bakari hassani saidi vs asina selemani 2020 tzhc 82 27 february 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MTWARA) AT MTWARA , PC. CIVIL APPEAL NO 11 OF 2019 (Arising from MatrimonialAppeal NO. 14 o f 2018 o f Masasi District Court; Originating from Lisekese Primary Court in Matrimonial Case NO.27 o f 2018) BAKARI HASSANI SAIDI............. ........................APPELANT VERSUS ASINA SELEMANI..................................................RESPONDENT JUDGMENT Hearing date on: 13/2/2020 Date o fjudgment: 27/2/2020 NGWEMBE, J. This is an appeal against the decision of the District Court of Masasi, which in effect set aside the decision of Lisekese Primary Court on the issue of division of matrimonial properties obtained during cohabitation of the parties. It was established during trial that the two parties had cohabitation from 2011 until when fuds and tensions arose between them, which ended to Lisekese primary court for divorce. The trial magistrate considered if at all there was any marriage known by law, the court concluded that there, was no formal marriage but presumption of marriage, which parties did not dispute. The parties did not venture to court for divorce, rather wer^r on division of what found together during their cohabitation. According to the record from the trial court, the dispute which hold the parties to loggerheads is division of farms. One farm has 22 cashew nutstrees, the second has ten (10) cashew nuts trees and the last one has eight (8) cashew nuts trees, forming a total of three farms. The trial court divided those farms among them, that the respondent was given two farms, the one with ten (10) and eight (8) cashew nuts tree, while the appellant was given a farm with twenty-two (22) cashew nuts trees. But the respondent was dissatisfied, hence appalled to the District court where the first appellate cour,t nullified the judgement of the trial court and ordered no division of the said land to the appellant. That is all farms belong to the respondent/appellant, which decision aggrieved the appellant, hence this appeal armed with two grounds namely; 1. That the trial court erred in law and in facts by not considering the time limit in appeals originating from primary court, despite the fact being brought to the attention of the court thus, arriving to erroneous judgment. 2. That the trial magistrate erred in law and in facts by arriving his decision based on argument that I was compensated for a farm that we jointly acquired. On the hearing date, the appellant appeared alone, when he was asked as to where about the respondent, the answer was that, she refused to accept neither summons nor documents from the appellant or this court and refused to appear in court. Being curious to know more on the truth of that assertion, the appellant referred this court to the letter written by the Village Executive Officer of Ngalole Village written on 13/9/2019. Part of the contents of the letter is quoted hereunder:- "Asina Se/emani ni makazi wa kijiji cha Ngalole kata ya Namajani Wi/aya ya Masasi, ambaye amehitajika katika mahakama hiyo mtwara. Lakini baada ya kumfikishia taarifa hizo za kuhitajika a/ikataa kuzipokea pia a/ikataa kuweka sahihi yake" In brief, the respondent refused to accept summons to appear for hearing of this appeal. In the circumstances, this court ordered the appellant to proceed arguing his appeal uncontested. In turn, the appellant in his brief submission, stated that, this appeal is against the decision of Masasi District Court, which decided in favour of the respondent. He pointed out that the dispute is related to ownership of three cashew nut farms. The District Court ordered all the three farms to be owned by the respondent, leaving him with no any farm. He rested his submission by praying this court to make fair distribution of the said farms. The trial magistrate was firm to distribute the said farms according to the evidence adduced in court. At page 3 of the judgement (Hukumu) had this to say:- 3 "Mahakama h ii kwa mamlaka i/iyo nayo kwa mujibu wa kifungu cha 114 cha sheria ya Ndoa ya 1971 inazigawa ma/i hizo ambazo hazikugawiwa katika mashamba matatu mdai atapata shamba la mikorosho kumi na Hie la mikorosho nane na mdaiwa The question now is, whether the disputants acquired such properties jointly? In his submission the appellant submitted that, the District Court ordered all the three cashew nuts farms be owned by the respondent, leaving the appellant with no farm at all. The evidence on record indicates that, parties acquired three cashew nuts farms among other properties. The only holding the parties in loggerhead is division of those farms. It is a legal position of law that division of matrimonial property or properties founded on cohabitation of parties should be divided according to each party's contribution. Section 114(2) of the law of marriage Act provides that:- "In exercising the power conferred by section (1), the court shall have regard (a) To the customs o f the community to which the parties belongs; (b) To the extent o f the contributions made by each party in money, property or work towards the acquiring o f the assets; (c) To any debts owing by either party which were contracted for the joint benefit; and (d) To the needs o f the infant children, if any o f the marriage, and subject to those considerations, shall incline towards equality o f division". Likewise, it is a settled principle of law that issues which entirely based on credibility and reliability of witnesses should properly be dealt with by the trial court as opposed to the appellate court. In the case of Augustino Peter Mmasi Vs Tausi Selemani, Civil Appeal No. 56 of 2014, (CAT), at Dar es Salaam (unreported) had similar guidance on this issue. The evidence testified by the appellant during trial had this to say: "Kwenye ndoa yetu tumebahatika kupata mashamba matatu". In cross examination the appellant testified \hdV'Mashamba nimepata nikiwa na wewe na wa/io tuuzia wapo. Mashamba tulinunua wote mimi na wewe. Mashamba tulinunua kwa pesa ya kilimo. Tulikuwa tunalima katika shamba la ndugu yake mdaiwa" Based on that piece of evidences the trial court divided the three farms accordingly. It is evident that disputants during the existence of their cohabitation were engaged in agriculture and the proceeds of that farming enabled them to purchase those farms. Thus, the farms were jointly acquired. In the case of Robert Aranjo Vs Zena Mwijuma [1984] TLR 7, the court held:- "The court has power, when granting a decree o f divorce or separation, to make an order for division o f matrimonial assets acquired during the marriage by the joint efforts o f the parties". The same position was repeated in the case of Mahega Zengo Vs Holo Kadaso [1982] T.L.R. 94, held:- "The court hearing a petition for a decree o f divorce or separation has the duty to enquire into the issue o f matrimonial property". In totality and according to the evidence on record, I find justice demand each party should benefit from his sweat be it from agriculture or business or employment, so long each party participated in acquisition of the disputed property. Therefore, I find merit to this appeal and no cogent reason to disturb the well-reasoned judgement of the trial court. Accordingly, I hereby quash the judgement of the District Court and exceedingly, restore the judgement and orders arrived by the trial court. Each party to bear his/her own costs. I accordingly Order. DATED at Mtwara in chambers this 27th day of February,2020. 6