einoti munge katamboi suzana munge vs happyson abrahamu mboya happy 2023 tzhc 23446 22 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL NO. 32 OF 2022 (Originating from Matrimonial Cause No. 01 of 2021, in the Resident Magistrates Court of Arusha at Arusha) EINOTI MUNGE KATAMBOI @ SUZANA MUNGE................. APPELLANT VERSUS HAPPYSON ABRAHAMU MBOYA @ HAPPY..................... RESPONDENT JUDGMENT 07th November & 22nd December, 2023 D.C. KAMUZORA, J. This appeal originates from matrimonial proceedings before the resident magistrates' court (the trial court). The Respondent herein instituted matrimonial cause claiming among other things a declaration that their marriage with the Appellant herein had broken beyond repair, a decree for divorce and an order for division of matrimonial properties. The trial court was satisfied that their marriage was broken irreparably and granted divorce. It also ordered for division of matrimonial properties. The Appellant herein was not satisfied with order for division of matrimonial properties and specifically faults the trial tribunal for failure to order division of the properties Page 1 of 11 at Kiteto. He then preferred an appeal before this court praying for tis court to find that properties at Kiteto are matrimonial properties subject for division. When the matter was called for hearing Mr. Isamail Shalua, learned advocate appeared for the Appellant while Mr. Eliakim Sikawa, learned advocate appeared for the Respondent. Counsel for the parties opted to argue the appeal by way of written submissions and they both complied to the submission schedule. Submitting in support of appeal, the counsel for the Appellant argued that the properties in Kiteto Manyara they were jointly acquired throughout the existence of marriage because when the Appellant and the Respondent herein got married, they had no properties. That, the Respondent herein as the husband and the head of the house persuaded and induced the Appellant as a wife to resign from her job so she could assist him in taking care of the family shop, farm and livestock at Arusha. That, they were able to raise the capital and managed to acquire properties including the properties at Kiteto, Manyara. He maintained that the properties in Kiteto Manyara were jointly acquired by both the Appellant and Respondent herein and are matrimonial properties subject to be distributed to both Appellant and Respondent. The counsel for the Appellant further submitted that section 114(1), (2) (b) and (3) of the Law of Marriage Act (CAP 29 R.E 2019) stipulates on the Page 2 of 11 extent of contribution made by each party towards acquisition of assets. He insisted that, in the matter at hand all the properties are matrimonial properties which are subject to equal division by both the Appellant and Respondent as they both contributed towards acquiring those properties that is why the house of Arusha were equally distributed. He supported his stance with the famous case of Bi Hawa Mohamed Vs. Ally Sefu, (1983) TLR 32 where the Court of Appeal held that; "The issue of extent of contribution made by each party does not necessarily mean monetary contribution; it can either be property or work or even advice towards the acquiring of the matrimonial property". The counsel for the Appellant insisted submitted that, in the case at hand, the Appellant through her works and as a wife, acquired jointly with the Respondent the properties in Arusha and Kiteto Manyara. He was of the view that the Appellant ought to have also be given share in properties at Kiteto, Manyara as she had already given equal shares in the House at Arusha. On what constitute a matrimonial property, he referred the Court of Appeal case of Gabriel Nimrod Kurwijila Vs. Theresia Hassani Malongo, Civil Appeal No. 102 OF 2018, (unreported). He concluded with a prayer that the appeal be allowed with no orders as to costs. In reply, the counsel for the Respondent's counsel supported the Page 3 of 11 holding by the Trial Magistrate the properties at Kiteto were not matrimonial properties. He argued that, basing on evidence adduced before the Trial Court the same were not jointly acquired hence, not subject to division. He explained that the evidence from the Appellant herein shows that she admitted her refusal to shift Kiteto and she went there in few occasions during children's school holidays. That, this by itself, proves that she never contributed to the acquisition of the properties at Kiteto. On the Appellant's allegation that the properties at Kiteto were purchased by money jointly acquired before the Respondent moving to Kiteto, the counsel for the Respondent argued that, it is a new fact which was not testified on during the trial of the matter. That, there is nowhere in the records of the Trial Court to prove that any sum of money was acquired before the Respondent shifted to Kiteto which ultimately, was used to purchase the properties in question as so alleged by the Appellant. On the argument that the Appellant resigned her employment after being influenced by her husband (the Respondent herein), the counsel for the Respondent submitted that, such fact was never revealed by the Appellant when testifying before the trial court hence could not be brought up on appeal, he insisted that the Appellant's contribution as house wife has earned her a fifty percent of the Matrimonial properties (House) at Arusha and all the Page 4 of 11 home utensils in the house were ordered to be the property of the Appellant herein. The Respondent's counsel further submitted that, the reason behind the breach of the marriage was the Appellant's refusal to shift from Arusha to Kiteto as was prior agreed between them as a family. To him, this also proves that the acquisition of the properties at Kiteto was not by joint efforts and hence, the Appellant's extent of contribution is zero and deserves no distribution for properties at Kiteto. He referred this Honourable Court to the requirement of section 114 (2)(b) of the Law of Marriage Act [CAP 29 R.E 2019] for it to evaluate the divided interests of both parties and assess the extent of contribution before an order for distribution. The Respondent's counsel also submitted that the house in Arusha which was subjected to division as matrimonial property by the Honourable Trial Court was solely built by the Respondent herein and was built on a plot which the Respondent inherited from his late father. That, the Respondent considers the order for division of 50% each unreasonable and unfair taking into consideration of the extent of contribution as per the requirements of the law but, chose not to appeal for his ex-wife to have a living after divorce. That, it is absurd that the Appellant is appealing against the Trial Courts order for the properties she genuinely know that she had never contributed towards Page 5 of 11 their acquisition and she has previously failed to prove her extent of contribution on the same properties. The Respondent's counsel further submitted that the fact that the Appellant herein refused to reside at Kiteto with her husband (the Respondent herein) for no justifiable reason since 2011 when the Respondent herein shifted thereto, raised a serious conflict between them and they neither settled nor shared any developmental activities or advice which could have amounted to the Appellant's Contribution towards acquisition of the properties at Kiteto. That, the parties unsettled life amounted to serious conflicts between them hence, the claim that the Appellant contributed in any how towards acquisition of the properties she is now claiming to be matrimonial properties, is frivolous and unjustifiable in the eyes of the law. He prayed this court to go through section 114 (2)(b) of the Law of Marriage Act [ CAP 29 R.E 2019] which sets matters to be looked upon when ordering division of matrimonial assets namely, extent of spouses' contribution. He also urged this court to refer decision in the case of Japhet Mtani Wang'uba Vs. Pelagia Kokuhirwa Herman, PC Matrimonial Appeal No. 01 of 2021, HC- (Unreported). He maintained that for any prayer or claim of this nature to be sustained by this Honourable Court, there must be a clear proof of the extent of contribution towards the acquisition of matrimonial Page 6 of 11 properties which, in the case at hand, there is none. In concluding, the counsel for the Respondent prays that this appeal be dismissed with cost. I have considered the records, ground of appeal and submissions by counsel for the parties. The evidence from the records show that parties lived happily after their marriage and they acquired a house here in Arusha which they lived as matrimonial house. The dispute between parties started when the Respondent shifted to Kiteto for more green pastures. He wanted his wife to accompany him but the wife was not ready and that led to their living in separation for more than 12 years. While the respondent lived at Kiteto, the Appellant was living here in Arusha in their family house and both agreed to have conflicts to the extent that they could not share matrimonial bed for a long time. It is also not disputed that the Respondent acquired properties while at Kiteto. The issue is whether those properties are subject to division as matrimonial properties. While the Respondent claim that he acquired the properties during period of separation with the Appellant, the Appellant believe that the properties was acquired from the sale of two family plots located at Arusha by the Respondent hence, everything acquired by the Respondent while at Kiteto is matrimonial property. There is a principle that anything acquired during subsistence of marriage becomes matrimonial property unless proved otherwise. However, Page 7 of 11 seeing beyond this principle, the law set the criterion when it comes to division or matrimonial properties. See section 114 of the Law of Marriage Act, Cap 29 R.E 2019. 114. -(1) The court shall have power, when granting or subsequent to the grant of 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 or to order the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts." From the above provision, it is basically important for a party claiming division over any property to prove two important facts; one, that the said property was acquired by joint efforts and two, how much each party contributed to the accusation of the said property (the extent of contribution). Page 8 of 11 As well held by this court Japhet Mtani Wang'uba Vs. Pelagia Kokuhirwa Herman, (supra), indeed, 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 need to assess if there is evidence proving the extent of contribution by parties. In the matter at hand, the trial court was satisfied that there was no enough evidence to prove that the Appellant contributed towards acquisition of properties at Kiteto. I agree with the trial court's findings. The evidence is clear that when the Respondent shifted to Kiteto to start a new life, the Appellant refused to shift with her husband and that led to conflict resulting to unresolvable conflict in the marriage. The Appellant although had idea that the Respondent was doing business and making development, she had no clear records or document supporting her knowledge to the properties acquired by the Respondent at Kiteto. The Respondent was clear that he abstained from listing the properties at Kiteto because they were not from joint efforts with the Appellant. The law under section 60 (a) of the Mariage Act is clear when a party claim absolute ownership of property acquired during subsistence of marriage. The said provision reads: - "60. Where during the subsistence of a marriage, any property is acquired- Page 9 of 11 (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse; ..." There is no doubt that the properties at Kiteto were acquired during subsistence of marriage. It is also not in dispute that at the time such properties were acquire, parties had marriage conflict and were living in separation. Such fact was raised by the Respondent in his evidence and conceded to by the Appellant in her evidence before the trial court. With that observation and in considering that the Respondent indeed acquired those properties at Kiteto where the Appellant refused to join him, there is rebuttable presumption that the same were individually acquired by the Respondent. Apart from claiming that the properties at Kiteto were matrimonial properties, there is no evidence presented by the Appellant before the trial court proving that she contributed towards those properties and her extent of contribution. She only claimed that the Respondent before shifting to Kiteto sold two plots at Arusha and used the money to start business at Kiteto hence, the properties at Kiteto were acquired through family properties sold at Arusha. The Respondent admitted during cross examination to have sold plots of land but he claimed that the same belonged to him. He also explained that the same were sold for purpose of clearing bank loan and paying children Page 10 of 11 school fees. The Appellant did not present evidence to prove that they were matrimonial properties and the time they were sold to see if they were used by the Respondent to establish business at Kiteto. Thus, in the absence of any evidence to the contrary, the said properties are presumed the properties of the Respondent hence, not subject to division as matrimonial properties. From the above argument and reasons there to, this court finds that the trial court was correct not to subject the properties at Kiteto to division as the Appellant failed to prove if they were acquired by joint efforts and the extent of her contribution. The appeal is therefore devoid of merit hence, dismissed with no orders as to costs in considering relationship between parties. DATED at ARUSHA this 22nd Day of December, 2023 D.C MUZORA JUDGE Page 11 of 11