAMA GAITAN SALILA ……………….……………………………….. RESPONDENT JUDGMENT 13th & 28th February, 2023 MWANGA, J. This is a second appeal. It has its origin from the Primary Court of Ukonga in Madai ya Talaka No. 123 of 2019 where the appellant Salama Gaitan Salila filed a divorce suit against the appellant one Arafat Semindu Mngujanga. By then, the couples had contracted Islamic marriage way back 2000 and blessed with two issues. In their marriage, they managed to acquire several properties including a matrimonial house located at 1 Gongolamboto, three acres of farm located at Masanganya Kisarawe, TV, Radio, several domestic utensils and shop business. It is notably that the marriage had broken down irreparably and it was dissolved by the trial court based on claims by the respondent that the appellant had not been providing maintenance to the respondent, moving away domestic utensils and also removing away some of the properties alleged to have been acquired jointly. Upon successful litigation by the respondent, the trial court proceeded to issue divorce and distribution of matrimonial properties, the house being amongst them. In respect of that house, the appellant was awarded a share of 65% and the respondent 35%. Apart from that, the respondent was awarded a TV, 3 acres of farm and custody of the children. The appellant was awarded a radio, shop business, maintenance of the children to a tune of Tshs. 150,000/= on monthly basis, medical and school expenses for the children. However, the respondent was dissatisfied with the decision and appealed to the District Court of Ilala where it overturned the trial court’s decision in respect of the matrimonial house. It distributed a share of 80% 2 for the respondent and 20% for the appellant. Other orders of the trial court were left undisturbed. The trial court decision based on the extent of contribution by each spouse in the acquisition of the matrimonial properties. It considered the fact that; One, the life of the appellant and respondent largely depended on the shop business. Two, before the contracted marriage the respondent was jobless. Three, in 2007 the respondent re-seated form four examinations for one year and, thereafter she joined a nurse training course at Lugalo College Training for four years at the expenses of the appellant. Four, the respondent was employed and received salaries while the appellant was running a shop business and fifth, the respondent took loan from FINCA and injected money in the expansion of the house and conduct of shop business. In the District Court, the magistrate considered the fact that, the respondent took a loan from FINCA financial Services when she got employed in the year 2012. Hence adding financial contribution in the acquisition of the matrimonial house. In the present appeal, this court is moved with the grounds that: - 3 1. the Hon. Magistrate of the District Court erred in law and fact in awarding division of the matrimonial assets to the respondent 80% and give only 20% to the appellant without any sufficient evidence to support the findings. 2. the Hon. Magistrate of the District Court erred in law and fact in deciding the case without properly evaluating the evidence tendered before the trial court. When the matter came up for hearing, the learned counsel Mr. Juma Nassoro argued both grounds of appeal together. The counsel submitted that the evidence of the appellant carries more weight than that of the respondent in so far as contribution to the acquisition of the matrimonial house is concerned. He categorised that; One, at the time of acquisition of the house the respondent was a house wife and for a period of five years the appellant was taking care of the family together with developments of family including the matrimonial house. Two, the respondent was a student and she pursued her studies including school fees under the expenses of the appellant. Three, the appellant was working with Tanzania ships contractor. Four, there is no good reason by 4 the appellate court for awarding a share of 20% to the appellant and 80% to the respondent in respect of the matrimonial house. Per contra, Mr. Nafikile Mwamboma learned counsel for the respondent apposed the appeal in its entirety. He contended that the evidence on record shows that the respondent contributed more in the acquisition of matrimonial property than the appellant. It was the counsel submission that, the respondent was a business woman (timber business) and, she was employed and took loan twice from the bank and consequently apportioned some money to the appellant to start a shop business which was a source of capital enabled acquisition of matrimonial house. He asserted further that, there was no evidence of receipts brought by the appellant that he paid for a school fee to the respondent during her studies. In rejoinder, Mr. Juma Nassoro differed greatly with the counsel. He insisted that the respondent who was the plaintiff at the trial court had a duty to prove her allegations as to how much she had contributed to the acquisition of the house in question. He argued further that, the issue is 5 not whether the respondent was a businessman or not but rather proof of extent of contribution. It was his further contention that, the loan taken by the respondent had nothing to do with the acquisition of matrimonial property because the same was taken after acquisition of matrimonial house. From the summarised submission, proceedings and decisions of the two court below, I have carefully taken into consideration the fact that; First, the rival parties in the present appeal got married in the year 2000. Second, the appellant was working at Tanzania ships contractor as a casual labour since 1997. Third, before marriage the respondent was given Tshs. 800,000/= by the appellant to start timber business which did not last long as the appellant persuaded the respondent to pursue further studies. Fourth, from the year 2007 to 2011 the respondent re-seated a form four class for one year and went to a nursing training course for four years at the expenses of the appellant. Fifth, the appellant bought a plot valued Tshs. 800,000/= where the contested house was built with his town salary but registered in the names of both appellant and the respondent. Sixth, on the year 2004 the appellant built a three bedrooms house in the same plot and three years later the respondent went to school for a period 6 of five years. Seventh, the couple bought a three-acre farm registered in the names of both appellant and the respondent and seventh; on 2012 the respondent got employment and subsequently took a loan of Tshs 7,000,000/= from FINCA and the same were distributed as follows; Tshs. 1,000,000/= for her personal use, Tshs. 3,000,000/= purchase of a car for her husband, of which later on she took it back upon quarrels, Tshs. 2,000,000/= were injected as part of costs in the expansion of the house on the same plot, hence making a house with a total of six bedrooms. The remaining Tshs. 1,000,000/= was injected in the shop business. In consideration of the authority in the case of; Azalia Betul Ngowi Vs Erasto Jonathan Nkinda, Civil Appeal No. 51 of 2021(Unreported) it was held that; ‘It is a settled position of the law that court must have taken into consideration the extent of the contribution made by each party during the acquisition of the matrimonial properties. The guiding provision of the law in this aspect is Section 114(2) of the Law of marriage Act, [Cap 29 R.E 2019]’. 7 In the above cited case, the court recited the case of Gabriel Nimroud Kurwijira Vs Thresia Hassan Malongo, Civil Appeal No. 102 of 2018, (Unreported) where it was held that; “The issue of the extent of the contribution made by each part does not necessarily mean monetary contribution; it can either be property, or work or even advice towards the acquiring of the matrimonial property” On the basis of the authorities cited, the Primary Court of Ukonga had rightly taken into account in its analysis the extent of contribution of each part in the acquisition of the matrimonial properties. Therefore, the District Court had added nothing new to overturn the decision of the trial court. The whole basis of the decision of the trial court was founded on the contribution of each part in terms of property, or work or even advice. As rightly observed by the trial court, investment by the appellant by persuading and taking the respondent for further studies cannot be ignored. That’s what led the respondent to get job which contributed partly in the acquisition of the matrimonial properties. 8 In essence, I do not find it practical for the appellant to furnishing receipts as a proof that he incurred expenses relating to the studies of the respondent. Rarely people can do that and have such recollection during happy times of the marriage. What was important is that, the trial court considered extent of contribution by each part and that finally awarded the respective shares to the parties in respect of the matrimonial house. The appellate court should have not ignored the fact that, the respondent was also given an additional of three acres farm and a TV, while the appellant was given a radio and duty to provide maintenance to the children at the tune of Tshs. 150,000/= monthly including medical and school expenses. Again, as rightly stated by the counsel Mr. Nassoro, the respondent who was the plaintiff at the trial court had a duty to bring further proof that she was entitled more than what she was awarded. It is my considered view that, if the appellate court had analysed the evidence properly it would have realised that, it had no valid reason(s) to vary the decision of the trial court. 9 Having said that, I hereby allow the appeal. The judgment and Decree of the District Court of Ilala at Kinyerezi in Civil Appeal No. 102 of 2019 is quashed and set aside. The trial court’s decision is upheld. This being a matrimonial cause, I order no costs, Order accordingly. H. R. MWANGA JUDGE 28/02/2023 COURT: Judgement delivered in the presence of the learned counsel for appellant and respondent. H. R. MWANGA JUDGE 28/02/2023 10