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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA PC MATRIMONIAL APPEAL NO 12 OF 2022 [Appeal from the decision of the District Court of Sumbawanga at Sumbawanga In consolidated Civil Appeal No 5 and No 6 of 2021; Original Matrimonial Cause No 3 of 2021 of Sumbawanga Urban Primary Court] BETWEEN FLORA MWIGUNE APPELLANT Versus GODFREY KAGUSA RESPONDENT JUDGMENT MRUMA,J. This is an appeal against the decision of the District Court of Sumbawanga at Sumbawanga in consolidated civil appeals No 5 and No 6 of 2021. The Appellant Flora Mwigune was also the Appellant in the District Court. In that consolidated Matrimonial Appeal the Appellant was challenging the decision of the Sumbawanga Urban Primary Court in Matrimonial Cause No 3 of 2021. Being the first appellate court, after re-evaluating the evidence adduced at the trial court, in its judgment the District appellate court made various orders touching distribution of what it considered to be jointly acquired and/or matrimonial properties, custody and maintenance of children. The Appellant was aggrieved and has come to this court on appeal on the following grounds: 1. That the District appellate court erred in law and in facts for failure to distribute all houses located at Muze and Isesa; 2. That the District appellate court erred in law and in facts for ordering the parties to distribute the matrimonial properties equally while the Appellant contributed more than the Respondent; 3. That the District appellate court erred in law for failure to determine that the parties had a valid marriage; 4. That the District appellate court erred in law to invoke extraneous matters to the effect that the elder wife had[sic] supposed to be entitled with the distribution of matrimonial properties acquired by the Appellant and Respondent; 5. That the District appellate court erred both in law and in facts by failing to consider the value of the property and debts the Appellant had at the time of distributing the assets; 6. That the District appellate court erred in law for failure to distribute the house at Bangwe and Jangwani while the Appellant had direct contribution on the properties. This is the second appeal, the duty of the second appellate court is to examine whether the principles which a first appellate court should have applied were properly applied and if it did not for it to proceed and apply the said principles (See the Ugandan case of John Kafeero Sentongo Versus Peterson Sozi Civil Appeal No 173 of 2012 [Unreported]). The background of the matter albeit briefly is as follows; the Appellant Flora Mwigune instituted Matrimonial Cause No 3 of 2021 before the Sumbawanga Urban Primary Court seeking for the following orders: 1. That the marriage between her and the Respondent Godfrey Kagusa be declared to have been irreparably broken down and an order for divorce be issued; 2. An order for division of"family" properties which were listed as:- i. Five Flouses; ii. One motorcycle; ill. Four herds of cattle; iv. Domestic utensils and; V. Three plots. The Appellant also prayed for an order for custody and maintenance of three Issues of their marriage to be made In her favour and costs of the matter. The evidence In support of the Appellant's claims at the trial Is traceable on the records of the trial court and particularly In her sworn evidence which she gave on 8^^ June 2021. The Appellant told the trial that she started to live with the Respondent as husband and wife In 2001. She said that at that time the Respondent was a jobless man while she was running her own medical store business and she was also dealing with cash crops and cattle businesses. According to the Appellant during their cohabitation they managed to build three houses from the proceeds of their businesses. They also constructed a house at Bangwe area which was for their parents sold one house which was being used as a guest house. It was further evidence of the Appellant that all the properties In Issue were acquired, developed, Improved and maintained by their joint efforts during the pendency of their marriage and that her contribution was monetary as well as non-monetary contribution In the form of companionship and management of the matrimonial home and properties. On how she got the money which she used as part of her contributions towards acquisition of the properties the subject of this matter she told the court that In 2004 she took a loan of Tanzania Shillings 420,000/= and sold 40 bags of maize and 120 bags of rice and used that money as her contributions in the construction of the said houses. In 2013 she took another loan of Tanzania shillings 6,500,000/= which she used towards purchase of the Jangwani house. She further stated that there were other three houses located at Isesa area and that towards acquisition of the first house she contributed Tanzania shillings 10,000,000/= which she took as a loan and the Respondent supervised the construction. She said that in 2018 she took a loan of Shillings 7,500,000/=from NMB bank and Tanzania shillings 1,500,000/= from community bank (commonly known as Vicoba) and constructed a house whose documents were in her possession. She further averred that they purchased a maize flour machine but the Appellant sold it without involving her. In 2019 they sold rice in order to build a house at Isesa but as the proceed was not enough she took another loan of Tanzania Shillings 2,500,000/= from a bank which she didn't disclose. It was further evidence of the Appellant that in 2020 she took loans from LETSHEGO (FAIDIKA), she sold rice for Tanzania Shillings 2,800,000/= and Tanzania shillings 4,600,000/= from community bank (Vicoba), She told the court that generally her source of income included sale of crops (commonly maize and rice), salary, loans, seminar allowances and money collected from circumcision businesses which she was practicing. She told the court that during their marriage they purchased a plot at Isesa area for Tanzania shillings 530,000/=. That she purchased the motorcycle by using her own money and it was registered in the name of the company which she didn't disclose. The Appellant further claimed that the Respondent's main contribution was by being a supervisor and overall in-charge of the family. She tendered in evidence various documents including loan agreements (Exhibit PI), salary slips (Exhibit P2), statements (i.e. messages) showing some moneys she sent to the Appellants as her contributions towards acquisition of family properties The Respondent opposed the Appellant's claims in the cause save for divorce order. In his evidence before the trial court he denied the allegations that he was jobless and that he mistreated the Appellant. He said that he started to engage in various businesses since 1991 and by 1997 he had constructed a house at Bangwe. In 1998 he purchased a plot at Bangwe and constructed a house therein for his parents. He stated that the Appellant didn't deserve 50% share in the listed matrimonial properties. He said that in 1999 he constructed a house at Msanzi for the Appellant's parents. He said that indeed the Appellant contributed to acquisition of some of the properties but not 50% on any of the properties. He asserts that it is true that the Appellant contributed towards acquisition of two houses one at Kakwale area and another Isesa, four herds of cattle a shop and bar and some domestic utensils as mentioned in the claims. Regarding issues of their marriage the Respondent asserted that he recognizes only two issues out of three as his children and disputed the third one. He said that in 2007 he visited the Appellant who was at a college in Tanga and he found her with a three months' pregnancy. In its judgment the trial court found that the following properties were jointly acquired by the parties:- i. One house located at Jangwani area ii. One house at Bangwe area; iii. One house located at Muze; iv. One motorcycle; V. One plot/house at Isesa; vi. A plot at Muze and; vii. A commercial house located at Isesa; viii. A motorcycle; ix. Domestic utensils. In its distribution order the Appellant was given i. One house/farm located at Isesa; ii. One commercial house located at Isesa IN. One plot located at Njombe and iv. A motorcycle The Respondent was given I. One house located at Jangwani area; ii. One house located at Bangwe area; ill. One house located at Muze area. Domestic utensils were divided at a proportion of 50% per each party. Both parties were aggrieved by the decision of the trial court and appealed to the District Court. In its judgment the District appellate court framed three issues which it determined. Finally the court found that both parties made contribution in acquiring matrimonial properties and ordered equal distribution between the parties. The Appellant was aggrieved and has appealed to this court on the following grounds:- 1. That the District appellate court erred both in law and in fact for failure to distribute all houses located at Muze and Isesa; 2. That the District appellate court erred in law and in facts for ordering the matrimonial properties to be distributed equally while the Appellant had contributed more than the Respondent; 3. That the District appellate court erred in law for failure to determine that the parties had a valid marriage; 4. That the District appellate court erred in law to invoke extraneous matters to the effect that the elder (i.e. senior) wife is entitled to the distribution of the matrimonial properties acquired by the Appellant and the Respondent; 5. That the District appellate court erred in law and fact for failing to consider the value of the property and debts the appellant had at the time of distribution of the assets and; 6. That the District appellate court erred in law for failure to distribute the house at Bangwe and Jangwani while the Appellant directly contributed to their acquisitions. At the hearing of this appeal, the Appellant was represented by Mr Alfred Chapa learned advocate while the Respondent appeared in person and unrepresented. In that circumstance and for the interest of justice the appeal was argued by way of written submissions. Both submissions were made in Kiswahili. The first complaint is that the District appellate court was wrong for its failure to distribute all houses located at Muze and lsesa areas. it has been submitted for the Appellant that the District appellate court having found that there were two houses one at Muze and another one at Isase which were acquired during the subsistence of the parties' marriage, it was wrong to hold that they didn't form part of the matrimonial or jointly acquired properties without giving reasons. The learned counsel cited the case of Tanga Cement Company Limited Versus Christopherson Co Ltd [2005] TLR 190 where it was held that a judgment which does not contain the reasons for the decision is not a judgment. The learned counsel also cited section 60 of the Law of Marriage Act and contended that because there was no evidence that the properties absolutely belonged to one of the parties in exclusion of the other it was wrong for the District appellate court to exclude them from distribution. Unlike the term matrimonial home which is defined under section 2 of the Law of Marriage Act, as a building in which the husband and wife ordinarily reside together, the term matrimonial property is not defined under that Act. However, Black's Law Dictionary 10''^ Edition by Bryan A. Garner at page 1411 defines it as; "Property that is acquired during marriage and that is subject to distribution or division at the time ofmaritai dissoiution" 10 From the above quoted definition of matrimonial property it is worthy noting that marriage per se has no effect on the property right of the spouses whether such property is acquired before or after marriage. It is only a property which is subject to distribution which is a matrimonial property. The property becomes subject to distribution and therefore matrimonial if it is jointly acquired by the spouses, otherwise each spouse has unfettered right to acquire deal or.own a property in any manner whatsoever. Section 58 of the Law of Marriage Act is to the effect that marriage shall not operate to change the ownership of any property to which either a husband or wife may be entitled or prevent either the husband or the wife or to prevent either the husband or the wife from acquiring, holding had disposing of any property. Under section 114(1) of the Law of Marriage Act court has power to order division of matrimonial assets. The Respondent submitted that for properties to qualify to be matrimonial property, they ought to have been acquired during the subsistence of the marriage between the Appellant and the Respondent unless otherwise agreed by the parties that such property would not form part of matrimonial property. I agree with him. In its judgment the District appellate court held inter alia that mentioning a property doesn't make automatically make it a jointly acquired property. I also agree with this finding. 11 Section 110 (1) of the Evidence Act requires that he who alleges must prove. The Appellant had a duty to prove the existence two houses located at Muze and Isesa respectively. No cogent evidence was produced to prove that those houses do exist and that they were jointly acquired houses. More over in her claim instituted before the trial court she stated that there were five houses jointly acquired by the parties which she was requesting for a distribution order. I thus find that the first ground was lodged without any substance and I dismiss it. In the same vein the extent of contribution of a party towards,acquisition of matrimonial property is a matter of fact. As stated above section 110 (1) of the Evidence Act requires that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he/she asserts must prove that those facts exist. The Appellant claims that she contributed more than what the Appellant did but there is nothing in the evidence to show that her contribution exceeded that of the Respondent. As stated hereinbefore mentioning a property or tendering in evidence acquisition of loans from the banks or any other institution is not a proof that the money loaned was spent in acquisition of matrimonial property or in any other way. The person who so alleges has the duty to prove that it was so used. 12 As to the existence of a valid marriage, I find nothing to fault the District appellate court. A submission that the first appellate court erred for failure to find that parties had a valid marriage is misconceived. At page 38 of its judgment the first appellate court upheld the finding of the trial court to the effect that there was a presumption of marriage. In terms of section 160(1) where it is proved that a man and woman have lived together for two years or more in such circumstances as to have acquired the reputation of being husband and wife there is a presumption that they were duly married. In the present case there was ample evidence that the Appellant and the Respondent started to live together as husband and wife since 2001. The Appellant testified that she started to live with the Respondent as a wife and husband since 2000. This evidence was not controverted and it was corroborated by the evidence of Musa s/o Marcus Mhagama (PW6) who referred to the Appellant as his brother in-law and testified that he was living with, the couple from 2000 to 2005 and he recognized them as husband and wife. The Respondent didn't challenge these assertions and he is on record saying that:- "Ninamtambua kama Mke wangu kwa sababu nimezaa naye. Based on that evidence the trial court found that there was valid marriage between the parties and granted a prayer to dissolve it. When a 13 presumption is not rebutted it is admitted and the fact in it is proved. This finding was not faulted by the first appellate court and I find no reason to fault it. On the fourth ground the Appellant complained that the appellate district court invoked extraneous matters to hold that the Respondent's senior wife was entitled to matrimonial properties acquired by the Appellant and the Respondent. I have no difficult in resolving this issue. Section 57 of the Law of Marriage Act provides for equality between wives. The law provides that:- "For avoidance ofdoubt, itis hereby declared that, subject to the express provisions ofany written iaw, where a man has two or more wives they shaii as such, enjoy equai rights, be subject to equaiiiabiiities and have equaistatus in iaw" In the case at hand there is evidence from Ana Joseph Mambosasa(DW2), the senior wife of the Respondent and the Respondent himself to the effect that she was the wife of the Respondent since 1994. This means that by the time the Appellant started to live with the Respondent as his wife in 2001, he had DW2 as his wife and according to the provisions quoted above that wife had equal rights over the matrimonial property she jointly acquired with the Respondent. That it was correct for the trial 14 court in dividing properties claimed to be matrimonial property to take into consideration what would be the interest of the Respondent's senior wife. On whether the said senior wife contributed towards the acquisition and the development of the matrimonial properties that would be a matter of evidence and because it was the Appellant who was establishing her contribution she had a duty to establish that their acquisition was in exclusion of any other person including the Respondent's senior wife. Finally it was submitted that the District appellate court erred in law for failure to consider the value of the matrimonial properties against debts which the Appellant had at the time of distribution. I have revisited the evidence adduced during the trial and the records of the first appellate court and basing On the evidence oh record I that this ground was preferred without any substance or justification. The issue was not canvassed during the trial therefore it cannot legally be argued at the second appeal level. In division of matrimonial property there is no set rule or mathematical formula. In the present case the evidence shows that before and during the parties' marriage the Appellant was employed in a formal health sector and she contributed physically and financially towards the acquisition of 15 matrimonial property the subject of this matter. The Respondent was a hustler and it is unfortunate that hustlers are construed to be jobless. I say it is unfortunate because there is wide misconception that any person who is not employed in public or formal sector is unemployed or jobless. This is a very dangerous misconception. There is large section of people in our society which make strenuous efforts to obtain or get money or business by trying to sale their stuff legally. They are not jobless or unemployed by any standard. They have jobs and they are self-employed a thing should be encouraged instead of being viewed negatively with a of negative things. In. considering matters involving this section of our society courts should avoid associating hustling with negative things like force etc. courts like what both the trial and first appellate courts did in this case should order division of the matrimonial,properties by taking into consideration parties' contributions towards its acquisition. r have carefully read the pleadings of parties as filed in the primary court, the submissions filed in support of this appeal and the authorities they are relying on. From the material placed before me, and as I have just stated in the course of this judgment, parties herein were married In view of the provisions of section 160(1) of the Law of Marriage Act and as correctly held by both courts below their marriage has broken down- irreparably. 16 In making orders for distribution of what was found to be matrimonial property, the District appellate court took into consideration the principles applicable in establishing what is matrimonial property and how it should be divided between the spouses. I agree with the first appellate court on the distribution of the matrimonial properties and dismiss the Appellant's appeal. As parties were husband and wife I make no orders as to the costs. Order accordingly. 0^^ /I' c A.R. MRUMA, ry (s> 7- UJ vv JUDGE V- 25. 3. 2024 Delivered online this 25^^ Day of March 2024 in presence of both parties who are at the High court of Tan^nia Sumbawanoa District Registry. A. R. MRUMA 25. 3. 2024 17