20150630 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM PC. CIVIL APPEAL NO. 72 of 2014 (Originating from Morogoro District Court Civil Appeal No. 52 of 2013) DANIEL NTAGAZWA ... ...................................................APPELLANT VERSUS FORTUNATA F. NJALALE ............................................ RESPONDENT JUDGMENT MKASIMONGWA, J. In the Primary Court of Morogoro District at Morogoro Urban FORTUNATE FATUMA, petitioned for divorce against DANIEL NTAGAWA. She also prayed the court for and order distributing, matrimonial assets and maintenance of the marriage issues. The petition was successful. The trial court granted the prayer for divorce. It also awarded the petitioner with 40% of the value of the matrimonial house situate on Plot No. 380 "DD" Kindondolo "B". She was also awarded with two beds with their mattresses, a refrigerator, one coach set and a cupboard whereas the Respondent, Daniel Ntagazwa was given one bed with its mattress, a coach set, a Wardrobe and a 1V. As regards to maintenance of the children, the court had this to say:- " ... Wadaawa wana watoto watatu nao ni Atufina (20Yrs). Emmanuel (18yrs) na Yohana (8Yrs) ... Atufina na Emmanuel wanasoma shule za bweni. Hivyo tumeona kutoingilia masomo yao hivyo waendelee katika shule hizo ila wakati wa likizo watakuwa wanaenda kwa baba yao na mama yao na matunzo yao wadaawa wote watawajibika kuwatunza. Kuhusu Yohana ... aendelee kukaa na mdai kwani huko ndiko atakuwa na maslahi mazuri lakini wakati wa likizo awe 1 anaenda kuwatembelea mdaiwa (baba yake). Kuhusu matunzo yake mdai ameeleza kuwa anaweza kumtunza hivyo mdai amtunze lakini mdaiwa naye kama baba basi anatoa matunzo anapoweza" The Respondent was dissatisfied by the orders of the court. [He appealed to the District Court challenging them on grounds that:- 1. The trial court did not consider to the appellant's submission to the effect that there is a house situated on Plot No. L/Q707 at Mnya Kongo in Kongwa District that the said structure was constructed out of the proceeds of couple's join efforts. 2. The trial court erred when it ordered for evaluation; sale and division of proceeds of the family residential premises situate a Plot No. 380 Block "DD" Kindondolo B, Morogoro Municipality. 3. The trial court erred when it regarded all three issues of the marriage as children. 4. The trial court erred when it ignored the whole list of the matrimonial assets subject to division submitted by the appellant. 5. The trial court did not take into consideration the predicaments of the retired and income less Appellant when making the orders. In deciding the Appeal the District Court found there was no evidence given at the trial court by the Appellant showing his contribution in acquiring the house at Kongwa ought to have been given under Regulation 1 (2) of the Primary Courts (Evidence) Regulations, GN. No. 22 of 1964. Basing on the decision of the Court of Appeal of Tanzania, in the case of ISIDORY S. BALAGA Vs CHOZALIMN BALAGA, CIVIL APP. NO. 41 OF 1991, at Dar es Salaam (unreported) the district court found that in the whole issue of division of matrimonial assets children are subsidiary consideration. It opined that the court should essentially consider the spouse's contribution in acquiring the properties. After having being satisfied by the evidence adduced that the house at Kindondolo, was acquired during the substance of the 2 spouses' marriage and that there was ample evidence adduced showing that the Appellant had contributed more than the Respondent in acquiring the house, the court held that it was correct when the trial court ordered for the distribution of the value of the house to the Appellant and Respondent at 60% and 40% respectively. Although there were many items listed as matrimonial properties, few existed at the time of termination of the marriage as such; the 1st Appellate court concurred with the trial court when it ordered for division, among the parties, of only those items that existed at the time of termination of the marriage. The District Court found no merit in the appeal. It consequently dismissed it, which decision is not agreeable by the Appellant who has preferred this appeal. He has the following grounds; that:- 1. The District Court erred when it failed to hold that the case was res-judicata. 2. Since the Respondent had deserted the Appellant sometime in 2006 and got married to one Bibyansime, she lacked capacity, locus stand and cause of action to institute the purported divorce proceedings against him. 3. The District Court erred when it failed to find in his favour the claim which was admitted by the Respondent that the house at Kongwa was acquired during the subsistence of their marriage. 4. The District Court erred when it found all assets (save for the house at Kongwa) independently acquired by the couples during cohabitation as subject to division irrespective the manner they were acquired by the parties. 5. The District Court erred when it subjected the House at Kindondolo Morogoro, which was acquired wholly from the Appellant's pension emoluments to division as a matrimonial asset. 6. The District Court erred when it labeled all marriage issued as children. 7. The District Court erred when it assumed non-availability of all properties listed as matrimonial ones. In short the facts of the case are as that sometime in 1993 the Appellant and the Respondent contracted a civil marriage. In 2004 they stood before the alter blessing their marriage under Christian rites. Their marriage passed into tribulations and 3 '\ sometime in 2004, they deserted each other. In 2006 the Respondent was transferred to Kongwa after she had been promoted to the post of the Tanzania Teachers' Association Secretary. Whereas the Appellant is married to another wife, the Respondent has new husband. Sometime, their house was about to be sold from a debt and the Respondent paid Tshs. 1,200,000/= and rescued it from being sold. In their marriage, the two were blessed with three children and acquired various properties including 3 Beds with mattresses, 2 sets of coach, two wardrobes, one cupboard, a Television, a Refrigerator and a house at Msufini Morogoro. The Respondent was an office attendant and she was also dealing with petty businesses and poultry whereas the Appellant was employed in the Public Service. Going by the records, it is clear that the grave man of this appeal is not the divorce granted by the courts below. Actually the courts were justified to grant the divorce it. It is in the evidence that as from 2004 the parties had deserted each other. It is clear that there is no intention of them to reunite in their marriage. Each of them has decided to have a partner in life. Whereas the Appellant has "wife" the Respondent has a "husband". These facts, having been proved, prove that the marriage between the parties has been broken beyond repair. As to whether the matter was Re-Judicata it is clear from the record that it was not pleaded in the trial court or even discussed in District Court that the matter before the court was re-judicata. It is a new invention therefore; by the Appellant to plead Res-judicata at this stage of the matter. As such, the plea of Res-judicata cannot be entertained. This also applies to the plea that the Respondent had no locus stand in the matter. It was not shown by pleading and the evidence adduced that the Respondent had no locus stand in the matter. The courts below therefore did not deal with that point now raised. The same cannot be therefore entertained. As regards to ground No. 3 it is true that the House at Kongwa (if any) was acquired during when the parties' marriage had not been terminated. There is evidence 4 I ' to the effect that the same was acquired during when the parties had deserted each other. It is not the existence marriage that entitles a spouse to a share of the matrimonial property, but it is his or her contribution to the acquisition of the property be it in the form of money, material, or work. The appellant did not tell the court of his contribution to the acquisition of the house of Kongwa. As such, it was proper when the courts considered him not entitled to a share to the house. It is alleged by the Appellant that the house at Kindondolo Morogoro was wholly acquired by the Appellant. That has been the foundation of the 5th ground of appeal which faults the decision of the District Court for distributing it among the spouses as the matrimonial asset. It is evident from the adduced evidence, that the house was acquired at the time the parties were cohabiting. According to the Respondents' testimony the house was about to be auctioned so that it pays for the loan credit the Appellant had obtained. It is the Respondent · who rescued it from being sold. Sometime, the Appellant gave the house, by oath to the Respondent and the children. If the house will not be taken as the matrimonial one, the appellant will stand a loser for the evidence may lead the court in finding that as from the date of the Affidavit sworn by the Appellant giving the house to the Respondent and the children the house became the property of the respondent and the children. The lower court found it as a fact the house belongs to the spouses and apportioned it as it did. The respondent did not challenge the finding and the distribution of the house. I find no reason to interfere with the findings of the lower court. This finding also serves the purpose of responding to ground No. 4 of the Appeal. As regards to the complaint that the court did not distribute the properties listed in "Exhibit U2", the court considered this when it said:- "Tunaangalia hati hiyo na kuona vitu hivyo vilivyoorodheshwa na kuona kuwa tukifuata hati hiyo tunaweza kuzua mgogoro ambao siyo rahisi kuutatua ... Ni wazi vitu hivi tangu mwaka 2003 hadi 5 sasa 2013 zaidi ya miaka kumi siyo rahisi kuwapo ... Tunaona busara kugawa mali ambazo mdai ameorodhesha ambazo mdaiwa hakuzipinga" It is my considered view that the trial court had given sound reasons to its decision which reasons I agree with. In his testimony, the Appellant showed that to Kongwa, the Respondent took with her just a Bed. He stated is follows in evidence" "Mdai alihamishwa kikazi kwenda Kongwa na tuliagana kwa amani na nilimsindikiza hadi stendi. Baada ya wiki moja ndiyo aliniambia nimesahau kitanda cha kulalaia na nikamtumia" This means that the listed properties all remained in their house at Morogoro. Since the Respondent did not claim for them it can be reasonably presumed that she allows them being owned by the appellant in which case the late is not expected to claim for them. In my total consideration of this appeal I find no merit in it. It is therefore dismissed with costs. Dated at Dar es Salaam this 30th day of June, 2015. ,~Y.>\JR-f-~-:s.~ / /; /(ft- JUDGE t ::I: . \~··':-,..,· 30/6/2015 ·,, . . .,-=.-- 6 Date: 30/6/2015 Coram: Mkasimongwa, J Parties: Appellant: Present Respondent: Absent C.C. Mrs Kaminda Court: Judgment delivered in Chambers this 30 th day of June, 2015 in the presence of the Appellant and in the absence of the Respondent. Right of Appeal explained. E.~~~- JUDGE 30/6/2015 7