civil appeal no 10279 of 2024 Fadhila Omary

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 10279 OF 2024 (Arising from the decision of The Resident Magistrate's Court of Dar es Salaam at Kisutu in Matrimonial Cause No. 27 of2021} FADHILA OMARY............................................................................ APPELLANT VERSUS AUGUSTINO OMARY MAZINGE....................................................RESPONDENT JUDGMENT 04th June & 19th July 2024 BARTHY, J.: The appellant named above displeased with the decision of Resident Magistrate Court of Dar es Salaam at Kisutu, appeals to this court against the said judgment and decree based on the following grounds; 1. That the tried Court erred both in facts and the law when failed to consider, weight and evaluate evidence adduced by appellant thus holding acquired sole property ofappellant as a matrimonial property which subjected to division thereon. Hence misdirected himself on his reasoning and make wrong decision, (sic) L-sm-v 1 2. That the tried court erred both in facts and the law for failure to decide on balance of probabilities disregarded and summarize evidence adduced by appellant and upholding consider narrated story of respondent without tangible and strong adduced evidence of respondent. Hence misdirected himself on his reasoning, irrational and make wrong decision as revealed on copy of judgment, (sic) 3. That the tried Court erred both in facts and the law for compelling and concluding that appellant concede and not rebut acquisition of alleged property as did not contest evidence of respondent while copy of judgment and proceeding speak louder as she contested and rebutted the same. Hence misdirected himself on his reasoning, irrational and make wrong decision, (sic) 4. That the tried court erred both in facts and the law for failure to observe, make analysis and follow established facts and applicable law in relation to evidence adduced by appellant as distinguishable evidence adduced by respondent, (sic) ' 2 Wherefore, the appellant respectfully prays that this court quash and set aside the decision of the trial court, award the costs of this appeal, and grant any other orders that this court deems fit and just. To properly appreciate this appeal, it is essential to understand the background of the case. The respondent initiated legal proceedings against the appellant in Matrimonial Cause No. 27 of 2021, brought before the Resident Magistrate's Court of Dar es Salaam at Kisutu (the trial court). The respondent sought a declaration from the trial court that the presumption of marriage between the parties had irreparably broken down. Additionally, the respondent prayed for an order for the division of a house that was acquired during their period of cohabitation. After hearing the submissions from both parties, the trial court ordered the division of the house, allocating 55% of the property to the respondent and 45% to the appellant. Dissatisfied with this decision, the appellant has appealed to this court, challenging the trial court's judgment on the grounds previously stated. During the appeal hearing, the appellant, represented by Mr. Mngumi Samadani, argued that the trial court made legal and factual errors in its decision regarding the classification of matrimonial property. He asserted that the house in question was solely acquired by the respondent, referencing the sale agreement from 23rd December 2006, and additional evidence involving the appellant's deceased husband, which the trial court failed to properly analyze. He emphasized that a married woman has the right to own personal property, as per section 56 and 60 of the Law of Marriage Act, Cap 29 R.E. 2019 (to be referred to as the LMA). Citing the case of Maua Shabani vs. Mohamed Lukafumbila, High Court at Dar es Salaam, Civil Appeal No. 70 of 2021. On the second and third grounds, Mr. Samadani contended that the trial court improperly relied on the respondent's evidence while disregarding the appellant's proof, including the sale of land and the claim that the house was built by the appellant. He also argued that the trial court incorrectly assumed a presumption of marriage and failed to differentiate between the evidence presented by both parties. Thus, he prayed that the court should allow this appeal with costs. Mr. Frank Kiliani, representing the respondent, argued that the appellant was trying to protect the matrimonial house in Vijibweni, which 4 the trial court had already divided, allocating 55% to the respondent and 45% to the appellant. Addressing the first ground, Mr. Kiliani contended that the issue of the house purchase stemmed from witness evidence, not from the petition itself. He dismissed the appellant's claim of buying the house for Tsh. 170,000/= as baseless, as no supporting evidence was presented. He also argued that the appellant's assertion that the house was solely in her name does not override Section 114(1) of the LMA, which defines matrimonial assets as those jointly acquired, regardless of ownership under Section 60 of the LMA. Mr. Kiliani further countered the appellant's claim that the house was jointly built with her deceased husband, noting that no Letters of Administration were provided as proof. He distinguished the case of Maua shabani (supra) from the present case, pointing out that, unlike the cited case, a presumption of marriage exists here. For the second ground, Mr. Kiliani reiterated his earlier arguments. Regarding the third ground, he argued that the appellant failed to effectively challenge the respondent's witnesses (PW1, PW3, PW4) and suggested that even a reevaluation of the evidence by this court would likely yield the same decision as the trial court. 5 On the fourth ground, Mr. Kiliani urged the court to consider his previous submissions and requested that the appeal be dismissed with costs. In response, Mr. Samadani reiterated his earlier points, maintaining that the Vijibweni house is solely the appellant's property and asserting that no marriage existed between the parties, as the appellant was married to another person, a fact corroborated by witness testimony. After carefully swotting the submissions from both parties, the court found it difficult to fully understand the essence of the grounds of appeal as they were originally presented. In order to ensure clarity and accuracy in addressing the issues raised, the court has taken the initiative to reconstruct and rephrase the grounds of appeal as follows; 1. That the trial court erred in both fact and law by failing to consider, weigh, and evaluate the evidence presented by the appellant, thereby wrongly concluding that the appellant's solely acquired property was matrimonial property subject to division. Consequently, the court misdirected itself in its reasoning and rendered an incorrect decision. 2. That the trial court erred in both fact and law by failing to decide on the balance of probabilities, disregarding and 6 oversimplifying the evidence provided by the appellant, while giving undue weight to the respondent's narrative without strong and tangible evidence. As a result, the court misdirected itself in its reasoning, acted irrationally, and made an erroneous decision, as reflected in the judgment. 3. That the trial court erred in both fact and law by concluding that the appellant conceded and did not contest the acquisition of the alleged property, based on the respondent's evidence. However, the judgment and proceedings clearly show that the appellant contested and rebutted this claim. Thus, the court misdirected itself in its reasoning, acted irrationally, and made an incorrect decision. 4. That the trial court erred in both fact and law by failing to observe, analyze, and apply the established facts and applicable law to the evidence presented by the appellant, which was distinguishable from the evidence provided by the respondent. To determine whether this appeal has merit, the court must consider the grounds presented. It has been noted that all grounds of appeal are closely related and revolve around a central issue: the court therefore will consolidate them into one issue as to whether the trial court erred in both fact and law by improperly evaluating the evidence, leading to the incorrect conclusion that the appellant's individually acquired property was considered matrimonial property. Before addressing this core issue, it is essential to highlight that this court serves as the first appellate court. According to established legal principles, an appeal of this nature is treated as a re-hearing. This means the court is empowered to thoroughly review and consider all the evidence presented and make its own independent findings. This principle was emphasized in the case of Jamal A. Tamim vs. Felix Francis Mkosamali & Another (Civil Appeal No. 110 of 2012), Court of Appeal at Dar es Salaam [2013] TZCA 342 (3 May 2013). In the current appeal, the appellant argues that the trial court failed to properly analyze the evidence and did not accord appropriate weight to the testimonies and submissions from both parties. The trial court is obligated to evaluate the evidence from both sides impartially and make a well-reasoned decision. A failure to fulfill this duty results in a fundamentally flawed judgment. This obligation was underscored by the Court of Appeal in the case of Leonard Mwanashoka vs. Republic (Criminal Appeal No. 226 of 2014) [2015] TZCA 294 at Bukoba (24 February 2015), where it highlighted the importance of thorough evidence evaluation in judicial proceedings, the court stated; It is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objective evaluation in order to separate the chaff from the grain. Furthermore, it is one thing to consider evidence and then disregard it after a proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation or analysis. After thoroughly going through the trial court records, it is evident that the evidence provided by the petitioner, now the respondent, indicated that he cohabited with the appellant from 2006 acquiring the status of the husband and wife. During this time, they acquired a house in the Vijibweni Kigamboni area. In 2017, the respondent fell ill and went to Tabora for treatment, where he stayed for three years. Upon his return, he discovered that the appellant was living with another man in their house. The respondent brought forth witnesses who testified that they had observed the appellant and respondent living together in various locations and perceived them as a married couple. (J 9 In her testimony before the trial court, the appellant denied ever cohabiting with the respondent, claiming that she had been married to another man, Salum Issa Ismail, since 2000. The trial court's task was to determine whether there was a rebuttable presumption of marriage between the petitioner and the respondent. The court carefully considered the essential elements of the presumption of marriage under Section 160(1) of the Law of Marriage Act, Cap 16 R.E. 2019 (LMA). The trial court found that the evidence from witnesses PW2, PW3, and PW4 supported the respondent's claim, establishing a presumption of marriage between the parties. The court also noted that the appellant's claim of being married to another person lacked sufficient proof. Consequently, the trial court determined that the respondent's evidence carried more weight on the balance of probabilities, leading to the conclusion that a presumption of marriage existed between the parties. Given the evidence presented at trial and the competing submissions, the central issue in this case is whether a presumption of marriage can be established between the parties. The pleadings and evidence suggest that the respondent consistently maintained that a io presumed marriage existed, while the appellant denied any relationship or cohabitation with him. However, a careful examination of the pleadings reveals that the appellant, despite her denial of cohabitation, stated in her amended answer to the petition, "Further, the respondent has never cohabited with another man..." This inconsistency undermines her credibility, as parties are bound by their pleadings. The case of Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017), Court of Appeal at Mwanza [2019] TZCA 453 (11 December 2019), underscores the importance of adhering to pleadings. The respondent, asserting the existence of a presumed marriage, provided witnesses who testified that the parties cohabited and were regarded as a married couple. In contrast, the appellant's complete denial of cohabitation and her claim of being married to another person, which was not pleaded in her response, was considered an afterthought and lacked credibility. The respondent successfully proved on the balance of probabilities that a presumed marriage existed between the parties. Thus, the trial court's findings, which were based on a proper analysis of the evidence, are sound and should not be questioned. (J li After establishing the rebuttable presumption of marriage, the trial court addressed whether the parties acquired any joint property during their cohabitation as husband and wife. The respondent testified that they constructed a house together during their time together. He worked as a gardener, while the appellant was employed as a house help. The appellant, however, claimed that the house was her personal property, purchased in her name, and should not be considered a jointly acquired asset. The trial court recognized its authority to make consequential orders regarding the division of. matrimonial assets in cases of separation and divorce. It assessed the contributions of each party toward the acquisition of the house and concluded that the respondent's contribution was greater than that of the appellant. The trial court found that the plot was initially purchased by the respondent and that the appellant's claim of purchasing the house from the respondent was neither pleaded nor proven during the trial. Consequently, the trial court ruled that the property was a matrimonial asset. The trial court also observed that neither party provided detailed evidence of their contributions, complicating the court's assessment of each party's involvement. While both parties were employed during the 12 early stages of their cohabitation, the appellant later became a housewife. The trial court ultimately concluded that the respondent made a greater contribution toward acquiring the house. Upon going over the pleadings, evidence presented at trial, and submissions from both sides, this court finds that the respondent proved on the balance of probabilities that he purchased the land with his salary and gradually built the house. The appellant's claim that she bought the plot from the respondent in the year 2006 for Tsh. 170,000/- was witnessed by the local leader, but the fact remains that the plot at Vijibweni Kigamboni was initially owned by the respondent before being sold to the appellant. The court also notes that it is unclear how the appellant came to know about the plot, whether through work or another capacity. In determining the extent of contribution, the court must rely primarily on the evidence provided by the parties. This principle was highlighted in the case of Gabriel Nimrod Kurwijila vs. Theresia Hassan Malongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 at Tanga (20 February 2020). Based on the evidence presented, this court finds that the respondent herein proved on the higher balance of probabilities that the house was jointly acquired with the appellant and that his contribution 13 toward its acquisition was greater than that of the appellant. Therefore, the trial court's findings stand. In light of the above, this appeal is found to be without merit and is accordingly dismissed. Considering the nature of the case and the circumstances involved, no order as to costs is made. It is so ordered. Dated at Temeke this 9th day of August, 2024. G. N. BARTH JUDGE Delivered in the pres'Shce of Appellant in person, Ms. Mwanaisha Ally holding brief of Mr. Mgumi Samadanrcearned Advocate for the Appellant, Respondent in person and Ms. Bernadina Tayari, RMA. 14