MATRIMONIAL APPEAL BASHIRU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DARES SALAAM SUB-REGISTRY AT DARES SALAAM P.C MATRIMONIAL APPEAL No. 3538 OF 2024 (C/f Matrimonial appeal No. 8 of2023 in the District Court of Mkuranga at Mkuranga originating from Matrimonial Case No.25 of2023 in Mkuranga Primary Court) BASHIRU ABDALLAH KILAPO..................................................... APPELLANT VERSUS JAZILA ALLY OMARI.......................................................................RESPONDENT JUDGMENT Date of last Order: 29-7-2024 Date ofJudgment: 25-10-2024 B.K.PHILLIP, J The appellant herein lodged this appeal to challenge the judgment of the District Court of Mkuranga, which upheld the decision of the Primary Court of Mkuranga. The grounds of appeal are reproduced verbatim hereunder: i) That, the trial Magistrate erred in law and in fact by fail (s/c) to take into account that there was no property that was acquired during marriage (sic) and that there was no evidence presented by respondent during trial that show (si$ the contribution made by the respondent. i I ii) That, the trial Magistrate erred in law and fact by holding that the property which was not acquired jointly and during marriage (sic) to be divided to 75% of the current value (sic) to be given to the respondent herein and 25% of the current value to be given to the appellant herein. iii) That, the trial Magistrate erred in law and fact by ignoring and failing to analyze the evidence tendered to (S/c) court by the Appellant with respect to the property, as the appellant acquired all the property before marriage. iv) That, the trial Magistrate erred in law and fact by introducing new facts and statements that were not said by the parties in the first trial nor in the appeal at the District Court. v) That, the trial Magistrate erred in law and in fact by fail (s/c) to take into account that respondent did not file any reply in the appeal at the District court. In this court, the learned advocates Agnes B. Manyanga and Alpha Mchaki appeared for the appellant and respondent, respectively. The appeal was heard through written submissions. 2 Briefly, the background to this appeal is that the appellant and respondent were married in 2020 under Islamic laws. Their marriage was blessed with one issue. They had a joyful marriage until 2022 when the appellant accused the respondent of poisoning him to the extent that he had to undergo an operation. Their relationship became sour, and eventually, the appellant petitioned for divorce at the Primary Court of Mkuranga (hereinafter referred to as "the Primary Court") after serving the respondent with Talak under Islamic laws. During the hearing of the divorce petition, the appellant testified as PW1, whereas the respondent testified as DW1. Upon receiving evidence from both sides, the Primary Court granted the decree for divorce and ordered the house at Kisemvule, claimed by the respondent to be their matrimonial home, be auctioned and 25% of the proceeds thereof be given to the appellant. The remaining 75% be given to the respondent. Moreover, the Primary Court ordered the appellant to take the motorcycle with registration No. MC 459 CUE and the second motorcycle with registration No.MC 297 CUR was given to the respondent. As alluded to at the beginning of this judgment, the appellant was dissatisfied with the judgment of the Primary Court. He appealed to the District Court of Mkuranga, but his appeal did not succeed. 3 Back to this appeal, submitting in support of the appeal, the learned Advocate Agnes Manyanga argued that according to the provisions of section 114 (1) of the Law of Marriage Act [CAP 29 R.E 2019] and its amendment of 2022, the court has the power to divide between the couple assets acquired with their joint effort during the subsistence of their marriage and not properties acquired by either party before marriage. Those powers vested in courts are exercised in consideration of the evidence adduced by the parties during the hearing of the case. She contended that the appellant herein produced before the primary court a sale agreement on which he proved that he purchased a piece of land located at Kisemvule village on the 14th day of March 2013. In his testimony, the appellant told the trial court that after purchasing the said land, he started construction of the house immediately and was able to finish the construction in the same year. Referring to page no.2, paragraph 3 of the primary court judgment, Ms. Manyanga contended that in her testimony, the respondent testified that the appellant acquired the house at Kisemvule before their marriage. Further, Ms. Manyanga argued that apart from the house at Kisemvule, the Appellant, in his testimony, told the trial Court that he bought a car and 4 motorcycles with the money he obtained through a loan, which he repaid through his salary deductions, and the respondent did not contribute anything towards the acquisition of those properties. To cement her argument, she cited the case of SAMWEL MOYO vs. MARY CASSIAN KAYO M BO [1999] TLR 197. Ms. Manyanga was emphatic that in resolving the division of matrimonial property after declaring that a marriage has been broken down, the court must rely on the evidence and testimonies adduced by the parties. She believed that the appellant testified extensively regarding acquiring the properties in dispute. She stated that they do not form part of the matrimonial properties because the appellant acquired the house at Kisemvule before he married the respondent. Both the lower courts failed to properly analyze the evidence adduced and erred in giving the respondent 75% percent of the house's value, whereas the respondent did not prove that she contributed towards the acquisition of that house. The evidence shows that the appellant acquired that house before their marriage, contended, Ms. Manyanga. Relying on section 114 (3) of the Law of Marriage Act [cap 29 R. E 2019], as amended (henceforth " the LMA"), 5 provides that no asset acquired before marriage shall be divided between the parties if they do not prove that the asset acquired by either party before the marriage has been substantially improved during the marriage by the other party or by their joint efforts. To cement her argument, she referred this court to the case of Faraja Nsemwa Vs. Alex Mbilinyi (PC) Matrimonial Appeal No. 04 of 2018 (unreported). Moreover, Ms.Manyanga argued that the appellant stated clearly that he acquired other assets (a motor vehicle and two motorcycles) after successfully securing a loan from the bank, which he repaid by deductions from his salary. She referred this Court to section 60 (a) of the LMA, which provides that; " Where during the subsistence of a marriage, any property is acquired- (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse". She cited the case of Yesse Mrisho Vs Sania Abdul, Civil Appeal No. 147 of 2016 (unreported), in which the Court of Appeal discussed the import of section 114 of the LMA and held as follows; "....In our view, the import of the above provision is that distribution of 6 1 1 matrimonial property is guided by the principles enshrined in the above quoted provisionf and understanding of what constitutes matrimonial property is also essential in determining the extent of contribution. Section 60 of the LMA, pronounces presumption of property acquired during marriage..." Also, she referred this court to the case of Gabriel Nimrodi Kurwijila Vs Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 (unreported), in which the court held that: "The extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property. In resolving the issue of extent of contribution, the court will mostly rely on the evidence adduced by the parties to prove the extent of contribution... " Concerning the 3rd ground of appeal, Ms. Manyaga argued on the 15th day of September 2023, upon entering appearance before the District Court, the court ordered the appeal be disposed of by way of written submissions, and the schedule for filing the submission was as follows; the Appellant's Submission in chief was supposed to be filed on or before 29th day of September 2023. The respondent's reply submission was to be filed on or before the 13th day of October 2023. Rejoinder, if any, by the appellant was 7 ordered to be filed on or before the 20th day of October 2023. Contrary to the Court order aforesaid, the Respondent never filed any submission. Still, on pages 4 and 5 of the judgment of the District Court, the Magistrate refers to the respondent's submission, which, in reality, there was none as the respondent did not file any submission, contended Ms. Manyanga. She pointed out that she informed the District formally that the respondent did not file her reply submission. She prayed to the court to consider the appellant's submissions only as the respondent did not comply with the court order. She contended that the District Magistrate introduced facts that the parties had not stated during the case hearing before the trial court or in the District Court. In delivering its decision, she believed that the District Court must be fair and not biased. The fact that the respondent failed/ neglected to file a reply submission should have been considered non­ appearance during the case hearing. She cited several cases that I cannot reproduce all of them in this judgment, including the case of Godfrey Kimbe Vs. Peter Ngonyani, Civil Appeal No. 41 of 2014 (unreported), in which the Court of Appeal made the following observation; 'We are taking this course because failure to lodge written submission after being so ordered by the Courtis tantamount to failure to prosecute or defend 8 one's case " In rebuttal, Mr. Mchaki submitted the following: The Respondent was employed. She was taking care of all family needs for almost four years because the Appellant was unemployed and depended on her (The respondent). It is clear that the Respondent used her energy and money to a large extent to take care of her family. Moreover, she took responsibility for improving the house at Kisemvule, which was unfinished and unsuitable for accommodation. The respondent built one bedroom and toilet to create a friendly living environment. Later, the family moved to Kisemvule Village. He went on to argue that the house at Kisemvule is a matrimonial house. The Respondent has the right of ownership over that house because she directly contributed to developing and improving it since it was in poor condition and unsuitable for living. She made a significant contribution to ensure that the family got a better home while continuing with the responsibilities of taking care of the family from 2019 until the Appellant got a job in 2021, which is a significant contribution. Mr.Mchaki supported the impugned decision. He argued that the lower courts correctly directed themselves and considered each spouse's contribution to acquiring and developing assets during the subsistence of their marriage. The division of 9 matrimonial properties made by the lower courts was correct as they focused on the contribution made by each spouse. In reality, the respondent's contribution was more significant than that of the Appellant, who was unemployed for a long time and depended on the respondent, contended Mr. Mchaki. He cited the case of Asile Ally Said Vs Irene Redentha Emmanuel Soka and another Civil Appeal No. 80 of 2020 ( unreported), to cement his arguments. Relying on section 110 (1) and (2) of the Evidence Act, [ Cap. 6 R.E. 2022] Mr.Mchaki argued that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fact he asserts must prove that those facts exist and the burden lies on that person. He contended that the standard of proof in civil matters is on the balance of probability. According to the law, when measuring the weight of evidence, it is not the number of witnesses that counts most; it is the quality of the evidence. He cited the case of Hemed Said vs Mohamed Mbilu, [1984] TLR 113, in which the court held as follows; " according to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the one who must win." io I Mr. Mchaki was of the view that gauging the evidence of the Appellant against that of the Respondent, the evidence of the Respondent was undoubtedly heavier than that of the Appellant since the Respondent explained before the court very well how she contributed to the improvement of the matrimonial home at Kisemvule and the development of the family in general, including the period she was the sole breadwinner in the family. In rejoinder, Ms. Manyanga reiterated her submission in chief. She added that the case of Asile Ally Said (supra) is irrelevant because it concerns properties acquired after marriage, not before marriage. Having dispassionately analyzed the submissions made by the learned Advocates, I am constrained to start dealing with the last ground of appeal on filing the written submissions as ordered by the District Court since it raises an issue of irregularity in the District Court's proceedings. As correctly submitted by Ms. Manyanga, the District Court's records reveal that on 15th September 2023, the District Court ordered the appeal to be disposed of through written submissions. The schedule for filing the written submissions reads as follows; 11 " the appellant to file his submission by 2^ September2023, reply by the respondent be filed by 13fh October2023. Rejoinder ifany to be filed by 2Cfh October 2(fh October2023" Further, the court's revealed that on 25th September 2023 the appellant's advocate filed the written submission in support of the appeal and paid the filing fees vide ERV No.2452055, and on 19th October 2023, she filed in court a document titled " Re-joinder submission" and paid the court fees vide ERV No.24520587 dated 19th October 2023, in which she explained that the respondent had not filed her reply submission on 13th October 2023 as ordered by the Court and implored the court to hold that the respondent failed to prosecute the appeal and decide the appeal by considering the appellant's submission only. On the other hand, the Court's record reveals that on 17th October 2023, the respondent paid the filing fees for her reply submission vide ERV No.24520583. From the foregoing, it was evident that the respondent lodged her reply submission in court after the expiry of the time granted to her to file it as per the court order quoted earlier in this judgment. As correctly submitted 12 J by Ms. Manyanga, in composing its judgment, the District Court considered the reply submission filed by the Respondent out of time contrary to the Court order. Not only that, the District Court erred in ignoring the concern raised by Ms. Manyanga that the Respondent did not file her reply submission as ordered by the Court. In his submission, Mr. Mchaki did not submit this concern completely. He did not tell this court whether the respondent filed her reply submission within the time ordered by the District Court. Be as it may, the court's records reveal that the respondent's reply submission was filed out of time, which amounts to failure to prosecute the appeal. [See the case of Godfrey Kimbe Vs. Peter Ngonyani, Civil Appeal No.41 of 2014 and National Insurance Corporation (T) Ltd and Another Vs. Shengena Ltd, Civil Application No.20 of 2007 (both unreported)]. I agree with Ms. Manyanga that the District Court erred in considering the reply submission filed out of time. The same was supposed to be expunged from the court's records, and I hereby expunge it from the court's records. I shall deal with the remaining grounds of appeal conjointly as all are concerned with the division of the matrimonial properties. It is on record that in her testimony, the Respondent told the trial court that the Appellant 13 bought the land in Kisemvule and started construction of a house, which he did not finish before she married him. That is evidenced by the sale agreement for the Land in Kisemvule that was tendered in court and admitted as an exhibit for the Appellant's case. The controversy between the parties is on the development/improvement of the house at Kisemvule. The Appellant told the trial court that he bought the land in Kisemvule in 2013 and finished building the house therein every year before his marriage with the Respondent, whereas the Respondent testified that she gave the Appellant Tshs.2,000,000/= for improvement of the house in Kisemvule for their family to move to kisemvule as they were staying in a rented house. The money was used to renovate one room and build a temporary toilet and the family managed to move to Kisemvule into that house. By that time, the Appellant was unemployed. However, it is worth noting that none of the parties produced any documentary evidence to support their assertions on the construction or improvement of the house at Kisemvule. The only documentary evidence tendered in court in respect of the house at Kisemvule was the sale agreement for the land in Kisemvule. With the evidence adduced, the Appellant proved that he acquired the house at Kisemvule before marrying the Respondent. Also, I agree with the Respondent's 14 I I assertion that she paid Tshs. 2000,000/= for the improvement/ renovations of the house at Kisemvule since the appellant did not dispute that when he married the Respondent, they stayed in a house rented by the respondent and later moved to Kisemvule, I find the Respondent's narrations that the house in Kisemvule needed renovation before moving therein more I probable. It is worth noting that the proof in civil cases is on a balance of probabilities in which the court must weigh the parties' competing evidence and decide which one is more probable. [See the case of Ernest Sebastian Mbele Vs. Sebastian Sebastian Mbele and two others, Civil Appeal No 66 of 2019] The law holds that a spouse's contributions to acquiring matrimonial properties include the spouse's contributions to improving/renovating properties acquired before marriage [See the case of Faraja Nsemwa (supra). In addition to the above, the court must consider the extent of the spouse's contribution towards acquiring or improving the matrimonial property. [See the case of Gabriel Antmorodi ( supra)]. In this case, I have already said that I am convinced that the respondent contributed to improving the house at Kisemvule to Tshs.2,000,000/= as per testimony before the trial 15 I court. Under the circumstances, it is evident that the appellant's contribution in acquiring the house in Kisemvule is higher than that of the Respondent because he bought that land and built the house therein. The respondent contributed Tshs, 2000,000/= in its improvement. I am mindful that the respondent's contribution cannot be measured in cash only, as she stayed with the Appellant as his wife from 2019 to 2022.1 have noted that the lower courts did not consider the extent of the contribution of the Appellant towards the acquisition of the house in Kisemvule as the one who bought that land and started developing it by building the house in question before his marriage with the Respondent. Under these circumstances, his contribution is higher, and he is supposed to get a higher percentage in the distribution of that house. Concerning the remaining matrimonial properties, the distribution made by the lower courts is correct since the same were acquired during the subsistence of the marriage. The Respondent was the Appellant's wife and was employed, thus, she contributed to the acquisition of those properties. The Appellant's assertion that he bought the motorcycles for the money he obtained from a bank loan is not substantiated. Thus, I hereby vary the lower courts' orders as follows; 16 i) The House at Kisemvule shall be evaluated, and the appellant shall take 70% of the value of that house. The respondent shall take 30%. ii) The house at Kisemvule shall be auctioned to obtain the money for distribution between the parties. iii) Before the auction, each party shall have the option to compensate the other party for his/her share if he/she wishes. The lower courts' orders remain intact except for the abovementioned variations. Dated at Dar es Salaam this 25th day of October 2024. B.KTPHILLIP JUDGE 17