PC Civil Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 8610 OF 2024 (Arising from Matrimonial Appeal No. 08 of 2023 from District Court of Masasi at Masasi and Originating from Lisekese Primary Court on Matrimonial Cause No. 22 of 2023) BENSON GWEJUNG MWAKIPESILE............................................... APPELLANT VERSUS MAGRETH EDWARD NG'ONYE........................................................RESPONDENT JUDGMENT 12th June & 18 July, 2024 MPAZE, J.: The respondent, Magreth Edward Ng'onye, petitioned for divorce and division of matrimonial properties against the appellant, Benson Gwejung Mwakipesile, through Matrimonial Cause No. 22 of 2023 before Lisekese Primary Court (henceforth the 'trial court'). Upon hearing the petition, the trial court granted the decree of divorce and ordered the division of matrimonial properties. i The respondent was awarded one house and a plot of land, while the appellant was awarded two houses and a plot of land. As for the household items, each party was awarded 50%. Being dissatisfied with the order of division of matrimonial properties, the appellant appealed to the District Court of Masasi (hereinafter the 'first appellate court7) via Matrimonial Appeal No. 08 of 2023. Having heard both parties, the first appellate court upheld the trial court decision. Again, the appellant was not amused with the first appellate court decision, therefore, he filed this second appeal on the following grounds; 1. That the learned appellate magistrate of Masasi District erred in law and facts by holding that one house be taken by the respondent without considering that all houses were acquired by the sole efforts of the appellant and no improvement was done by the respondent. 2. That the learned appellate magistrate of Masasi District Court erred in facts by holding that there are two plots of land and each party to take one plot without ascertaining its existence. 3. That the appellate magistrate of Masasi District Court erred in law and facts by excluding one car from the list of matrimonial properties 2 without considering that it was acquired during the subsistence of marriage and the appellant contributed 7,000,000/=. 4. That the learned appellate magistrate of Masasi District Court erred in law and fact by dividing home appliances equally to the parties herein without ascertaining the existence of the same. 5. That the learned appellate magistrate of Masasi District Court erred in law and facts for failure to evaluate evidence properly, hence arriving at an erroneous decision. At the hearing of this appeal, both the appellant and respondent appeared unrepresented. The appeal was disposed of orally. Supporting his appeal, the appellant explained that after being dissatisfied with the decision of the trial court and the first appellate court, particularly on the issue of the division of matrimonial properties, he decided to appeal to this court. The appellant's complaints on this issue include the failure of both lower courts to consider that all three houses are not matrimonial properties. He also faulted the two lower courts for failing to consider the motor vehicle as 3 a matrimonial property. Additionally, he complained about the trial court's failure to find out that there were no utensils that deserved division. In explaining that the three houses are not matrimonial properties, he began by stating that the first two houses are his personal properties and not matrimonial properties. The appellant contended that he built the two houses while the respondent was schooling, questioning how the respondent could have contributed to acquiring those houses if she was studying. The appellant told this court to consider the evidence of PW3, who stated that from 1990 to 1994, she and the respondent were studying at Mkonge Secondary School, and PW1, who stated that she studied with the respondent at Ndikwa Teachers' College. From his submission, the appellant wanted this court to believe that the respondent had no contribution to the acquisition of matrimonial property because she was a student and thus did not contribute anything. Additionally, he emphasized that the respondent claimed in her testimony that she was a teacher. If this is the case, the appellant questioned when we could say the respondent supervised the builders to amount to her contribution in acquiring the said properties. 4 The appellant emphasized that the respondent did not contribute anything to both houses because she was studying, funded by his father. Thus, he requested this court to exclude those houses from the division as they were his personal properties and should not have been included in the division because they were not part of the matrimonial asset but rather his personal property. Regarding the third house that was awarded to the respondent, the appellant argued that he was the one who bought the plot from Dadi Ngalo, who was the respondent's fellow teacher at that time, and he had the offer that he tendered but it was not considered. He complained about the district court's act of awarding the house to the respondent on the grounds that the respondent contributed to its purchase and that she was an employee and a wife, without considering that she did not contribute to its acquisition and that they have been separated since 2016. From his perspective, he believed that due to their separation, she no longer deserved to be called a wife. The appellant continued that although he bought the plot a long time ago, it was not built until 2021 after he retired. Thus, he insisted that this house 5 also does not amount to matrimonial property. He expressed surprise at the respondent's claim of making some improvements in the said house, asserting that the house was built in 2021 and was still new. He questioned what improvements could have been made when the house was still new and why the respondent failed to bring forward any builders to prove this or even mention their names. Apart from the division of the houses, the appellant was also not satisfied with the division of other properties. Starting with the car, the appellant faulted the first appellate court for failing to observe that the car was also matrimonial property following his contribution of Tshs 7,000,000/= towards its purchase. Thus, he prayed that this car also be included as part of the matrimonial property subject to division. Regarding the plots of land, the appellant argued that he only purchased one plot, not two as stated in the judgment. He added that the plot is located in Nyasa West, and he bought it from Patrick Soko. He insisted that the respondent did not contribute to its acquisition. 6 Regarding the household items, the appellant argued that there are none left as they have worn out. He added that when the respondent moved to Nanyumbu, she took the household items with her. According to him, if the household items need to be divided, the respondent should bring back the items she took, and they will see their condition and if they can be divided or not. The appellant rested his submission by asking this court to carefully examine the evidence so that it can recognize the appellant's personal properties, including the house that was awarded to the respondent, property acquired after separation, and matrimonial property, and allow the appeal. In response, the respondent denied the appellant's allegations that she did not contribute to the acquisition of the two houses because she was in school when they were being built. The respondent did not deny being in school but said that even going to school to study teaching from 1994 to 1996 was due to the appellant's initiatives. 7 The respondent contended that they started living together with the appellant in 1993 in a rented house, and later they acquired plots and built two houses, which the appellant refers to as his personal properties. However, regarding the house that was awarded to her, she said that she was the one who bought the plot from the said Dadi for Tshs. 50,000/= and started construction using fired bricks. Later, the appellant demolished it and started rebuilding it with block bricks in 2010. Thus, she stated that the appellant's claims that she never contributed to the acquisition of the said properties are not true. Regarding the plots, she argued that they bought the Nyasa West plot together. She added that the appellant had already given the second plot to the child, and she had no problem with that. She agreed with the appellant that the remaining plot was the Nyasa West plot. Regarding the car, the respondent argued that the appellant never contributed to its acquisition because when she left, he never helped her with anything. She added that she bought it with her own money, and after purchasing it, she informed him, and he was happy to hear that. 8 The respondent concluded by stating that since 2011, each of them has been living their own lives independently. However, she emphasized that she contributed to the acquisition of all the properties that were divided and therefore prayed this court to dismiss the appeal. In rejoining the respondent's submission, the appellant reiterated his earlier submission and added that they separated with the respondent in 2016, not 2011, and maintained that he contributed to the acquisition of the motor vehicle, hence it should be subject to division. The appellant insisted that the plot in Nyasa West does not concern the respondent at all; it is his property. Having examined the rival submissions of the parties in light of the grounds of appeal, the main issue for determination for this appeal is whether this appeal has merit. As this is the second appeal, this court usually refrains from intervening in the concurrent findings of facts made by the lower courts unless there is a misapprehension of the evidence, miscarriage of justice, or a violation of some principle of law or practice. See the case of Amratlal D.M t/a Zanzibar Silk Stores v A.H. Jariwala t/a Zanzibar Hotel [19801 TLR 9 31, Bomu Mohamed v. Hamisi Amiri Civil Appeal No.99 of 2018, and Helmina Nyoni v. Yeremia Maqoti Civil Appeal No. 61 of 2020 (Both unreported). Having in mind the legal principle governing the second appellate court, this court now delves into the examination of the grounds of appeal in the standard expected as the second appellate court. In my determination of this appeal, I will discuss the first, second, third, and fourth grounds of appeal collectively as they are centred on one main complaint which is based on the division of matrimonial properties while the fifth ground of appeal will be argued separately. The major complaint in the issue of the division of matrimonial property by the appellant is the lower court's finding that the first and second houses are matrimonial properties while he claims they are his own personal properties. He was also displeased with the allocation of the third house to the respondent as he claims she contributed nothing to its acquisition. According to the trial court's record, after hearing the evidence from both sides, it reached the decision that the parties had three houses that amounted to matrimonial properties. The parties named the houses as the io first, second, and third houses. Therefore, in the course of determining the appellant's complaint, this court will describe the houses in terms of the numbers given by the parties themselves during the trial. In his submission, the appellant argued that the respondent has no contribution to the acquisition of the said houses and that they were not matrimonial properties. He stated in this appeal that the first two houses are his personal properties, and therefore, they should not have been part of the division of assets. However, as he continued with his submission, he also claimed that the third house was also his personal property. The main reason the appellant claimed all the houses are his personal properties is that, according to him, the respondent never contributed to the acquisition of any of the said houses. He argues that during the acquisition of the first and second houses, the respondent was studying, and for the third house, he built after retiring, meaning she did not contribute at all. On the other hand, the respondent claims that all three houses are matrimonial properties and that she contributed to their acquisition. At this juncture, it is pertinent to highlight what constitutes matrimonial properties. The term " matrimonial property' has not been defined under 11 the Law of Marriages Act Cap 20 R.E 2019. However, numerous decisions of the Court of Appeal have clarified its meaning. For example in the case of Bi Hawa Mohamed v. Ally Sefu [1983] TLR 32 the Court of Appeal provided insight. Also, in the case of Gabriel Nimrod Kurwijila v. Theresia Hassan Malonqo Civil Appeal No. 102 of 2018 (unreported), defining what matrimonial property entails the Court had this to say; ' The position in India, which we take inspiration from, is quite similar to that in our jurisdiction when it comes to interpreting the phrase 'matrimonial assets,' which, in our view, is similar to the phrase 'family assets' used in the Indian Act. They refer to those properties acquired by one or other spouse before or during their marriage, with the intention that there should be continuing provisions for them and their children during theirjoint lives.' [Emphasis added]. From the above definition, it is obvious that matrimonial properties constitute properties acquired by one or both parties during the subsistence of the marriage with the intention that there should be continuing provisions for them and their children. This also includes properties acquired before the 12 marriage by one party but have been substantially improved during the marriage by the other party or by their joint efforts. At the trial court, the appellant testified about when the houses were built and the respondent's whereabouts at that time. For ease of reference, let me paraphrase part of the appellant's testimony as reflected on page 12 of the trial court-typed proceedings; V bui/t the first house between 1991-1994 while the claimant was studying at Mkonge Secondary Schoo! in Lindi, the second house was built between 1995-1996 while the claimant was studying at Ndikwa Teachers' College, and the third house was built between 2003-2004 while the claimant was studying at the Continuing Education College in Nachingwea. Since then, I have done nothing as I was paying for the claimant's studies at the Open University, where I paid Tshs 900,000/= per year for about 4 years.' On page 14 of the trial court proceedings, the appellant testified further; Two years before retiring, I started finishing the second house, completing it on January 25, 2021. The third house was bui/t while the 13 claimant was studying in Nachingwea. I built up to the windows, and I gave the claimant money to buy the plot.1 When cross-examined, the appellant replied that he moved with the respondent to the first house in 2002. On the other side, the respondent testified that they built three houses together. She failed to state when the houses were built. From the appellant's reply in cross-examination, it is obvious he moved with the respondent to the first house in 2002, and they continued to live there as husband and wife until their dispute arose. As for the second house, the appellant stated he started to build the house before he started to live with the respondent, but he completed it two years before he retired in 2021, meaning the house was improved while his marriage with the respondent subsisted. Regarding the third house, the appellant stated he built it while the respondent was studying in Nachingwea, but he provided the money for the respondent to buy the plot. Considering this evidence and the definition of what constitutes matrimonial properties, it is clear that all three houses are matrimonial 14 properties because they were acquired during their marriage. The fact that the appellant failed to state the years the houses were built or who the builders were does not change the fact that the houses are matrimonial properties that should be involved in the division. Therefore, the appellant's claim that the houses are his personal properties has no merit. In addition to his claim that the three houses were not matrimonial properties, the appellant also complained that the first appellate court failed to recognize that the respondent never contributed to the acquisition of the said properties and thus erred in awarding the respondent the third house. From this complaint, the question is whether the first appellate court wrongly upheld the order of division of the third house to the respondent. The extent of contribution of each party in the acquisition of matrimonial properties is a predominant factor for consideration by the court when dealing with the issue of the division of matrimonial assets. That contribution may be monetary, property, or work towards the acquisition of those properties. See Section 114 (2) (b) of the Law of Marriage Act. The Court of Appeal in Tumaini M Simoqa vs Leonia Tumaini Balenqa Civil Appeal No. 117 of 2022 (unreported) elaborated on the 15 considerations for determining the extent of each party's contribution towards matrimonial assets; 'In essence, the extent of contribution made by each spouse is not restricted only to material or monetary contribution; it can extend to either matrimonial obligation or work or intangible considerations such as love, comfort, and consolation of the wife to her husband, the peace of mind, and the food prepared by the wife for her husband as observed by the High Court.' Given the above decision, it is obvious that the wife's contribution to domestic work is considered part of the contribution towards the acquisition of the property, as it has long been a legal position following the decision in Bi Hawa Mohamed v. Ally Sefu {supra}. It should be noted that the wife's contribution to fulfilling family responsibilities is not a measure for being given fifty per cent of the matrimonial properties. The key factor is the contribution of each party to the acquisition of the property, which assists the court in delivering the decision on how much each party should be entitled to the properties 16 acquired during the marriage. See also Yesse Mrisho v. Sania Abdul Civil Appeal No. 147 of 2016 (unreported). In deciding the division of matrimonial properties, the extent of the contribution is of utmost importance. The Court of Appeal in Gabriel Nimrod Kurwijila vs Theresia Hassan Malonqo (supra) insisted 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/ The important question is how the court can determine the extent of each party's contribution towards the acquisition of matrimonial properties. The answer to this question can be found in Gabriel Nimrod Kurwijila (supra), where it was stated that the evidence of the parties is what leads the court to determine the contribution of each party. The Court stated that; 'In resolving the issue of the extent of contribution, the court will mostly rely on the evidence adduced by the parties to prove the extent of contribution.' Thus, for this court to answer the appellant's complaint, it must consider the evidence presented by the parties in the trial court. 17 After examining the trial court records, I find that the appellant, when giving his evidence, explained the year he built the house awarded to the respondent. He also stated that the house was built up to the windows stage when the respondent was studying in Nachingwea, and regarding the acquisition of the plot, he gave the respondent money to buy it. On the other hand, the respondent in her evidence outlined the properties they jointly acquired with the appellant, including the house she was awarded. She further stated that she was a teacher and contributed to the purchase of building materials and the import of electricity into the house where the appellant was residing while the respondent was on duty. During cross-examination, the respondent stated that she bought the third house plot from Dadi Ngaro with her own money. She denied that the appellant sent her to buy the plot, claiming instead that the money came from her salary. Following the evidence presented by both sides, neither party tendered sufficient evidence to prove their extent of contribution to the acquisition of the third house. Both parties claimed to have bought the plot but failed to 18 provide proof of purchase, details of the purchase price, or testimony from Dadi Ngaro. The appellant claimed to have submitted the plot offer as evidence, but the trial court records indicate that he never formally presented it as an exhibit, and it is not included in the court's records. Additionally, neither side detailed the cost of construction or how the funds were obtained to complete the construction, which would allow the court to determine each party's contribution. Regrettably, both parties failed to provide adequate evidence to prove their contributions to the acquisition of the house. Therefore, the appellant cannot fault the first appellate court for concurring with the trial court's findings regarding the house. Given that the respondent was a teacher earning a salary and fulfilling her duties as a wife, there is no reason to disturb the concurrent findings of both the first appellate court and the trial court, which awarded her the third house while the appellant was awarded two houses. Thus, the appellant's complaint regarding the third house is without merit. 19 Secondly, regarding the car, which was not divided as matrimonial property, the appellant claimed to have contributed Tshs. 7,000,000/= towards its purchase. He testified that he gave the respondent Tshs. 7,000,000/= to buy the car after their first car, a Toyota Stalled T127 ASK, which he had contributed to, was involved in an accident and subsequently sold, with the proceeds being equally divided between them. During cross-examination, he mentioned the car's number asT887 CUJ Rav 4 but admitted that he did not know where the respondent bought it and that the motor vehicle card bears the respondent's name. The issue of whether the car was matrimonial property arose during the appellant's defence. The respondent, who petitioned for the dissolution of the marriage and division of matrimonial properties, did not list the car as part of the matrimonial assets. According to the appellant's testimony, apart from his claim of contributing Tshs 7,000,000/= towards the car's purchase, there is no further evidence to support that the car meets the criteria to be considered a matrimonial asset subject to division. Thus, the appellant's complaint on this issue is unfounded. 20 Thirdly, regarding the distribution of plots, the appellant alleged that there is only one plot located in Nyasa West, which he bought from Patrick Soko, and that the respondent did not contribute anything. The respondent denied the appellant's claim, stating that they bought the plot together. She also admitted that only one plot remained because the other plot had already been given to their children, indicating that they originally had two plots. After carefully considering the evidence presented by both parties at the trial court, I find that the respondent included both plots as part of the matrimonial properties. The appellant had the opportunity to cross-examine her but chose not to question the existence of these plots. Consequently, he implicitly agreed with the respondent's assertion of their joint ownership of two plots. Furthermore, the appellant did not address the issue of the plots in his testimony. It was expected that he would provide evidence that only one plot existed, but he failed to do so. Therefore, the first appellate court was justified in affirming the trial court's decision to include both plots in the division of properties, distributing them equally. 21 Regarding the appellant's claim that one of the plots was given to his child, this argument is considered new as it was not previously discussed in either of the lower courts. Hence, I will not entertain it and will uphold the decisions made by the trial and the first appellate courts concerning the division of these plots. Moving to household items, the appellant contends that there are no remaining utensils, stating that the respondent left with the bed, mattress, and some utensils. He further argued that these items should be returned for evaluation before distribution. However, the respondent did not address the issue of utensils in her testimony. Reviewing the trial record, it is clear that she listed household items as matrimonial property, and the appellant did not dispute this during cross­ examination, effectively agreeing with her claim. In his testimony, the appellant acknowledged that the respondent had left with some household items. However, this does not imply that no items remained, which is why the trial court appropriately divided them as matrimonial property after verifying their existence. Therefore, his complaint lacks merit. 22 Based on the above discussions, I find that the first, second, third, and fourth grounds of appeal lack merit and are dismissed. Regarding the fifth ground of appeal, where the appellant argues that the first appellate court did not properly evaluate the evidence, I have examined the first appellate court's judgment, particularly pages 5, 6, 7, and 8, and find that Magistrate adequately examined and analyzed the evidence as required for the first appellate court. Therefore, this issue is also dismissed for lack of merit. In Upshot, this appeal is found to be without merit and is consequently dismissed. Considering the circumstances of the case, no order as to costs is made. It is so ordered 23 Court: The Judgment has been delivered today in the presence of the 24