frank charles kapufi vs mary charles kapama 2023 tzhc 17927 13 june 2023

IN THE HIGH COURT GF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA PC. CIVIL APPEAL NO. 04 OF 2023 (Originating from Civil Appeal No. 46 of 2022 and Matrimonial Cause No. 29 of 2022 at Shanwe Primary Court) FRANK CHARLES KAPUFI ...................... ..T.......... APPELLANT VERSUS a TTT' MARY CHARLES KAPAMA , - ■ ■ ■ ■W“ ■ RESPONDENT 08/05/2023 & 13/06/2023 JUDGMENT MWENEMPAZI, J The appellant isaggrleved. by the decision of the Mpanda District Court dated 31st October, 2022 onUhe aspect of distribution of matrimonial properties hence.he has filed an appeal in his court with only one ground that: - "The appellate court erred in law and fact in evaluation of evidence on distribution of Matrimonial assets which was unfair and Contrary to the law and without considering the contribution made by the appellant towards acquisition of those properties" i The appellant therefore prays for the judgment and decree, allowing the appeal, setting aside the order for distribution of matrimonial assets and redistribute according to the evidence adduced and law. At the hearing the appellant was represented by Mr. Peter Kamyalile Advocate and the respondent was unrepresented. Hearing was conducted orally. Wte,,. % Mr. Peter Kamyalile, learned advocate while submittingon therappeal he stated that the first appellate court erred in layy and/fact in evaluating the evidence which was unfair and 7contrar^;to^h^;3ayy. The Court did not -Th consider the contribution made by the appellanttoward acquisition of those properties. In this case, ifejs the houses the parties acquired in their life together as husband and wife. < ; According to the orders made the court ordered that the house at Makanyagio area be given to the respondent and that the house at Kilimahewa be given to the appellant. Both houses were constructed by the parties by equal or 50/50 contribution, however, the value and size differ. The house at Makanyagio has 11 rooms and located at Mpanda urban and the house at Kilimahewa has four (4) rooms and located at peripheral area. Its value is small compared to the other house. The counsel argued that it is 2 the principle of law that where there are two houses differing on value which has been acquired by equal contribution by the parties in a matrimonial dispute and where each deserve a 50% share, a wise decision would be to give 50% of each house (property). The counsel referred the case of Adriano Gedarm Kipalile Vrs. Esther Ignas Luambano, Civil Appeal No. 95 of 2011, court of Appeal of Tanzania a^ZanzibarKln that case the Court of Appeal allowed the appeal and each part^was'drderedToJfeceive a 50% share- The counsel for the ^appellanf^jj^yealfhat the position be . followed in the present case. v In reply to the submission’ by counsel for the appellant's, the respondent submitted that there are three houses and hot two houses as submitted by the counsel for the appellant. The appellant was given two houses and she, the Respondent,- was-given one .house. In the house, she is staying, there are five finished rooms, she occupies two rooms and the other rooms are occupied by tenants. She prayed that the '?'’7 decision of the lower court be upheld. In addition, she submitted that the appellant collected everything and she was contented. She is wondering the appellant is still looking for other properties. 3 In rejoinder the counsel for the appellant prayed that the court issues an order for each party to have a 50% share and in case the respondent will be willing they should be allowed to swap,It is unfortunate I did no ask the respondent if she will be willing to swap. In the evidence tendered and or adduced by the respondent, she testified that they started living with the appellant as husband and wife in 2003. The appellant paid dowry to the respondent's parents ofTShs/70,000/- together with other things. The testimony doesn't shpw if^fley had any formal marriage; Both respondent and'appellant testified'thatThey started living together as husband and wife. They were blessed with threejssues and only one issue was alive at the time J®/ of hearing, 18/08/2022, Among the properties they acquired together were three houses, one at Makanyagio, another at Kilimahewa - Shanwe and the other/pne at Itenka Village. The house at Itenka village is unfinished. It was testified, by the appellant that the house at Itenka was built on the plot belonging to his father. According to the complaints made, the appellant was not amused with the division of matrimonial properties as decided by the trial magistrate. At this juncture I would like to quote the relevant part of the judgment. In the 4 division of matrimonial properties the Honourable Magistrate ordered as follows: "AMRI YA MGAWANYO WA MALI YA PAMOJA BAINA YA WADAAWA: Katika shauri hili, wadaawa kwa pamoja katika ushahidi wao, 'W> waiieieza kwamba, maii zote ziiipatikana kwa juhudiza pamoja na kila mdaawa anastahili mgawanyo wa maii'hizo, Orodhaya maii hizo kama waiisema wadaawa ni;dgyumba^jatuA/ytaa wa Makanyagio, Kilimahewa na kijiji .cha ltenkby bajaji moja, pikipiki moja, kipimo cha dhahabu, cherehani moja, kibanda cha biashara buzogwe, mahindi gunia 4. yj'A* Maii nyingine ni; kochi seti ,i7ibili, 'tv tatu, deki moja, redio mbiii, kitanda kimoja riai godord mbiii, freji moja, meza tatu, meza moja ya plastiki, meza ya tv, king'amuzi cha Azam, dressing table moja na vyombo vya jikohi. Katika drodha hiyo, maii zote zipo na maii pekee inayobishaniwa uwepo wake ni mpunga gunia 69 stoo huko Itenka. SMI alidai kuwa, mpunga upo mashineni Itenka wakati SU1 alidai kuwa, mpunga ulitumika kulipa deni. 5 Ushahidi wa SU1 uHtiwa nguvu na ushaidi wa SU2 ambaye alisema kuwa, mpunga ulitumika kulipa deni ambaio waiikopa benki, ushahidi wa SU2 uHtiwa nguvu na had ya kukopeshwa fedha na had ya kurejesha fedha ambazo hi vieieiezo KU1 na KU2. Katika mazingira hayo, SMI aiitakiwa kuthibitisha uwepo wa A mpunga stoo Itenka Zaidi ya kueieza tu kuwa, .wana mpunga biia WWk ' ' WK kuieta ushahidi au uthibitisho. Pia, SMI aiikubaii kuwa. deni kweii ■W W- waiikuwa wakidaiwa na benki na hajui namna mkopo uiivyoiipwa. Kwa mandki hiyo, siwe^ikkuingia^katika^mi^gdh^a kutoa amri ya kugawa maii amabyohna utata juu ya uwfepo wake. Amri hiyo 4:<.’ uwenda ikaieta shida katika utekeiezaji wake baina ya wadaawa. Hivyo, nitajikita kujadili na kugawa orodha ya maii ziiizotajwa na wadaawa hapdjuu ambazo hazina utata. Kwa kuwa hakuna ubishi ktiwpy maii hizo. ziiipatikana kwa juhudiza pamoja katiya wadaawa, :W kwa kutumia Kifungu 160(2) cha Sheria ya Ndoa tajwa, ninaamuru mgawanyo baina ya wadaawa kwa mchanganuo ufuatao: - Mgao kwa mwombaji taiaka (mke), apate nyumba moja ya mtaa wa Makanyagio, bajaji moja yenye usajiH namba MC 414 BRR, kochi 6 seti moja, tv moja, deki moja, redio moja, mahindigunia 2, dressing table, kitanda kimoja, godoro moja, cherehani moja, freji moja, meza moja, meza moja ya piastiki, stull 2 na vyombo vya jlkoni nusu. Mgao kwa mdaiwa taiaka (mume) apate nyumba moja ya kilimahewa ya shanwe, nyumba au kiiindocha kijiji cha Itenka, ... kibanda cha biashara buzogwe, (itumike kumdudumja mtoto kwa upande wa ada na mahitaji mengine), pikipikimoja namba ya usajiii MC300 BQC, mahidi gunia 2, kipimocha diiahabu, kochi set! moja, tv mblli, subwoofer rpbja, king'amuzi cha'Azam, meza moja, stull mblli, kiti kimoja cha piastiki, meza moja ya piastiki na vyombo vya jikon nusu. In my opinion, the trial magistrate as well as the 1st appellate magistrate were right in their decision. However, since the appellant is not satisfied, I will decide otherwise as hereunder shown; that given the three houses were built with the contribution of both parties, and in line of the submission by the counsel for the appellant and taking into consideration the decision in the case of Adriano Gedarm Kipalile Vs. Ester Ignas Luambano, Civil 7 Appeal No. 95 of 2021 Court of Appeal of Tanzania at Zanzibar where it was held that: "The record show that both parties in this appeal contributed in building both houses, we are mereasingiy of the view that it is prudent for each party in this appeal to have a sfiatpin each of the two houses. Considering the fact that each partyjcontridu^yfirdn^way or another as stated in the famouscase ofBi: Hawa Mohamed Vs. the acquisition of those matrimonial assets (the two houses). Apart from that, it is aiso a- fact that the 1994 house is old, house, vyhereasthe 2006 housggiven to the respondent is a recently built << house. Duetothose circumstances, and considering the fact that fl eachparty contributed in one way or another in building those two houses, we are of the opinion that justice demands each party to have share in each of those two houses". •In the referred ease the Court of Appeal ordered that each party to the appeal to be entitled to a 50% of chare in each of the two houses. 8 In this case, the respondent testified there are three houses which they built together with her husband. That was not controverted by the appellant though the he testified trying to show the house at Itenka was built at the plot belonging to his father. I opine that, the explanation does not exclude the contribution by the respondent since at the tirfie they were in good terms, they must have intended both of them to?benefit said, house. Under the circumstances I order that the appellant as well as the respondent each has a 50% share in the three houses, the fruits of their joint effort and contribution. Therefore, the. appeal, is allowed to the^extent explained with no order as to costs. F ?. It is ordered accordingly 9