20160311 TZHC Arusha

. ~ --~· . .~ ' 0, IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA (PC) CIVIL APPEAL NO 3 OF 2015 ' (Originating from C/F Misc. ~ivil Application No 14 of 2014) I I I 1 BARNABAS.F.MUSOMA ....... .......................... APPELLANT I VERSUS I 1 ADELMARS B MUSOMA ...... ...................... RESPONDENT I JUDGMENT Date of last Order: 17/02/2016, Date of Judgment: 11/3/2016 ! I BEFORE: S.C MOSHI. l The appellant herein, beir,g aggrieved by the ruling of the District Court of Arusha at Arusha, in Civil application No.14 /2014 delivered by R.A Ngoka: R.M. He has lodged his appeal I on the following grounds:- ; 1. That, the learned trial magistrate erred in law and fact by entertaining and distributing the appellant's properties basing on flat allegation without there being proof of contribution by the respondent. I I ll I l 2. That the learned trial magistrate erred in law and fact by failure to adduce reasons for disbelieving the evidence by the appellant and instead accorded due weight on un proven assertion by the respondent. 3. That the learned trial magistrate erred in law and fact by distributing the assets which were acquired neither during the marriage nor through the joint efforts of the parties. The appeal was argued by way of written submission and both the appellant and respondent appeared in person unrepresented. Submitting in respect of the first and second grounds of appeal the appellant submitted that the learned magistrate did not make assessment of the evidence adduced by the respondent and tests such evidence against the finding of the evidence provided by the respondent and appellant as the trial magistrate's duty was to weigh and evaluate evidence from both the appellant and respondent. He further argued that the learned magistrate has never disposed the evidence that produced by the respondent on the whole account of acquisition the house at Nshupu if the learned magistrate has been able to consider the evidence by both parties would have found that the evidence of the appellant was more preferrable than that of the respondent as she has 2 failed even to indicate the contribution that she has made to acquire the property that she claimed to be matrimonial. i Submitting in respect of the third ground, it was the appellant's arguments that the provision of'section 114 (1) (2) of the Law of Marriage Act, Cap 29 R.E 2002 provides that i "The court have the power to order the division between the parties of any assets acquired by them during the by their Joint efforts or to order the sale of any such assets and the division between the parties of the proceed of ' sale" He said from the provision of the law above, the Law envisaged that there must firstly be matrimonial assets, and secondly they must have been acquired by them during the marriage by their joint efforts, he supported his argument by the case of Bi Hawa Mohamed V Ally Seif [l983] T.L.R. 32. I i He said the important point of law and of consideration is I whether the house located at; Nshupu village and two acres farm were matrimonial or family asset at the time of dissolution of marriage, there is no dispute on that as the house was used by parties as their matrimonial home at the time they got married and two acres was also under control of the parties they were therefore matrimonia!I assets. ' 3 He further said that he has been able to acquire his property by himself and all the property the learned magistrate has ordered to be given to the respondent has never being acquired by joint effort or during their marriage, he said the house in Nshupu was built in 1980 to 1983 and he married respondent in 1985 therefore it is clear that the property was not party of the matrimonial property the respondent has failed to adduce on the extent of her direct, financial contribution to satisfy the requirement of the law. He prayed for the appeal to be aII owed with costs. In reply thereto, the respondent submitted that there is no dispute that the parties got married and lived as husband and wife from 1985 to 2003 when the respondent obtained ex parte decree for divorce, and the parties lived in Nshupu area Usa river on the land given to_ the respondent by his parents after he got married and the said land was later developed by the appellant and the respondent. She further submitted that it is evidently clear from record that when she got married the family house was at the window's stage of construction and they jointly constructed it until it was completed, it was not true that the house was constructed by the effort of the appellant himself she however 4 said that, the house has been partly demolished and reconstructed by their children. She said that she contributed to develop the farm given to them throughout from when she got married in order obtain food for herself and children especially after her return home from Mombasa to supervise construction of the family house. Responding to the second ground of appeal the respondent argued that the learned magistrate did not ignore the appellant's submission but it was the finding of the court that each party was entitled to the distribution of assets basing on the contribution. On the third ground it was her argument that there are assets in which were given to the respondents by his parents immediately after he got married and the property acquired by the respondent before marriage and there are also properties acquired by their joint effort after marriage. She said she participated in the construction of the house until it was completed, she also said that they purchased plot in Himo in 1989 and constructed a house by joint effort, also a plot at Ngaresero Usa river which was purchased by the respondent and business premises was constructed. 5 I have given due consideration to both sides submissions I have also perused the relevant record upon which the appeal is based on. All grounds of appeal centers on the issue of division of matrimonial property. There is evidence from the trial court record that the appellant and the respondent got married in 1985. There is also evidence that the appellant and respondent have been blessed with four issues, Fred Barnabas, Jane Barnabas, Jackline Barnabas and Joseph Barnabas and that during their subsistence of their marriage they were able to acquire matrimonial properties by their joint efforts. The house located at Nshupu was partly built by the appellant in 1980 and the respondent came to join him in 1985 after their marriage. The construction of the said house was not finished. It was built up to the level of the windows. There is also evidence on record that the couple went to live in Mombasa after their marriage. The money· they got used to develop their house in Nshupu.there was also a farm which were given to the couple by the appellant's father they developed the farms and they also develop the house of ngaresero area. However according to the evidence on record the couple was not living in peace and harmony the appellant then decided to file petition for divorce in 2005 the same was granted 6 From the court record it was not disputed that there were matrimonial properties which were jointly acquired by the couple during the subsistence of their marriage therefore the conclusion is that all the matrimonial property which upon separation are subject to equal division upon the parties, section 114 of the Law of marriage Act is very clear that the court has power to order division of matrimonial property acquired by parties during the subsistence of their marriage. Considering the evidence as a whole as shown above, it is my view that the first appellate court Magistrate was right when she ordered that the respondent should remain with the house located at Nshupu village and two acres farm at Nshupu village, the appellant to remain with the house located at Ngarasero and a house in Himo. Therefore, as the first appellate court did, I direct that the matrimonial property be divided equally among the parties as ordered by the trial court. That said the appeal fails and the same is dismissed with costs. Right of Appeal explained. s.c.~ JUDGE 11/3/2016 7