furaha ramson siame vs rehema shonde 2021 tzhc 9094 30 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA MATRIMONIAL APPEAL NO. 05 OF 2021 (Originating from Matrimonial Case No. 04 of 2021 at Mlowo Primary Court within Mbozi District, arising from Matrimonial Appeal No. 02/2021 at Mbozi District Court) FURAHA RAMSON SIAME................................................... APPELLANT VERSUS NEEMA SHONDE................................................................. RESPONDENT JUDGEMENT Date of last Order: 27.10.2021 Date of Judgment: 30.11.2021 Ebrahim, J. This is the second appeal. The appellant has lodged five grounds of appeal as follows: 1. The trial court erred in law and fact for issuing the decision and judgement basing on weak evidence. 2. The trial court erred in law and fact for not determining the evidence adduced by the appellant. Page 1 of 12 3. The trial court erred in law and fact for not entertaining equally the division of matrimonial assets. 4. The trial court erred in law and fact for not recording correctly the evidence adduced by the appellant in the proceeding and judgement thus adding and reducing some words. 5. The trial court erred in law and fact for disregarding in judgement the issue of children who are under the custody of both parties. The brief background of this matter, according to the records goes thus; the appellant initiated divorce proceedings at the Primary Court of Mlowo claiming that they have been cohabiting with the respondent for eight years as husband and wife. He claimed that the respondent has been disrespectful to him in such a way she told him that the issues are not his. He contended that during the subsistence of their relation, they acquired a pharmacy in 2017. They also bought a plot which was registered in the name of their child and they later built a house where they moved in 2019. He also said that he used to carry the bricks to the building site. The appellant called one Fadhili Page 2 of 12 Nahason as his witness (SM2) who told the court that he used to work as a conductor for the appellant and the appellant was carrying the bricks to the building site. On her side, the respondent told the trial court that he met with the appellant in 2013 at lhanda and they began their relationship. After being pregnant with their first child, she told the appellant to go to her parents but he refused. He also told him to look for the plot to no avail. It was when the respondent decided to buy a plot and the appellant only gave him Tshs. 50,000/- but did carry any bricks. She testified also that when she looked for the masonry, the appellant chased him away and looked for another masonry who could not finish the work. Thereafter, she borrowed the appellant Tshs. 700,000/- which he did not return. The respondent said she finished building the house and moved in and went to introduce herself to the Street Chairman. At one time, there arose a matrimonial squabble where the elders were called and the appellant alleged that the children were not his. SU2, one Denis Mbuba testified that he was once called to resolve a dispute where the appellant said that the respondent verbally abuses him and he does not want to continue living with her. Page 3 of 12 After considering the evidence presented before him, the trial magistrate found that the parties were not married but cohabited in the presumption of marriage under section 160(1) of the Law of Marriage Act, Cap 29 RE 2019. Thus, they would be no order for the decree of divorce. The trial court proceeded to distribute the properties acquired during the subsistence of their marriage under section 114 (1) of the Law of Marriage Act Cap. 29 R.E 2019 (LMA). The trial court ordered that the properties i.e. a house and the pharmacy be divided equally between parties. The court also ordered the appellant to continue taking care the welfare of his two issues i.e., Gift Furaha Siame and Catherine Furaha Siame in accordance with what he can afford. Aggrieved, the respondent successfully appealed to the District Court of Mbozi. The first appellate court after evaluate of evidence on record, reversed the decision of the trial court and substituted the division of matrimonial asset to 100% to the respondent. Aggrieved, the appellant appealed to this court. In this appeal, both parties appeared in person, unrepresented. Page 4 of 12 The appellant adopted his grounds of appeal and submitted that he is not satisfied for both children to be under the custody of the respondent and that he was the one who built the house which they moved in year 2019. He said they opened a pharmacy in 2017 and the respondent was supervising it. Responding to the arguments by the appellant, the respondent also adopted her reply to the grounds of appeal and told the court that they were merely cohabiting but not married. She said the appellant chased her from the house claiming that the children were not his and that it was her who bought the plot and built it. She stated also that it was not true that the plot was registered in the name of their child. As for the pharmacy, she said she is currently employed at Doctor Sichone after one Dumuzi died and that she does not own a pharmacy. In rejoinder, the appellant said that after Dumuzi died, he gave the respondent money where they had to put a name of a person who had a licence. He said also that the respondent admitted at the Primary Court that they called a “Mshenga” one Mzee Mashaka and that the sale agreement was not authentic. Page 5 of 12 The appellant kept on referring to the trial court in his grounds ot appeal whilst he is in-fact aggrieved by the decision of the 1st appellate court. Thus I would ignore such reference as it does not prejudice any person. In determining this appeal, I shall begin with the issue that the trial court did not record correctly the evidence adduced by the appellant. I must state out-rightly that the court records are very important information that should not be discredited easily. Firstly, the appellant has not told this court what part of the evidence that has not been recorded. Secondly, if at all what he is saying is true, why didn’t he raise the argument at the first appellate court? I therefore find this ground of appeal to be an afterthought and I dismiss it. Again, as to the 5th grounds of appeal, the appellant did not complain on the issue of custody of children at all in the first appeal. If at all he had an issue on the decision of custody of children, he should have filed a cross appeal to contest on the custody. He did not do so neither did the respondent raise any complaint against the decision of the trial court on the maintenance of children. Therefore, like the first appellate court, I Page 6 of 12 would not reverse such decision and I also find the 5th ground of appeal as an afterthought and I dismiss it. Coming to the 1st, 2nd and 3rd grounds of appeal, it is mainly on the weight of evidence of each party and whether the evidence of the appellant was considered by the appellate court in reversing the 50/50 distribution of the properties. In determining the same, I shall be guided by the principle of the law that “he who alleges must prove; and that a burden of proof lies on a person who would fail if no evidence at all were given on the other side” -section 110(1) and 111 of the Law of Evidence Act Cap 6 RE 2019. Now looking at the evidence of both parties on the question of division of the properties acquired during the subsistence of the presumption of their marriage; the appellant claimed that they acquired the pharmacy and the house. As to the issue of the pharmacy, the respondent submitted that she was firstly employed at the pharmacy of one Dumuzi who after passing on, she is now working at the Pharmacy of one Dr. Page 7 of 12 Sichone. The respondent claims that after the death of Dumuzi, he gave money to the respondent to open their own pharmacy and they used the licence of Dr. Sichone. That argument has not been supported by neither the document nor evidence from the said Dr. Sichone. Being a Pharmacy, obviously there has to be a concrete proof that indeed the appellant was the one who funded the acquisition of the said pharmacy and they simply used the said Dr. for his licence. In the circumstances therefore, I agree with the first appellate court that there is no any documentary proof by the appellant to prove the acquisition of the said pharmacy nor any document like tax payment records to show that he was running the show. Therefore, I find no reason to refute the fact that the Respondent is an employee of the said pharmacy as argued and the same is not a jointly acquired property. As for the issue of a house, in reading the records, the appellant did not challenge the fact that it was the respondent who purchased the plot for the disputed house in 2016. The law states clearly that failure to cross examine on an important fact, Page 8 of 12 amounts to acceptance of the truthfulness of the witnesses' account. This position was illustrated by the Court of Appeal in the case of Shadrack Balinago vs. Fikiri Mohamed @ Hamza, Tanzania National Roads Agency (TANROADS) and Attorney General, Civil Appeal No. 223 of 2017 (unreported). Nevertheless, going through the testimony of the respondent at the trial court, she testified that the the appellant only gave him Tshs. 50,000/- but did carry any bricks. The appellant told the court that he used to carry bricks to the site the fact that was supported by the evidence of SM2 who said that he was the conductor of the appellant. The fact that the appellant had a motor vehicle for business purposes was disputed. However, there is no evidence as to how much exactly or approximately that the appellant contributed to the building of the said house. Moreover, it is also not disputed that in essence it was the respondent who finalized the building of the said house and had major contribution. The law, i.e., section 114 (1) of the Law of Marriage Act Cap. 29 R.E 2019 (LMA) provides that a court may order division of matrimonial assets which in our case properties acquired during Page 9 of 12 the subsistence ot the cohabitation between the parties. However, the court does not perform that exercise arbitrarily. The law sets some factors to be considered by the court in performing that task. Such factors are set under section 114(2) of the same Act. The Court of Appeal of Tanzania (the CAT) in the case of Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of 2016, CAT at Mwanza (unreported) underscored the import of section 114 of the LMA, that distribution of matrimonial property is guided by the principles enshrined in the said section. These provisions of section 114(2) are couched in mandatory form as follows, and I quote them for a readymade reference: "1 14(2): In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the children, if any, of the marriage," It is my position that the provisions of the law apply to division of jointly acquired assets depending on the circumstances of each Page 10 of 12 case. In the matter at hand, as alluded earlier, the evidence is clear that it was the respondent who had a major contribution than that of the appellant. The appellant could not state as to whether he was the one who provided for the bricks of the whole house or a certain stage of a house. The above notwithstanding, as observed by the trial court and looking at the records of the proceedings, the said house was acquired when the parties were still cohabiting and regarded as husband and wife under the presumption of marriage. Thus, I find it would be only fair if the appellant would get a share on the said house. That being said, I reverse the decision of the 1st appellate court and distribute the said house to a ratio of 80% to the respondent and 20% to the appellant. Each party is at liberty to buy the share of the other party at the existing market price provided that when a party wishes to sell his/her share, the other party shall have first right of refusal. Before I pen off, I find it also apt to keep the records straight on the issue of children as I find it prudent to grant the appellant with visitation rights to the children upon informing the other party Page 11 of 12 within reasonable time prior to the visit or depending on the circumstances. The respondent shall not unreasonably withhold the right of the appellant to visit their children and have temporary custody during school holidays and the like. Further, in case of changes of circumstances which render either party unfit to have the custody of the issues; the other party may move the court to rescind its earlier order. In the end result, the appeal succeeds only to the extent ordered above in changing the ratio of the division of the house. Following the relationship of parties that it is a matrimonial matter, I give no order as to costs, each party to bear its own. Page 12 of 12