dr amon raphael makenya vs elizabeth elias msambila 2023 tzhc 23509 20 december 2023

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MATRIMONIAL APPEAL NO. 62 OF 2023 (Arising from Matrimonial Cause No, 04 of2022) BETWEEN DR. AMON RAPHAEL MAKENYA ......... APPELLANT VERSUS ELIZABETH ELIAS MSAMBILA ................. . RESPONDENT JUDGMENT Date oflast Order: 21/11/2023 Date ofJudgement: 20/12/2023 DING'OHI/J. This is an appeal against the entire decision of the District Court of Kibaha in Matrimonial Cause No. 04 of 2022 in respect of the division of matrimonial properties. The Appellant is aggrieved by the trial court's decision which found, among others, that some assets listed in the Petition for divorce are not matrimonial assets but are exclusively acquired by the Respondent. i The brief facts of the case are that the appellant and the respondent were a husband and wife who undergone three forms of marriage that's customary marriage contracted in 1988, civil marriage celebrated in 1993, and Christian marriage in 2003. The trial court records show that throughout their marriage life parties had never lived under one roof as it used to be because the appellant was studying and working in Europe from 1983 to 2004. Even after his return, the appellant had to settle in Dar es Salaam working as a lecturer at Ardhi University, while the respondent settled in Iringa where she was employed. However, the records stipulated that, during their lifetime in marriage, there were houses built at Kihonda Morogoro, Kihondombi Iringa, and Kibaha Pwani. It was after some time that the appellant found their marriage not to be fit anymore and hence petitioned before the trial court for divorce and division of matrimonial properties. After a full trial, the trial court found that the marriage between the parties herein had irreparably broken down. It proceeded to issue a certificate of divorce and divided the matrimonial properties. Dissatisfied by the trial court findings, particularly on the division of matrimonial properties, the appellant knocked on the doors of this court armed with the following eight (8) grounds of his grievances, namely; 2 1. The Trial Court erred in law and in fact for holding that a plot at Kibaha where a house is erected, the erected house in the said plot, a house at Kihonda Morogoro, a house at Kihodombi Iringa are not matrimonial properties as they solely belong to the Respondent, 2. The Tria! Court erred in law and fact for holding that the Petitioner has not contributed anything in the acquisition of plot at Kibaha where a house is erected, the erected house in the said plot, a house at Kihonda Morogoro and a house at Kihodombi Iringa. 3. The Trial Court erred in law for holding that the Petitioner ought to have invoked Rule 27(3) of the Law of Marriage (Matrimonial Proceedings) Rules to move the court to order for discovery of purchase documents of a house built at Kibaha, Pwani region which the Petitioner alleged were in the hands of the Respondent who had disputed its existence. 4. The Trial Court erred in law and fact for mixing facts as to where the matrimonial house situate at Kibaha is erected and that the Respondent introduced new fact in her defence regarding this house which the Petitioner did not dispute. 3 5. In afternative to ground number 4 above, the Trial Court is in gross error for holding that during cross examination the Petitioner did not dispute the fact that the Respondent built a house at Kibaha in a plot she purchased from her friend Zamzam. 6. The Trial Court erred in law and in fact for holding that parties evidenced that they had separated since 2004. 7. The Court erred in law and in fact for holding that the Respondent was given a surveyed plot of land by his relative Emmanuel Msengwa and at the same time she obtained an offer from Sefania Anonisye Mwasampeta. 8. The Trial Court erred in in fact for holding that when he retired the Petitioner was paid Tanzania Shillings 4,500,000/=, He.therefore prayed that; a. The trial court's judgment in respect of the division of the matrimonial properties be quashed and set aside. b. This court issue an order that all properties listed in the petition of divorce are matrimonial properties. c. The listed properties be divided equally. d. Each party is to bear his/her costs. 4 e. Any other relief order and/or relief that this Honorable court may deem just and fit to grant By consent, this appeal was ordered to be disposed of by way of written submissions. Mr. Joseph Kiyumbi Sungwa, the learned counsel represented the appellant. On the adverse side, the Respondent enjoyed the services of Mr. Amos Yona Sura, the learned counsel. In his submissions, Mr. Sungwa consolidated the first, second, fourth, and fifth grounds and argued them together. He abandoned the seventh ground of appeal. The remaining grounds of appeal were argued separately. Submitting on the first and second grounds of appeal, the learned counsel cited the case ANNA ALOYCE VERSUS ZACHARIA ZEBEDAYO MGETA, PC MATRIMONIAL APPEAL NO. 01 OF2020 (HC MWZ unreported), on the proposition that in the acquisition of matrimonial or family assets, the court must decide per its peculiar facts and circumstances. He further argued that it is an undisputed fact that the Appellant and Respondent have been married for over 35 years since 1988. Due to the inescapable circumstances, they have not lived together in the same premises for almost three-quarters of their marriage life as the appellant went to pursue his university studies in Moscow, Russia from 1983 to 5 2004. He added that, when the appellant returned home from his studies, he was employed in the year 2005 by Ardhi University, Dar es Salaam. The Respondent was employed by the Vocational Education and Training Agency (VETA) stationed at Iringa until 2007 when she was transferred to VETA Morogoro and worked until 2009 when she was moved to VETA Kibaha until her retirement in 2022. Mr. Sungwa further argued that the nature of their employment forced parties herein not to live under one roof. That notwithstanding they managed to acquire assets in the places where the Respondent worked and situated. Despite all of that, it is alleged, that the Appellant still fulfilled his duties as a father. He regularly used to pay a visit to his family at Iringa, Morogoro, and even at Pwani. It was further submitted that the appellant's contribution towards the acquisition of the matrimonial properties cannot be proved by documentary evidence due to his lifestyle with the respondent as he trusted her as a wife and she utilized her for development activities such as the erection of houses for the sake of family. The learned counsel insisted on his submission that the houses in Iringa and Kibaha were built by joint efforts with the respondent from 2004 upon his return to Tanzania permanently. The appellant's salaries and that of the 6 Respondent both led to the acquisition of the said matrimonial assets. To support his arguments, he cited the case of SIXBERT BAYISANGA V ROSE NEHEMIA SAMZUGICIVIL APPEAL NO. 68 OF2022, CAT (unreported), and the case of VICTORIA SIGALA V NOLASCO KILASI, PC MATRIMONIAL APPEAL NO.l OF 2012 (HCIRINGA) Moreover, the learned advocate argued that the house of Morogoro was substantially improved from 2004 to 2007 through the Appellant's salaries and Respondent's loans. To support his stance he cited the case of NAOMI LUCAS MBUKI V RAPHAEL NKWABI, MATRIMONIAL APPEAL NO. 24 OF2020HC MWANZA (Unreported). In furtherance, the learned counsel argues that the appellant had a copy of the sale agreement for the house built at Kibaha as evidence, and the said agreement indicates that he is the one who purchased the property and he also testified in the trial court to that effect. Submitting on the third ground of appeal, Mr. Sungwa argued that; the trial court grossly erred in ruling that the Appellant ought to have invoked the provision of Rule 27 (3) of The Law of Marriage (Matrimonial Proceedings) Rules. He submitted that the house at Kibaha was purchased by both parties from different vendors. The Appellant maintained that he bought it from Mama Mzegera who is now deceased. On the other side, the Respondent maintained that she purchased the 7 same house from her friend Mama Zamzam though there was no documentary evidence to support that. On the discovery of evidence, the learned counsel further argued that in law discovery is only made where the Respondent also admits what the appellant alleges, but in the case at hand, even the respondent disputes what the appellant alleges. Under the circumstances, the learned counsel poses, how can the appellant apply for discovery per the law? Submitting on the 4th and 5th grounds of appeal, the learned counsel contended that, on her defense at a trial court the Respondent never disputed that the house built at Kibaha was different from that which was mentioned by the Appellant; surprisingly on her final submission, he revealed that the house at Kibaha was not that which were purchased jointly. The trial courts finding shifts the duty to the Appellant to dispute such fact through cross-examination which according to Mr. Sungwa is not a proper way per the law because the cross-examination cannot be done during the final submission. Furthermore, the learned counsel submitted that it is a cardinal principle of the law that parties to a suit are bound by their pleadings. He supported that position with the case of MARIA AMANDUS KAVISHE V NORAH WAZIRI MZERU (ADMINISTRATOR OF THE ESTATE OF THE LATE SYLVANOS 8 MZERU) AND ANOTHER, CIVIL APPEAL NO.365 OF 2019 (CAT- Unreported), among others. On the 6th ground of appeal, the learned advocate asserts that on page 4 of the trial court's judgment, the trial Magistrate held that the parties herein had been separated since 2004. On that, Mr. Sungwa submitted that neither the appellant nor the Respondent either in their pleading or during the hearing stated that they separated in 2004. The learned advocate stagged as to how and where the trial court came up with those findings. Submitting on the last ground of appeal, the learned counsel contended that, the trial court seemed to be deliberate in confusing what the appellant said in his testimony. He argued that it was not true that the appellant was paid TZS. 4,500,000/= When he retired. The truth is that until the time of his retirement in 2018 he was being paid TZS. 4,500,00/= per month. In reply to the grounds of appeal, Mr. Amos Yona Sura, the learned counsel for Respondent argued that under the 1st and 2nd grounds of appeal, the main complaint is that the landed properties at Kongowe Kibaha, Kihondobi Iringa, and Kihonda Morogoro are not matrimonial assets as the appellant never contributed towards the acquisition of those properties. 9 The learned advocate went further by drawing attention to this court on the meaning of matrimonial assets. He quoted the definition of matrimonial assets from Thornton, an English lawyer who defines that phrase in that; "Matrimonial assets are all assets belonging to the parties which were acquired during the marriage. He goes further to state that any asset which have been acquired by way of a gift or Inheritance from a third party are specifically excluded and do not constitute matrimonial property and therefore would not be taken into account as part of the settlement negotiations." His point under the above quotation was that the plot of the house built at Iringa was given to the respondent by her relative. The handing over document to that effect was admitted by the trial court as an exhibit It is argued that the costs of the construction of the mentioned house were from the bank's Ioan. The receipt of salary advances were admitted as exhibits MDE2" and "DE3". He further argued that even though the house at Kihonda Morogoro was earlier built in 1998 by DW3, the respondent bought a site while studying at Morogoro, and the sale agreement of the said house was admitted by the trial court as exhibit "DE4". Later on, the learned counsel argued, the respondent developed a house through her serving 10 from her salary and sponsorship from the Training Fund for Tanzania Women. That, at the same time respondent obtained an offer document in her name which was admitted by the trial court as exhibit "DE5". On the house at Kibaha, the learned counsel submitted that, when the Respondent was transferred from Morogoro to VETA Pwani, she was given a piece of land by her fellow instructor on the agreement that upon finishing to repay the purchase amount parties to the agreement would reduce their agreement into writings. However, according to the respondent's advocate, the source of income to build a house at Kibaha was associated with loans from VETA PWANI SACCOS, Postal Bank, CRDB Bank, and Vikoba. Documents for the Ioan agreements from Postal Bank and CRDB were collectively admitted by the trial court as Exhibits "DE6" and "DE7" respectively. Moreover, the payment receipts for building materials of a house were also admitted as exhibit "DE7." It is the learned counsel's submission that, the listed properties were not matrimonial property according to Thornton's (supra). He contended that there was no proof of any contribution from the appellant towards the acquisition of the said properties, He supported his contention by citing the cases of MARIAM TUMBO K HAROLD TUMBO (1983) TLR 293, and GABRIEL NIMROD KURWIJIRA V. THERESIA 11 HASSAN MALONGO, CIVIL APPEAL NO. 102 OO 2018. CAT (Unreported). With regards to the 3rd ground of appeal, it was the respondents submission that it was confusion and misapprehension of the appellant's advocate that the court did not deal properly with the provision of Rule 27 (3) of the Law of Marriage (Matrimonial Proceedings) Rules, GN. No. 136/1971. He revealed that any party to a matrimonial proceeding who believes that a certain document is in the possession of another party and wishes to rely on it in evidence at his side has to apply to the court for an order of discovery of the said document from the other party. According to him, it cannot be said that the trial court grossly erred in reasoning. On the 4th and 5th grounds, the learned counsel submitted that they never introduced new facts. According to him every question raised was within the scope of pleadings. He invited this court to make a perusal of the trial court records to satisfy itself on the allegation of introducing new facts. He added that if there was introduced a new fact there was a chance for them to raise a preliminary objection at the trial court. Arguing against the 6th ground of appeal, the respondent's counsel submitted that, the appellant's counsel confused the facts as during the 12 trial, the respondent told the court that since their marriage, the appellant stayed apart in Europe. Even upon his return in 2004, he remained at Dar es Salaam alleging that the environments the respondent lived in were not conducive to him. He further argued that the appellant never disputed the fact that upon return from Europe in 2004 he lived together with his family. He concluded by arguing that, this ground lacks a leg to stand since the divorce decree was issued, it ought to have been relevant if and only if the parties herein are battling for divorce. Lastly, on the 8th ground, the learned counsel submitted that the issue is not how much the appellant was paid from his office after retirement; it might be a pension or monthly salary, but the issue is how much the appellant used for his family. He added that the appellant failed to explain how he kept his family or supplied the necessities of life to his family. The learned counsel for Respondent prays that this court should maintain the trial court's findings as it is the respondent who took the responsibility of the appellant even that of taking care of his children at school and the rest of their lives. He further prayed for an order of the dismissal of this appeal to its entirely for want of merit. 13 I have carefully gone through submissions by the counsel for both sides, I have considered what they have submitted for and against this appeal. The central issue for determination at this juncture is whether the appeal has merit. In dur jurisdiction, the issues of matrimonial properties are governed by the Law of Marriage Act, Cap. 29 RE 2019. Admittedly, the said law has not specifically defined the term matrimonial property or assets. However, the "matrimonial asset"has been defined in case laws in our jurisdiction. In the case of GABRIEL NIMROD KURWIJILA (supra) quoted with approvals definition of matrimonial assets from India made under section 4 (1) of the Matrimonial Property Act, Chapter 275 of the Revised Statutes, 1989 in that; "Matrimonial assets" means the matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage. In terms of the above precedent, it is clear that there are two categories of matrimonial properties; those that are jointly acquired by the spouses before or during the subsistence of their marriage and/or those that are individually/separately acquired by one spouse in his/her name but developed by spouses by their joint efforts. For an asset to be termed a 14 matrimonial property or otherwise, is a question of law and facts to be established by evidence. Section 114 of the Law of Marriage Act requires the courts, when dealing with the issue of division of matrimonial assets, to consider the extent of the contribution made by each party in the acquisition of the property. It is trite law that the proof of the existence of marriage is not the only factor for consideration in determining the issue of contribution of parties to the marriage in the acquisition of matrimonial assets. There must be evidential proof of how each party to the marriage has contributed to the acquisition of the property. it is on record that the appellant strongly maintains that all properties he listed are matrimonial property jointly acquired by them during the subsistence of their marriages. He further contended that the Respondent was a supervisor of those properties which he believes were acquired by joint efforts. The appellant is agents the Respondent on that. I have considered submissions by both sides. The law is very clear 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 (See the decision of Court of Appeal, in the case of BARELIA 15 KARANGIRANGI VSASTERIA NYALWAMBA, CIVIL APPEAL NO. 237OF 2015). Section 112 of the Evidence Act, [Cap-6 R.E. 2022] also provides that; "The burden ofproof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by law that the proof of that fact shall He on any other person ". The law also requires a person who claims for the division of the matrimonial properties to prove his/her contribution towards the acquisition of those properties. In GABRIEL NIMRODI KURWDILA's case (supra) it was observed; "...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../'. I am fully aware of the position taken by the learned counsel for the appellant from the decision in the VICTORIA SIGALA's case (supra) that there's no fast and hard rule in deciding on the amount of contribution and division of matrimonial assets. Also that where the 16 matrimonial assets were acquired during the happy days of marriage and in the joint efforts of the spouses there is no need or requirement for one spouse to give evidence to show the extent of her/his contribution and that the distribution of such assets should automatically proceed in equal terms. I have considered that submission but it is my settled view that the position cannot be taken blindly. At least there must be evidential proof in the record on the contribution of each party towards the acquisition of those assets. In this case, the evidence of the contribution of the appellant towards the acquisition of those properties is not found. It is for the foregoing reasons, I find that this appeal has no merit. It's hereby dismissed in its entirety. Parties to bear their respective costs. It is so ordered. COURT: Judgment delivered this 20th day of December, 2023 in the presence of parties in person. 17 S. R. DING'OHI JUDGE 20/12/2023 18