JUDGMENT Bonifasi Nyiriri vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA MATRIMONIAL APPEAL NO. 19493 OF 2024 (Arising from Mbinga District Court in Matrimonial Appeal No. 4600 of 2024.) BONIFASI NYIRIRI ……………..…..………………………………………. APPELLANT VERSUS MARIA SOWO ………………….….……………………………………….. RESPONDENT JUDGMENT Date of Last Order: 17 October, 2024. Date of Judgment: 23rd October, 2024. KAWISHE, J.: This is a second appeal filed by the appellant herein above named after being dissatisfied with the decision made by Mbinga District Court (the first appellate court). Originally, the suit arose from the Primary Court of Mbinga District at Kigonsera (trial court) where the respondent filed Matrimonial Cause No. 03 of 2023, against the appellant seeking for among 1 other prayers, the declaration that the parties were living under presumption of marriage and division of jointly acquired properties. After full trial, the trial court found the parties lived under presumption of marriage in accordance to the provision of 160(1) of the Law of Marriage Act (Cap 29, R.E 2019) and proceeded to order for the distribution of the jointly acquired properties. The appellant was aggrieved by the decision of the trial court and he preferred his appeal before the first appellate court where he partly succeeded. Still dissatisfied, he has filed an appeal before this court faulting the decisions of the lower courts on the order for the division of matrimonial properties, namely; a house located at Mnazi Mmoja Area, two business rooms located at Ulamboni area within Mkako Village in Mbinga District and soft drinks and motorcycle spare parts shops which were declared to be jointly acquired by the parties during their cohabitation. For easy of reference and clarity, I find it is important to reproduce the grounds of appeal as I hereby do: i. That the first appellate court grossly erred in law and in facts by ordering the division of the house located at Mnazi Mmoja at Mkako at the ration of 60% by 40% between the appellant and the respondent, respectively without giving reasons for the same while ignoring the appellant’s evidence adduced at the 2 trial court that the respondent had no any contribution in its acquisition as the same was built before the parties started to cohabit. ii. That the first appellate court grossly erred in law and in facts by ordering the division of two frames located at Ulamboni in Mkako Village 40% by 60% while the respondent in her evidence before the trial court did not testify as to how and to what extent she contributed to the acquisition of the same. iii. That the first appellate court erred in law and in facts by affirming the decision of the trial court regarding the division of the drinks shop and motorcycle spare parts shop without assigning reasons for the same, while the respondent did not specify in her evidence as to what extent she contributed to the said business. Also, neither the trial court nor the first appellate court did establish the value of the said shops as to reach to the decision for the payment of the sums ordered. In this appeal as it was before the lower courts, the appellant had the legal services of Mr. Moses Ndunguru, learned advocate whereas the respondent enjoyed the legal services of Mr. Constantine Wulstan Mhagama, also learned advocate. The parties prayed for the appeal to be disposed of by way of written submission. The prayer was granted by this court and ordered for the parties to file their submissions accordingly. Both parties complied with the orders of this court except for rejoinder of which the appellant preferred not to file. Arguing in support of the appeal, the appellant’s learned advocate submitted that, the first appellate court was not correct in ordering for the 3 division of the house located at Mnazi Mmoja, Mkako Village at the ratio of 60 percent by 40 percent between the parties without giving reasons for the same, while ignoring the appellant’s evidence that the respondent had no any contribution as the same was built before the two started cohabiting. He contended that, before the trial court the appellant testified that the house in question was built from May to October, 2014 while the two started living together in December, 2014. He argued that evidence shows that the respondent had no any contribution in the acquisition of the said house but the lower courts ignored that piece of evidence and ordered for the division of the said house at the ratio of 60% and 40% without assigning a good reason for the decision. To bolster his assertion, he cited the provision of section 114(2) of the Law of Marriage Act (supra) which provides that, before making the order for the division of jointly acquired property, the court must take into consideration the contribution of each party in its acquisition. He also cited the case of Gabriel Nimrod Kurwijila vs. Theresia Hassan Malongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (unreported). On the second ground of appeal, Mr. Ndunguru submitted that, the first appellate court erred when it ordered for the division of two the 4 frames (business rooms) located at Ulamboni area in Mkako Village at the ratio of 40 percent by 60 percent while the respondent did not testify at the trial court on her extent of contribution to their acquisition. He averred that, the trial court proceedings clearly show that, the respondent in her testimony told the court that, the business rooms (frames) were constructed in 2022 at the time she was not involved in the construction. He referred this court to page 9 of the trial court typed proceedings in which the respondent categorically told the court that she was not involved in the construction of the stated business rooms. The appellant’s advocate argued that, under such circumstances, the lower court erred in considering them as part of the jointly acquired properties and ordering for the division of the same. On the third and last ground of appeal, the appellant’s advocate faulted the first appellate court for affirming the decision of the trial court which ordered the appellant to compensate the respondent the sum of Shillings 150,000/= in respect of the soft drinks shop and Shillings 5,000,000/= for the motorcycle spare parts shop. While the respondent failed to prove her contributions in the acquisition and their values were not justified. He finally prayed for the appeal to be allowed. 5 On the other hand, the respondent’s learned advocate in his submission resisted the appeal and argued that, it is clear that in the division of matrimonial properties, the parties are awarded in accordance to their contribution in the acquisition of the properties. But before the trial court the respondent was trying to deceive the court by stating that those properties are owned by his father although they are registered in the name of the appellant. That, the appellant’s testimony that the house was built before cohabitation was not true. He further argued that, even if the court would have found that the house was built before they started living together, the respondent was entitled to get her shares. In that regard, he cited the provisions of section 114(3) of the Law of Marriage Act (supra), which provides that, assets acquired during marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. He invited this court to revisit the proceedings of the trial court in respect to the contribution made by the respondent in the acquisition of the house. Replying on the second ground of appeal on the division of two business rooms (frames) located at Ulamboni in Mkako Village at the ratio of 60% and 40%, the respondent’s learned advocate argued that, they 6 were jointly acquired as they were built by using the income generated from their joint efforts in their daily activities when they were living together as wife and husband. It was the respondent’s learned advocate’s view that the appellant’s allegation that the respondent was not involved was not correct. The respondent’s learned advocate countered the last ground of appeal. That the first appellate court erred when it affirmed the decision of the trial court on the order for the division of the soft drinks shop, motorcycle spare parts shop, while the respondent failed to prove her contribution in their acquisition. That, their values were not properly determined. It was the respondent’s learned advocate’s stance that, the lower courts’ decisions were reasonably made basing to the facts presented by the parties before the trial court. Finaly, he prayed for the appeal to be dismissed and decisions of the lower courts to be upheld. Having judiciously trailed the submissions made by the learned advocate from both parties, I find the appellant’s complaints in this appeal are in respect to the three properties which were considered by the lower court to be jointly acquired and distributed to the parties. The contested properties are; a house located at Mnazi Mmoja area, two business rooms 7 located at Ulamboni area within Mkako Village in Mbinga District and soft drinks and motorcycle spare parts shops. Before I immerse myself in discussing on the merit or otherwise of this appeal, I find it is important to state that, as it can be garnered from the records of the lower courts, when the matter was called before the trial court and the complaint read to the appellant, he admitted the claim and there was no dispute on the existence of the contested properties as jointly owned properties. Therefore, the appellant’s contention that the respondent never partook in the acquisition of the properties has no stand in this appeal. This court will only consider on whether the respondent had any contribution in their acquisition. It is trite law that, a burden of proof is upon a person who asserts on the existence of facts to prove that those facts exist as per section 110 (1) and (2) of the Evidence Act, Cap 6, R.E 2019. In civil matters, such fact is said to be proved when its existence is established by a preponderance of probability in accordance to section 3 of the Evidence Act (supra). It is in that respect, the Court of Appeal of Tanzania in Godfrey Sayi vs. Anna Siame as Legal Representative of the late Mary Mndolwa, Civil Appeal No. 114 of 2012 (unreported) held that: 8 "It is similarly common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on a balance of probabilities." Abiding to the principle laid down by the Court of Appeal in the excerpt produced above, while considering that matrimonial cases are among the civil matters, in the determination of this appeal at hand this court will be guided by the above principles. On the first ground of appeal, the issue is whether the respondent had any contribution in the acquisition of the house located at Mnazi Mmoja area at Mkako Village entitling the court to divide it at the ration of 60% by 40% between the appellant and the respondent. It is the appellant’s view that, the respondent had no any contribution in its acquisition as the same was built before the parties started to cohabit. The respondent has stated that, the trial court reached its decision that the house was jointly acquired since the evidence given by the appellant and his witness who is his father were not reliable as they testified that the house is the property of the appellant’s father while ownership of the same is in the name of the appellant. It is the respondent’s view that, even if the house was built before they started living together, section 114(3) of the Law of Marriage Act allows the court 9 to order for the division of the property even if they were acquired by one party but some improvement been made in their joint efforts. I have gone through the trial court’s proceedings to see if there is any tangible evidence to prove that the house was built before the parties started to live together. The testimony available at page 12 of the trial court’s typed proceedings, the appellant stated that the house built from May to October, 2014. That he got married in December 2014. DW2 in support of the appellant’s stance testified that the appellant and the respondent got married in December, 2014 but he does not remember when he constructed the house in question. Later he stated that the house was constructed from May to September, 2014. In contradiction, DW3 stated that he was the go between or matchmaker (mshenga) and he was involved in the marriage plan of the two in December, 2014 and they got married on 12th January, 2015. In his evidence DW4 stated that the house was built from May to October, 2014. When cross examined stated that at that time the appellant was single. The issue which is tempting the court is who is told the truth between the appellant and respondent on their marriage date. In fact, they know the exact date but this being a case it seems to be costly for any party to admit the truth of the matter. Now the 10 court is under trial. The respondent stated that they got married in January, 2014 but the appellant and DW2 claimed that they got married in December 2014. The go between stated that she proposed for the appellant in 2014 and they got married in 2015. This evidence is adding salt to the fresh wound. This court has to dispense justice no matter what is before it. To disentangle this knot, I decided to make simple calculations. The appellant and the respondent never disputed the age of their issues. That the first born in 2023 was 9 years old while the second born was 7 years old. At the same time their marriage lasted for 9 years as well. Page 1 of the typed proceedings of the trial court shows that the matter was called before the trial court for the first time on 22nd February, 2023. If you count back 9 years from February 2023 simply, it will take you to January 2014. If this court considers the evidence of DW4 who testified that they got married on 15th January 2015, their marriage has not lasted for the 9 years stated. With this simple reasoning I am of the view that, the marriage was contracted in January 2014 as submitted by the respondent. In addition, the appellant claimed that the house belonged to his father, contention which was supported by his father but they when cross examined they revealed that the same is registered in the appellant’s 11 name. This is depicted at page 14 and 18 respectively. He was duty bound to prove his allegation that the respondent for the 9 years they cohabited never contributed anything in the acquisition on improvement of the house in question. This is in accordance with the provisions of section 110 of the Evidence Act which states, I reproduced the same hereunder: “110. -(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” The law is very clear that for a person who desires the court to give judgment as to any legal right has to prove his allegations. In this appeal, the appellant before the trial court did not manage to meet the requirements of the above cited section. The evidence adduced contradicted his allegations. The Court of Appeal has in numerous decisions stated that, in determining the division of matrimonial properties, the court rely on the evidence of the parties. In the case of Tumaini M. Simonga vs. Leonia Tumaini Belanga (Civil Appeal No. 117 of 2022) [2023] TZCA 249 Tanzlii cited with approval the decision in Gabriel Nimrod Kurwijila 12 vs. Theresia Hassani Malongo (Civil Appeal No. 102 of 2018) the Court held that: "...when the court is faced with a predicament of division of matrimonial assets or properties, the extent of contribution is of utmost importance to be determined. In so doing, the court always rely on the evidence adduced by the parties to prove the extent of contribution." As per the principle accentuated in the case of Gabriel Nimrod Kurwijila vs. Theresia Hassani Malongo (supra) parties have to adduce evidence to show that one, they cohabited, no disputed that the appellant and the respondent cohabited; second, they acquired the properties jointly, the respondent claimed that she was a house wife and engaged in small business to support the appellant; and third, the extent of contribution, the respondent submitted that they farmed and traded the grain to advance their investments and she supported the appellant in building the house in question. At page 9 of the proceedings the respondent stated that during the construction of the house, she was assisting the appellant with business activities. I am aware of the fact that when deciding the cases like this appeal, the court is called upon to employ wisdom in line with the law while considering the evidence adduced by both parties. This has been 13 necessitated by the fact that, failure to deploy the principle of this Court in celebrated in the case of Bi Hawa Mohamed vs. Ally Seif [1983] TLR 32 a great number of women will be left with nothing once they are divorced or separated from their husbands or cohabitants. I am also mindful to the principle that court’s decisions in division of matrimonial properties has to take into consideration the extent of contribution by each in the acquisition of the matrimonial properties. Since the appellant did not adduce an evidence showing that the properties were acquired before their cohabitation, I find that the lower courts findings that, the appellant’s testimony was not reliable and aimed to conceal the fact that the house was acquired by the parties. Thus, the lower courts’ decisions that the house was to be divided to the parties were correctly made. The first appellate court ordered for the division of the house that, 60% of the value of the house to be given to the appellant and 40% to be given to the respondent. I find no reason of departing from the orders or disturbing the order given by the first appellate court. Thus, the house located at Mnazi Mmoja area at Mkako Village within Mbinga District is to be divided among the partied as ordered by the first appellate court. Hence, the first ground of appeal fails. 14 Reverting to the second ground of appeal in respect to the two business rooms (frames) located at Ulamboni in Mkako Village, from the submissions made by the parties in this appeal, it is clear that they were constructed while the parties were living together. The appellant is only challenging on the extent of contributions made by the respondent in their acquisition. The respondent, stated that the 6 business rooms were built in 2022 by using the money obtained in their business in which she cooperated with the appellant in running the same. When cross examined the respondent replied that the 6 business rooms were built in 2022 when the appellant had stopped sharing information with her. That in my view, does not mean that the respondent had no contribution. As long as they were living together, she stated that she contributed in acquisition of their matrimonial properties through small business and her labour. She took care of their children which is the most crucial contribution in their development. See Bi Hawa Mohamed vs. Ally Seif (supra). In such circumstance, I find, as the first appellate court did, the respondent was entitled to be given what the court gave her. In that regard, this court is satisfied that, the wording of section 114(2) of the Law of Marriage Act (supra) and the principles stated by the 15 Court of Appeal in case of Gabriel Nimrod Kurwijila vs. Theresia Hassan Malongo (unreported) were properly considered trial court and the first appellate court. As a result, the second ground of appeal has no merit and it is accordingly dismissed. The third ground of appeal is on the division of the soft drinks shop and motorcycle spare parts shop. The trial court ordered for the appellant to remain with the shops and make some compensations to the respondent. The appellant was ordered to compensate the respondent in respect to the soft drinks shop and motorcycle spare parts shop the sum of Shillings 150,000.00 and Shillings 5,000,000.00 respectively. It is the appellant’s contention that, the lower court erred in making such order. That the respondent failed to prove the extent of contributions made in those businesses. In his view, the value of the two shops were not determined before making such orders. The respondent in her reply has submitted that the values of the shop were established by the parties during trial before the trial court. Having these competing submissions, this court could not afford folding its hands. It had to peruse the first appellate court’s proceedings and judgment in order to satisfy itself on the allegations. At page 5 of this 16 court found that the first appellate court upheld the trial court’s decision. I had to cross to the trial court’s proceedings to ascertain the matter. At page 8 of the proceedings the respondent stated that she is a peasant and a small businesswoman. That whatever she got in the business and the farm they planned together with the appellant. That she assisted the appellant in the business. She added that, the capital of their business was from their farming proceeds. When cross examined she replied that the spare parts shop was established before she got married. That whatever she got from her business was added to the capital. The appellant claimed that, in the judgment of the trial court was wrongly upheld by the first appellate court without assigning reasons to the decision of compensating the respondent. It is a trite law that any decision has to be accompanied by reasons. Every judgment should state the facts of the case, establishing each fact by reference to the particular evidence by which it is supported; and it should give sufficiently and plainly the reasons which justify the finding. This is in accordance with Order XX Rule 4 of the Civil Procedure Code [Cap 33 R.E 2019] which provides: “A judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.” 17 This position of the law was amplified in the case of Yusuph Abdallah Ally vs. DPP, Criminal Appeal No. 300 of 2009 (CAT) (unreported) Abu bakar I.H. Kilongo and Another vs. R, Criminal Appeal No. 230 of 2021 (unreported) in which the Court of Appeal cited with approval the case of Amirali Ismail vs. Regina, 1 T.L.R. 370 where it was observed that: “In our view, the judgment is fatally defective; it leaves contested material issues of facts unresolved. It is not really a judgment because it decided nothing, in so far as material facts are concerned. It is not a judgment which can be upheld or upset. It cannot be rejected; it is in facts a travesty of a judgment.” The excerpt above binds lower courts in making decision. That every decision has to be with a reason. This appeal at hand, the appellant lamented that, the trial court did not give a reason for its decision for the appellant to compensate the respondent. I have taken time to go through the judgment of the trial court and that of the first appellate court but found nothing to disprove this ground. Therefore, it is the considered view of this court that, the lower courts erred in ordering the appellant to compensate the respondent without ordering for the valuation of the shops and assign reasons to the decision. Therefore, the orders given to the respondent in respect to the two shops were not properly made. Subsequently, this court orders that the two shops be valued accordingly 18 and be divided to the parties at the ratio of 60% for the appellant and 40% for the respondent as they were acquired jointly. In addition, both parties agreed that soft drinks shop was first run by the respondent before she was sidelined by the appellant on a claim that she failed to run the business. For that reason, it is my view that she had a contribution of same through running and maintenance of the shops, accordingly, she deserves a division thereto. On the motorcycle spare parts shop, the respondent averred that farm products were sold and they planned what to do. That they used the money from farm products and her small business in toping up their business capital. This is clear that the respondent had contribution to the shop. Consequently, she deserves to benefit from the division as well. Thus, the third ground of appeal succeeds. In the final event, based on what I have endeavored to discuss herein above, the appeal is partly allowed. For avoidance of doubt, the third ground of appeal has merit. The shops be valued accordingly, then be shared to parties in the ratio aforementioned. Either party can compensate the other by the required ratio in order to remain with the shop or shops. This being a matrimonial dispute, each party must bear his or her own costs. 19 It is so ordered. DATED and DELIVERED at SONGEA this 23rd day of October, 2024. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Bonifasi Nyiriri in person and in the absence of the respondent, Maria Sowo. Right of appeal explained. E. L. KAWISHE JUDGE 23/10/2024 20