fredrick henerico vs yusta vedasto 2022 tzhc 15009 6 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA PC MATRIMONIAL APPEAL NO. 16 OF 2020 (Arising from the decision of the District Court of Shinyanga in Matrimonial Appeal no. 4/2019 dated 14/08/2020 that arose from original civil case no. 212/2019 from Urban Primary Court) FREDRICK HENERICO APPELLANT VERSUS YUSTA VEDASTO RESPONDENT JUDGEMENT 6th December, 2022 A. MATUMA, J; The appellant Fredrick Henerico and the respondent Yusta Vedasto are divorced couples. It was the respondent who successfully sued the appellant at Urban Primary Court for divorce, division of matrimonial assets and custody of children. At the trial Primary Court the appellant testified that she married the appellant in 1998 and they were blessed with three issues. That when it got 2010 the appellant changed his behaviour by deserting the family because he decided to shift to Bukoba leaving his family at 5hinyanga unattended. So the divorce was sought on the ground of desertion. The appellant on his party disputed the allegations against him but blamed the respondent for d~nying him all matrimonial services including food and instigating th~ir children .... ,..,.T" =-""' I I / I I by greetings. Even though he aSke~ the Court to refuse granting the I divorce es he still loves his wife. I The trial Court at the end granted the divorce, ordered distribution of the matrimonial home at 90% to! the respondent and 10% to the appellant. The appellant was further ordered to pay Tshs. 140,000/= per I each month as maintenance for tw0l children. The appellant was aggrieved herice appealed to the District Court for three major complaints namely t1at; the distribution of matrimonial assets was not proper, the assessors' opinion was ignored, and that it was wrong for the trial Court to di4tribute properties at Bukoba which in fact does not exist. The District Court found that tJe marriage between the parties was indeed broken beyond repair. It h10wever faulted the trial Court in the manner it analysed the eVidence/ to reach in the distribution of the matrimonial assets and order the maintenance against the appellant. It found that the appellant did not desert his family as he remained in Bukoba for family matters h ving made consultation with the respondent. The District Court further foun that the appellant cared his family as he involved the respondent on VjriOUS matrimonial affairs including his selling of a landed property in BUJoba, contributing in the acquisition of their matrimonial home at Shiny~nga, paying for children school needs e.t.c. The District Court finally foilind that at Bukoba the parties did not have any property to be distributed and that even the plot which the appellant sold thereat and gave t e respondent Tshs. 5, 000, 000/= for buying a house at Shinyanga was his father's la I 2 The District Court therefore faulted the trial Court to distribute properties which did not exist. The District Court found that the only matrimonial asset which was available for distribution was the house at Shinyanga and increased the I percentage of distribution from 10:% to the appellant into 20% and reduced that of the respondent from 90% into 80%. The District Court I further set aside the maintenance order of Tshs. 140, 000/= for there I was no evidence as to the source of:income of the appellant. I I The appellant was further aggrieved I with the findings of the District Court particularly the percentage h~ was given in the matrimonial house, I the denial to any distribution oW a plot, 250 cement bricks and I households jointly acquired and denial of the appellant's access to the I family home. : I I At the hearing of this appeal th~ appellant wa present in person and submitted at length that they had acquired a plot and 2500 cement I bricks commonly known as rnatofan ya block upon which he gave I evidence but it was not considered thereby denied a share. That on the I current house in dispute they hadi almost equal distribution because he gave the respondent Tshs. 5,00P,000 1 = for purchase of that house and later gave the respondent T~hs. 3,000,0001= for renovation of I the house while the respondent's contribution was only Tshs. , I 5,500,0001 =. He argued that in the circumstances he deserves an I I equal distribution to the house. : I I About the households, the appellant submitted that he married the respondent while he was in possession of his personal properties as I I enlisted under exhibit D4 and during their . ge they jointly acquired I I other households as per the list in exhibit D4 supra. He however was denied anything from such properties despite the fact that the I respondent admitted during trial that the appellant had his personal belongings when they got married. ijie thus asked this court to order his personal properties which he acquired alone to be given to him and an equal distribution of those which they acquired together. I I won't deal with the ground qf assessors being ignored of their opininon because I have noted that they both signed the impugned judgment in the meaning that they own such judgment. I He submitted on the last ground that he was barred from entering I . the suit house while he had interest thereof including a room which he I used to breed chickens (chumba alichokuwa ametenga kwa ajili ya kufugia kuku) which had various breeding tools and fully wired for the I business (kufungwa balbu kubwa 'za kutia jato chumbani kwa ajili ya I kuku). That his being barred to enter I the premises caused him to suffer loss while the respondent benefits: herself. He thus concluded that they get equal distribution to the house, the plot, the bricks and households I which they acquired together and be given his personal households. I The respondent who was present at the hearing of this appeal had I the service of Mr. Paul Kaunda learned advocate. The learned advocate who at times was interrupted by 'his client (the respondent) submitted that the two courts below wer~ right to the decision they reached I particularly on the dispute bouse, That the house was bought by the I Respondent alone through his: loan taken from various financial I institutions as exhibited by exhibilts A3, A4, AS and A7 and that at the time the respondent acquired the I house the appellant had already deserted her since 2010. I I The learned advocate admittdd that the appellant gave the I respondent Tshs. 3,000,000/= but the same was not used in the renovation since Tshs. 2,000,0001=1 was recalled back by the appellant while Tshs. 500, 000/= was used for paying school fees for their daughter. On the bricks, Mr. Paul Kaunda I~arned advocate had no dispute. He admitted that the bricks belongs to the appellant and may take them. At this juncture the respondent interrJPted and I gave her chance to state what was burning her in relation to the bricks. She submitted that having sold the plot she took fhe bricks and used them in the construction of toilet and safety tlnk (Shirno/karo la choo) at the suit house. Mr. Kaunda then took back t~e floor and submitted that the plot which the respondent sold was her I own property which she bought at Tshs. 1,500,000/= and sold at Tshs. 3,000,000/= and used the proceeds to develop the suit house. He thus argued that the 200/0 he was given in the house suffices because the only contribution the appellant made in the house was te 2500 bricks. The learned advocate submitted that indeed the appellant had his own households prior to their marriaqe but those which are currently available are the bed, cupboardj old mattress and two coffee tables (stuli). In respect of the other Ii~ed properties he argued that they are no longer available as they were Ised to its finality; In his rejoinder the appellant argued that he could have not deserted his wife since 2010 while the records speaks that up to 2015 he was cooperating with his wife and involving her in various family affairs including selling and buying properties. He submitted that evidence of loans is not evidence to the acquisition of the dispute properties because the respondent used to borrow and spend the loans to her other issues including buying of farms for his family and therefore she listed the loans to deceive the court. He denied to have been sent back Tshs. 3,000,000/=. That the school fees was a different money which he gave the respondent apart from such Tshs. 3,000,000/= About some households to have been completely used, he submitted that up to the time he was forced out he left them there. He reiterated his earlier submission on the properties they acquired together. After having heard this appeal and gone through the records of the trial Court, I entirely agree with the concurrent findings of the two courts below on the fact that the marriage between the parties is broken I beyond any repair because as " Court of law we cannot false the couples to stay together. That was well stated in the case of Mwenda Mtinani v. Juma Malumbi (1984) TLR 47 as rightly relied upon by the trial Court to the effect that; "hekuns mahakama yenye uwezo wa kuamuru watu waishi pamoja. " I therefore sustain the divorce decree. The maintenance is no longer an issue for determination by this Court as it was determined by the District Court and none of the parties appealed against the decision fO~.maintenance and or custody of children. I I The only issue therefore is whether the only matrimonial assets I were fairly distributed to the parties, The District court found that the only property available for the parties was the house and that rulee out; "The appellant's contribution Jas on the plot and Tshs. 5, 000, 000/- for buying a house. Since the property which the appel/ant was awarded does not exist and the house,located at Shinyanga being the sale mJtrimonial asset acquired during their joint life, it is my view th It 10% was not on the law side." It is plainly true that the .vidence on record shows that the appellant gave the Respondent Ts IS. 5, ODD,000/= for buying a house at Shiyanga apart from the plot 1hiCh they had acquired. By then he was at Bukoba to attend other 1amilY matters. This finding was not challenged by the respondent by way of cross appeal particularly when she knew that the appeal aqalnst her is on the distribution of the property and that amount is sUbiet to the matter at hand. I therefore agree with the learned magistrate in the District court that the appellant and the Respondent had acquired the plot and later the house. The respondent sold le plot without involving the appellant and the use of the proceeds ther lof was not accounted for. It is on this appeal when the respondent purported to state that she used the proceeds in further developing th~ house at issue. I therefore find that the appellant is entitled to Tshs. (500,000/= as an equal distribution to the plot. The respondent ShOUlbpay ppellant such amount. I I further order equal distribution of the bricks because there is no evidence showing that they were used in further developing the house by building a toilet and safety tank. The respondent should give the I appellant 1250 bricks or the equivalent value thereof. In respect of the house at I issue, I find that the respondent dishonestly bought the house in h~r own names meaning that she had predetermined malice to dispossess the appellant of the property I altogether. She was given part of .the purchase money for buying the I house but did not reflect her divorced husband as co-purchaser. There is also evidence which was even not idisputed by the respondent that the I appellant sent her another Tshs, B, ODD, 000/= for renovation of the I purchased house. I agree with the I appellant that there was no tangible evidence to show that the respondent returned back that amount at the request of the appellant and usedl some for paying school fees for the I children. I I I The respondent's argument was that she bought the house I through loans obtained from the: bank and renovated it by the same loans. On this I agree with the: appellant that there is no evidence I establishing that the loans the respondent obtained from the bank and I other financial institutions were wpole or partly used to buy or renovate the house in question. To the contrary there is ample evidence on I record to the effect that the Appellant gave the respondent Tshs. 5, ODD, I 000/= for buying the house and later Tshs. 3, ODD, 000/= for I renovation. : I He involved the respondent in selling of his father's land which was not even their matrimonial asset, The res entfent;dmitted that fact I I on record. Out of Tshs. 6, 000, 000/= which the appellant received out of such sale he gave the respondent Tshs. 5, 000, 000/= for her to buy a house at Shinyanga for his family. That shows that the appellant is a I responsible man who cares his family as was held by the District court. The exhibits on record shows two different purchase prices. The contract shows that the house was Ibought at Tshs. 10, 500, 000/= but the transfer deeds shows that th'e consideration was only Tshs. 7, I 000,000/=. I In the first instance, this is an indication that the respondent is dishonest. But be it as it may, if thb house was bought at Tshs. 7, 000, I 000/= then it was the appellant who contributed much Tshs. 5, 000, I 000/=. But if it was bought at Tshs, 10, 500, 000/= still the appellant contributed more because out o~ it he contributed a total of Tshs. I 8,000,000/=. I I The respondent concentrated to establish how she obtained loans from the bank but failed to connect the said loans to the purchase and I renovation of the house in question. In the circumstances justice I requires that both the appellant a1hdthe respondent get equal benefits regarding to the suit house. : I Having determined as such, I now set aside the 20% and 80% distribution of the appellant and: the respondent respectively on their matrimonial house at Shinyanga ~s made by the District Court. In lieu I thereof I order equal distribution at 50 % to each of the market value of I the house in question. Either party may pay the other 50% of the I market value of the house to remain I the sole owner-or the house. I The prohibition of the appellant from entering that house was discrimination and against the rules 'of justice because he was already adjudged to have the right over the property. Therefore he was restricted to enter into the premises ~e has an interest dully determined by the court itself. But again such prohibition meant even the 20% he I was given was just faking on record to purport that he was regarded in the distribution but the reality was tp the contrary because the whole property was given to the respondent with a clear discriminatory order I that the appellant should not enter the property. I therefore order and direct that both parties have the rights of access to the property until when either of them shall pay the other's I share or when the house is sold and the parties gets their respective I shares. I I The parties are given three months' time to settle their respective shares or else the house will have to ~e sold thereafter for each party to get his or her respective share. I I I also find that the appellant wis wrongly denied any distribution to the households. It is in evidence that the appellant had various properties prior to their marriage 1hiCh was admitted even at the hearing of this appeal and they jointly !acquired some others during their marriage. This is indicated on eXhi~it D4. The respondent disputed existence of some properties which whs acquired by the appellant prior to their marriage but at least she admits existence of some of them. It was wrong to let the appellant go Jmpty handed as if he does not deserve to the properties and without any reason. I thus order that the appellant takes one bed and its mattress. Th er bed and its mattress although was acquired prior to the marriage should remain with the respondent for use of their issues. The appellant should take the cupboard, meza ya chakula, seti m~ja ya kochi na mito yake, na stuli mbili. . In relation to the households they acquired jOintly the appellant should take one TV. The rest of thl properties should remain with the respondent because the children arr still with the respondent so that they cannot be subjected to hardShiP,' I therefore vacate the ord1r denying him a share to the households. I warn the Respondent rrom tempering anyhow to dispose the households and make them aVjilable for distribution between her and the appellant. Any attempt to 1ispose any of the households shall be accounted into her share to the mouseand may be reasonably used to reduce her share to the house depending on the value of each disposed property. With the herein observations, this appeal is allowed and no orders as to costs. It is so ordered. . TUMA l~DGE 06/12/2022 11