engeraisaria eliawinga swai vs eliawinga asery swai 2021 tzhc 6754 13 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI MATRIMONIAL APPEAL NO. 15 OF 2020 (C/f from Matrimonial Appeal No. 3 of 2019, at Hai District Court in Moshi Originating from Matrimonial Cause No. 10 of 2013 Hai Kati Primary Court) ENGERAISARIA ELIAWINGA SWAI................................ APPELLANT Versus ELIAWINGA ASERY SWAI........................................... RESPONDENT Last Order: 7™ Sept, 2021 Date of Judgment: 13th Oct, 2021 JUDGMENT MWENEMPAZI, J. This is a second appeal where the appellant Engeraisaria Eliawinga Swai is challenging the decision of the District Court of Hai in Matrimonial Appeal No. 3 of 2019 which upheld the trial court's decision in Matrimonial Cause No. 10 of 2013 before Hai Kati Primary Court. A brief background of the matter according to the records is that the appellant and the respondent were a married couple. They lived together Page 1 of 10 and were blessed with 5 children. They started experiencing matrimonial problems which later led them to separate after the respondent left the matrimonial home and decided to marry another wife. After being separated for about 30 years the appellant decided to petition for divorce at Hai Kati Primary court. By its decision of 15th January 2014, the Primary Court granted a decree of divorce and made some pronouncements on the issue of division of the matrimonial properties. The appellant, who was the petitioner in the trial court, was aggrieved by the decision of the Primary Court on the issue of division of matrimonial assets and lodged her appeal on 1st July, 2019 before the District Court. The District Court upheld the trial court's decision and dismissed the appeal. Aggrieved the appellant preferred a second appeal before this court on two grounds as follows; 1. That the 1st appellate court erred in law and in fact by failing to exercise her discretion by upholding the decision of the Primary court that the matrimonial house be sold which (act) renders the Appellant an old lady of over 70 years old and sickly homeless. Page 2 of 10 2. That the 1st appellate court erred in law and in fact by upholding the decision of the Primary court in accepting the Respondent's assertions that the shamba at Kware village has already been divided equally to parties. Disputing the appeal, the respondent made a reply to the memorandum of appeal where he stated with respect to the first ground that the Primary court correctly ordered distribution of matrimonial properties. With respect to the second ground, he stated that the shamba at Kware village was distributed on 20th June, 2017 in the presence of Ward Executive officer for Massama Kusini Ward and his delegates, together with the Appellant who was represented by Julias Eliawinga Swai and Anasaeli Eliawinga Swai and the respondent. It was for those reasons that the respondent prayed that the appeal be dismissed. The appeal was heard by way of filing written submissions. The appellant was represented by Mrs. Elizabeth Maro Minde learned advocate while the respondent was represented by Mr. Hassan Herith learned advocate. In her written submissions in support of the appeal, Ms. Minde submitted on the first ground of appeal that the appellant is over 75 years of age and Page 3 of 10 sickly. That the net effect of the intended execution is to render the appellant homeless. She also stated that there is a house which is currently occupied by the Respondent that is yet to be determined whether it falls in the category of matrimonial properties. She thus argued that the issue of matrimonial properties is not yet settled so she was of the view that the hurry to execute is done in bad faith. She contended further that if execution was indeed meant to be practicable which fact, they deny the court ought to have taken into account the fact that the appellant is 75 years and sickly. It was Mrs. Minde's further submission that the trial court and subsequently the first appellate court did not exercise its discretion prudently as per section 114(1) and (2) (a) of the Law of Marriage Act Cap 29 R.E.2019. She argued that the law compels the courts exercising the power to order division of matrimonial assets to have regard to customs of the community to which parties belong. She submitted further that the parties are Chagga and Tanzanian's and there is no known custom that does not protect the old and sickly. Mrs. Minde went on submitting that the court erred by considering only part of the assets and directing others to be considered later. She argued Page 4 of 10 that the court which is empowered to order division is the court that heard the matrimonial cause and not otherwise hence to abdicate such a vital role meant that the powers as per section 114(1) were not complied with. She was of the view that the first appellate court ought to have ordered additional evidence in order to have a complete picture of the Matrimonial assets. Again, she submitted that the bottom line is that the order would render the old and sickly lady homeless when in fact consideration of other matrimonial properties is pending. She urged this court to intervene so as to prevent the abuse. On the second ground of appeal Mrs. Minde submitted that the basis of the first appellate court was that since the appellant did not object to the execution then the same cannot be entertained at this stage however it was her view that the decision about the status of matrimonial properties was still ongoing thus the purported execution was not a formal application that was argued. She stated that the Respondent simply wrote a letter which was acted upon by the Ward Executive Officer. She argued further that the appellant had raised a complaint that some matrimonial properties had not been determined and also that some properties were sold illegally. It was thus her submission that the complaint suggested that the execution Page 5 of 10 was premature. She thus prayed for the appeal to be allowed by quashing the lower courts decisions and ordering for additional evidence on the matrimonial properties. The counsel for the Respondent, Mr. Hasan Herith in reply to the first ground of appeal as submitted by the counsel for the appellant stated that the appellant was the petitioner in the Matrimonial Cause No. 10 of 2013 at Hai Kati Primary Court. That the trial court ordered for equal distribution of matrimonial properties as listed in the petition filed by the appellant as per section 114(1) of the Law of Marriage Act, 1971 [Cap 29 R.E. 2002]. The learned counsel submitted further that parties failed to distribute the said house as ordered which necessitated the respondent to apply for execution of the Matrimonial Cause No. 10 of 2013. He argued that the trial Magistrate ordered the sale and division of proceeds after the sale as the parties failed to do so after expiry of eight years from the date of judgment. The learned counsel submitted further that the respondent during the period of separation and after dissolution of the marriage does not benefit anything from the said house. Page 6 of 10 With respect to the second ground of appeal the learned counsel submitted that on 20th June, 2017 the appellant and the respondent managed to equally divide amongst themselves a farm located at Kware Village in the presence of Ward Executive officer for Masama Kusini Ward and his delegates, the appellant was represented by Julias Eliawinga Swai and Anasael Eliawinga Swai and the Respondent was also present. He stated that after the distribution every person present did sign a document witnessing the said distribution. The learned counsel submitted further that the only property which remained undistributed is a house in which the appellant is living therefore court's intervention is necessary. Concluding his submission the learned counsel submitted that the appellant's appeal has no merit and on that account prayed for the same to be dismissed with cost. In her rejoinder Mrs. Minde submitted that the respondent's submission did not address the issues raised in their submission thus urged this court to find that the conditions to be considered during division of matrimonial assets were not observed to the letter in particular taking into account customs of the parties. She also submitted that the purported division did not include all properties and or take into consideration that the Page 7 of 10 Respondent had already misappropriated the estate by selling without consent. For the reasons she prayed for the appeal to be allowed. I have carefully gone through the records of proceedings, grounds of appeal and submissions filed. This being a second appeal, I have warned myself that I can interfere with the two decisions only if, there is a valid reason to do so. See: D.P.P. v Jafari Mfaume Kawawa [1981] T.L.R. 149. I will, basing on the submissions, examine the grounds of appeal as listed. The appeal is based on the distribution of matrimonial properties. The appellant on her first ground of appeal argued that the trial court erred in law and in fact by not considering her old age and the fact that she is sickly when ordered for the matrimonial house to be sold and each party to be allocated a half by half of the proceeds of sale. Based on the trial court's decision it is apparent that the trial magistrate ordered for the equal share of matrimonial house amongst the parties in accordance with section 114(1) of the Law of Marriage Act, 1971 Cap 29. The learned counsel argued that the order of the trial court was not exercised prudently because there is no known custom in the country which does not protect the old and sickly. Page 8 of 10 In my view, I see absolutely nothing wrong with the trial court's decision. As rightly reasoned by the first appellate court that it was impracticable to order for the house to be divided in terms of rooms since they could not still be under the same roof after being divorced. Therefore, the order given by the trial court was proper in the circumstance. The argument that the appellant is old and sickly and that the effect of the order would make her homeless is not tenable because the appellant can still buy or rent another house by using the money she would get after the house is sold. Again, the order did not contravene any law so I find the first ground of appeal lacking in merit. On the second ground of appeal the appellant argued that the status of the matrimonial properties was still ongoing because some matrimonial properties have not been determined thus execution was premature. Basing on the trial court's decision at page 3 of the judgment only two properties were declared to be matrimonial. These properties included the house located at Bomang'ombe where the applicant was living in and a farm located at Kware village. The trial court also decided that there was no proof that the house where the Respondent was living was acquired by joint efforts. It is therefore crystal clear that the court did determine all Page 9 of 10 matters pertaining to matrimonial properties thus the contention by the learned counsel for the appellant that the determination of matrimonial properties was still on going is unsubstantiated and therefore untenable. It follows therefore that the second ground of appeal also lacks merit. From the foregoing reasons I have come to a conclusion that the appeal has no merit and thus proceed to dismiss it without any orders as to costs. It is so ordered. " 2 - ' T. MWEflEMPAZI JUDGE 13th OCTOBER, 2021 Page 10 of 10