DISMAS NDYONGO NTIGAWA VS RENATHA PASIES NDIMGWANGO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA PC. MATRIMONIAL APPEAL NO, 6799 OF 2024 (Arising from the Decision ofTabora District Court in Matrimonial Appeal No. 09 of 2023, Originating from Isevya Primary Court in Matrimonial Cause No. 27 of2023) DISMAS NDYONGO NTIGAWA.... ........ APPELLANT VERSUS RENATHA PASIES NDIMGWANGO................. . RESPONDENT Date ofLast Order: 28.08.2024 Date ofJudgment: 01.10.2024 JUDGMENT KADILU, J, The appellant and respondent were the residents of Kigoma who started living together in 1998 under customary marriage. Exhibit DN1 displays that before they started cohabiting in 1998, the appellant had a subsisting Christian marriage contracted in 1991 with one Adela Polisi. In 2002, the parties herein shifted from Kigoma to Tabora leaving Adela in Kigoma, Adela passed away in 2014 leaving behind two issues of marriage. In 2020, the appellant and the respondent contracted a Christian marriage as evidenced by Exhibit RP1. When they married, the respondent had two children with another man. The appellant and respondent were blessed with five children during their union. It appears their marriage went on well just shortly as in 2021, the relationship started to go sour. The respondent left the matrimonial homeand went to stay in another matrimonial house. In 2023, she petitioned for divorce and division of matrimonial assets allegedly because the appellant became adulterous, was beating her, and stopped maintaining the family. i The appellant refuted all the allegations against him and claimed that he still loved the respondent but she had become stubborn making it difficult for him to live with her. Regarding matrimonial properties, the appellant contended that he acquired some of them with his deceased wife before he married the respondent. On her side, the respondent stated that when they shifted to Tabora, they left all the properties in Kigoma and started everything afresh in Tabora. Having heard both sides, the trial Magistrate decided the case in favour of the respondent. He dissolved the marriage as prayed and ordered the division of matrimonial properties at the rate of 70% by 30%. Dissatisfied with the division of matrimonial properties, the respondent successfully appealed to the District Court of Tabora. The Court varied the division from 70% by 30% to 50% by 50%. The variation aggrieved the appellant hence, he preferred the present appeal to this court armed with the following grounds: 1. That, the learned Resident Magistrate erred in law and fact by vacating and revising the order of Isevya Primary Court which divided matrimonial properties in a share of 70% by 30% to the appellant and respondent respectively. 2. That, despite undisputed evidence from the appellant that some of the matrimonial assets were acquired during the subsistence of his first marriage with the deceased wife, the learned Resident Magistrate erred in law and fact by disregarding such vita! evidence. 3. That, since the respondent did not lead any evidence in proving her contribution towards the acquisition ofmatrimonial assets, the learned Resident Magistrate erred in law and fact by disregarding the findings 2 of the trial Court which had an opportunity to assess the credibility of the witnesses. 4. That, the learned Resident Magistrate erred in law and fact by ignoring the evidence by the appellant hence, failed to decide the case on the balance ofprobabilities in favour of the appellant. The appellant prayed for the court to allow the appeal by quashing and setting aside the decisions of the District Court and upholding the decision of the trial court with costs. The respondent did not file a reply to the petition of appeal. On the day of the hearing, the parties appeared in person as they had no legal representations. Submitting on the 1st ground of appeal, the appellant stated that the District Court wrongly divided matrimonial assets in the share of 50% by 50% without considering that some of those properties he acquired jointly with his deceased wife. He argued that the respondent did not establish her share of contribution in the acquisition of the said properties to entitle her to a share of 50%. The appellant contended that the children of the deceased wife have a share of the inheritance in the properties as they were acquired by their deceased mother. Concerning the 2nd ground of appeal, the appellant submitted that he attached evidence showing the list of properties acquired by joint efforts with his deceased wife but in the District Court's division of properties, the evidence was not considered. He explained that he sold some of the properties acquired before the marriage with the respondent and purchased other properties but the evidence was ignored by the District Court when it ordered 50% by 50% distribution. 3 About the 3rd ground of appeal, the appellant elaborated that the respondent did not present evidence of her contribution towards the acquisition of the properties so, the District Court erred to overturn the decision of the primary court which had an opportunity to assess the credibility of witnesses. On the 4th ground, the appellant asserted that the district court's decision did not abide by the legal rules because it is unfair to order 50% by 50% share without evidence of the respondent's contribution. Responding to the 1st ground, the respondent asserted that the District Court did not error in overturning the decision of the primary court because the appellant prayed for the District Court to order 50% by 50% share of the property. She elaborated that the appellant did not sell any property he acquired with his deceased wife as they left them all in Kigoma in 2002. On the 2nd ground, the respondent stated that the appellant did not present any evidence to prove that he had some properties acquired jointly with his deceased wife. About the 3rd ground of appeal, the respondent submitted that the appellant lived with her from 1998 to 2022 so, that is a sufficient contribution towards the acquisition of the properties as both were unemployed and were living by farming together. According to her, the District Court was correct to order 50% division because the appellant did riot prove that he acquired the properties alone. Concerning the 4th ground, I submit that the District Court was correct to order 50% by 50% share because the appellant did not give any tangible evidence that he acquired the properties alone or with another woman. She prayed for the court to dismiss the appeal with costs 4 by upholding the District Court's decision that Ordered the division of matrimonial assets in the share of 50% by 50%. in a. brief rejoinder, the appellant refuted the allegation that he prayed for 50% by 50% division of matrimonial properties. He insisted that he started living with the respondent in 2004 not in 1998 as alleged by the respondent. He argued that the respondent used him too during the entire time they lived together so, there is nothing to blame him. I have keenly examined the grounds of appeal, records in the case file, and arguments for and against the appeal. I find the issue for determination is whether the appeal is meritorious or otherwise. In my determination, I will consolidate the first, third, and fourth grounds of appeal because they are intertwined. I am not losing sight of the fact that this is the second appeal and as a general rule, this court is discouraged to interfere with the concurrent findings of facts by the two courts below unless the findings have been reached in a misapprehension of facts or wrong interpretation of law. Starting with the consolidated grounds of appeal, the appellant complains that the District Court Magistrate erred in ordering the division of matrimonial assets in a share of 50% by 50% disregarding that the respondent did not prove her share of contribution towards the acquisition of the said properties. Furthermore, the appellant was adamant that his evidence was sufficient for the first appellate court to find that he did not jointly acquire some of the properties with the respondent. I should state here that the trial and appellate courts' records are silent about the court's determination of each party's share of contribution towards the acquisition of the properties before ordering the division. Section 114 of 5 the Law of Marriage Act [Cap. 29 R.E. 2019] empowers the court when granting a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts. In exercising these powers, the court is required to consider inter alia, the extent of the contribution made by each party in money, property, or work towards the acquisition of the assets. In Shomari Matambo v. Shamilia Ally, Civil Appeal No. 149 of 2019, the court held that for an asset to be regarded, as a matrimonial asset, a party making the assertion has to prove that the respective asset was acquired or substantially improved during the subsistence of marriage and through joint efforts. Thus, the division of matrimonial property is not a matter of equal share but entirely based on the extent of contribution in terms of work, money, or property. The same must be properly assessed and determined by the trial court before it can order an equal division of the assets. In the instant appeal, the respondent told the trial court that they jointly acquired two houses, nine acres of land, six plots, a half-constructed house, a motorcycle, and four pigs during the marriage. She, did not, however, give details about when the said properties were acquired, in whose name they are, or tender any evidence to show her contribution towards the acquisition of the assets. A mere assertion that they own the listed properties is not sufficient to show that the same are matrimonial assets and that the respondent is a joint owner thereto. She ended up lamenting that they lived together for a long time and they were both farming hence, they acquired all that they had jointly. 6 Like the respondent, the appellant did not establish his share of contribution towards the acquisition of the contested assets. He maintained that he acquired some of the said properties with his deceased wife but he could not specify those properties. He testified that he sold his assets in Kigoma and used the proceeds to purchase some properties in Tabora. Nevertheless, he did not identify the properties in Tabora which were acquired by using the proceeds of the sale of assets located in Kigoma. Since none of the parties was able to establish his/her share of contribution towards the acquisition of the alleged assets, I have nothing to fault the findings by the first appellate court that the properties were acquired jointly. The appellant complains that the first appellate court wrongly disturbed the findings of the trial court which had an opportunity to assess the credibility of the witnesses. It has to be remembered that although the courts are encouraged to incline towards equality of division, in exercising powers of the distribution of matrimonial assets, the courts are also required to consider the factors laid down under Section 114 (2) of the Law of Marriage Act, which include the extent of the contributions made by each party. Thus, the 1st, 3rd? and 4th grounds of appeal are dismissed for want of merits. Concerning the 2nd ground of appeal, the appellant laments that though he proved that he acquired some of the matrimonial assets during the subsistence of his first marriage with the deceased wife, the learned Resident Magistrate disregarded such vital evidence. I have perused the entire proceedings of the trial court and found nothing relating to the alleged proof. In his testimony, the appellant only presented evidence of his previous 7 marriage by tendering a certificate, Exhibit DN-1. Nevertheless, the mere fact that the appellant had a valid marriage with his deceased wife is not automatic proof that he acquired the assets jointly with her. The appellant was expected to segregate between the assets jointly acquired with the deceased wife from those acquired jointly with the respondent. As pointed out, this was not done in the instant matter hence, the 2nd ground of appeal also fails. After having dealt with the grounds of appeal, I now consider the needs of the children of the marriage. The records indicate that five issues of marriage live with the respondent and the appellant provides maintenance at the tune of TZS. 120,000/= per month. I find no justification to disturb the arrangement for custody and maintenance of the children of the union. Accordingly, the children of the marriage shall remain under the custody of the respondent and the appellant shall be responsible for the maintenance by providing to the respondent TZS. 120,000/= per month for that purpose. The appellant shall have the right of visitation and access to the children at times and places agreed in communication between the parties before the visit and/or access. This decision is in line with Section 4 (2) of the Law of the Child Act, [Cap. 13 R.E. 2019] which provides that the best interests of a child should be a primary consideration in all actions concerning children. Due to the maintenance duty vested upon the appellant, the first appellate courts order is hereby varied slightly regarding the division of matrimonial assets. This court substitutes it with a 60% share of all the properties for the appellant and 40% for the respondent. All other aspects of the decree of the first appellate court remain intact. 8 From the foregoing discussion and reasons, the appeal succeeds to the extent indicated. Considering the nature of the dispute, each party shall bear its costs. The right of appeal is explained to whoever is dissatisfied with this decision. It is so decided. JUDGE 01/10/2024. Judgment delivered in chamber on the 1st day of October, 2024 in the presence of both parties. JUDGE 01/10/2024 9