MATRIMONIAL CAUSE NO

© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) MATRIMONIAL CAUSE NO. 000004524 OF 2024 GAUDENCE S/0 ZYOGOLI COMPLAINANT I APPELLANT I APPLICANT I PLAINTIFF VERSUS JETRUDA D/0 BILIKUNZILA RESPONDENT/ DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 14th of August 2024 Hon. RWIZILE.: Parties to this appeal were husband and wife, having contracted a civil marriage in the Roman Catholic Church. Facts, as to which parish and where their marriage was contracted were not stated. It is apparent that they both agreed their marriage was contracted on 12th July 1995. They, however, have no certificate of marriage. Their marriage was blessed with six children. It seems, few days after their wedding ceremony, the conflicts begun. In 2022, the appellant filed a Matrimonial cause at Manyovu Primary Court. He was praying for a decree of divorce, division of matrimonial assets and maintenance of their children. After a hearing, a decree of divorce was issued, custody of their children was given to the respondent and matrimonial assets were divided to the parties. None of the parties was happy with the decision of the trial court. Each of them filed a separate appeal to the district court, registered as appeals No. 1, filed by the respondent, and No.2 filed by the appellant. The two appeals were consolidated by the district court to form consolidated Matrimonial Appeals No. I and 2 of 2023 and were heard together. After a hearing, the District Court partly allowed the appeal, quashing the decision of trial court which held that a three-acre Pinus tree farm was not a matrimonial asset and that shops as well as plots in Mwanza were not proved to be matrimonial assets as well and the court ordered TZS 30,000.00 as monthly maintenance of their three minor children in custody of the respondent. This as well did not please the appellant and is now before Page. 1 Hon. AUGUSTINE RWIZILE this court on the following grounds; l. That the learned appellate District Court Senior Resident Magistrate erred in law to consolidate the petition of Appeal of the Appellant and that of the Respondent, instead ofAppeal as a Cross-Appeal. 2. That the learned Appellate District Court Senior Resident Magistrate erred in law and fact, when he failed to take into Consideration that the trial Court, did not give the Appellant an opportunity of calling Material Witnesses such as, one JOSEPH MFUMYA, who had planted and cared for the Mkaratusi trees in 3 Acres land farm, MZEE SHUKURU KAYOGOLO who had bought the 3 Acres Karatusi trees land farm for his daughter Mekiseda Shukuru, as per Exh P 1 Mekiseda Shukuru herself as the owner of the said land in question and also the village Chairman who had witnessed the said Sale Agreement, Jeneroza Senekela my mother in law they attended the trial court but were refused by the Court to adduced their evidence. 3. That the learned Appellate District Court Senior Resident Magistrate, erred both in law and in fact, when he failed to take into consideration the evidence of DW2 -Uejenia Ernest Dull, DW3 -Yasini Makopo DW4 - Joseph Malindo and DW5 -Leonard Ntambara, who testified to the effect, that Yasini Makopo sold the 3 Acres Mikarasi tree land farm to Sh11kuru Kayogolo who bought it for his daughter Mekiseda Shukuru, as per Exh Rt, DW4 Joseph Malinda who witnessed the said land farm sale money being paid by Mzee Shukuru Kayogolo to the vendor and DW5- Leonard Ntambara who all said the said 3 Acres land farm is not Matrimonial property but property of Mekiseda Sh11kuru. 4. That the decision of the Appellate District Court was against the weight of the Appellant's overwhelming evidence on record. 5. That the Appellate District Court Senior Resident Magistrate erred in law to order the Appellant pay respondent 1ZS 30,000.00, monthly children maintenance instead of ordering the said children to be under custody of the appellant their father as they are above 7 years old each able to be under custody of their father the appellant. 6. That the appellate District Court Resident magistrate erred both in law and in fact to order the appellant to get 60% and respondent to get 40% distribution of 3 acres Mkaratusi trees farmland, when the said land farm is not Matrimonial land farm. 7. That the appellate District Court Senior Resident Magistrate erred both in law and in fact to declare that the said 3 acres Mikaratusi trees land farm was Matrimonial property whereas it is not true as the dispute of land ownership was pending before the district land and Housing Tribunal, the Appropriate tribunal to decide dispute of ownership land. 8. That the appellate District Court Senior Resident Magistrate erred in law to distribute 50% each of Mkaratusi 3 acres Landfarm, At the hearing, both parties were unrepresented. The submission on the first ground by the appellant was that the first appellate court wrongly consolidated the two appeals instead of dealing with them as cross appeals. On the second ground, it was argued that the trial court did not allow his important witnesses to testify. According to him, the order was issued but did not allow them to testify even though they came to court. The witnesses who did not testify according to him are, Joseph Mfamya, Shukuru Kayogolo, Mekiseda Shukuru and Michael Mbuze. According to the appellant, the trial court said, the evidence was enough and so could not receive any more evidence. Hon. AUGUSTINE RWIZILE Page.2 The appellant's argument on the third ground is that eucalyptus trees were not a matrimonial property as he bought them when the respondent was not available. He added that after two months of marriage, she vacated the appellant's home. She then came back after two years, and then she left again. This, he said amounted to non- contribution of the asset acquired by the appellant. Advancing an argument on the fourth ground, the appellant stated that the property could not be divided among them, as they were not proved to be matrimonial properties. He added, his evidence was strong to prove the same The sixth, seventh and eighth grounds were argued together. It was submitted that ¼ of an acre and 3 acres, were not matrimonial properties. He further said, the respondent did not plant the trees therein, they are therefore not subject to division specifically 50% each. Opposing the appeal, the respondent generally argued all grounds together. She said, in 2020, she lived in the house that has leakages. She said, they were shifted to another house for rent. In the shamba, she argued was going alone, while the appellant lived in Mwanza. All that, she said, she lived with Children. According to her, the appellant did not leave anything for children. She said further that the land was bought by their joint efforts i,e quarter an acre where the respondent and their first child planted trees. According to her, it was proved in both the ward tribunal and District Land and housing tribunal that the properties were matrimonial. The appellant filed a case at Mnanila Primary Court and got divorce, but no distribution of the matrimonial property was made. At the D/court she said, they were allowed to divide the same. She further argued that it was the respondent and the child who planted trees. The children according to her, are in her custody. The appellant, it was added, does not provide for them at school and at home. There are debts at school. She finally asked for division of all the assets, or the appellant pay her for working as the house girl since 1996. In a rejoinder, it was submitted that in 2008, the respondent was away from the appellant. The appellant also added that he is the one who is paying school fees for their children. Having heard, the arguments of both parties, starting with the first ground. It is clear that when two parties are aggrieved by the decision of the primary court may appeal to the district court. Perhaps acting under section 20 of the Magistrates Court Act, as shown before, the respondent as well as the appellant were all not satisfied with the decision of the primary court. The respondent filed appeal No. 01, while the appellant filed appeal No. 2 of 2023. As I understand the term, cross-appeal occurs when both parties to a case appeal against the decision of the lower court, the one who appeals last is said to cross-appeal. Appeals to the district court is governed by the Magistrate Courts Act, there is no provision, and the appellant has not cited any, that shows the manner in which cross- appeals have to be filed and handled. The district court faced with the two-appeals, consolidated them. The record has it that, on 13th September 2023, Mr. Msasa learned advocate asked the court to consolidate the two appeals. There was no objection on the prayer and therefore an order for consolidation was made. None of the parties resisted the procedure. Consolidation of the appeals is a practice that is common in our jurisdiction, and I find nothing wrong with it, because the law provides that any person aggrieved by the decision of the Primary court may appeal to the district court just as they did. In the absence of evidence that the appellant was prejudiced by that procedure, which he has Page. 3 Hon. AUGUSTINE RWIZILE not demonstrated or that by so doing there was failure of justice, one would find no merit in this ground of appeal. It is dismissed. The second aground is baseless. It is stated that the district court ignored the fact that the appellant was denied the right to call his key witnesses. This being a second appeal, issues of evidence, as in this ground of appeal must have been first stated in the first appellate court. I have gone through the grounds of appeal by the appellant before the district court, only three grounds were filed, which dealt with other issues on evidence produced and the contribution of the parties towards acquisition of the matrimonial properties. None of them complained about failure to afford a chance for the appellant to call his important witnesses. It is trite that grounds not raised in the first appeal cannot be raised in the second appeal. The appellant did not do so. This ground has no merit. It is dismissed as well. Before delving into the 4th ground, which I think is similar to grounds 6,7 and 8, which will be determined together, I have to deal with the 5th ground of appeal. The appeal did not abandon this ground but as well did not advance any argument. It is about maintenance of the children. The trial court did not order any specific amount for maintenance, the district court ordered TZS 30,000.00 per month. The appellant claims, it was not right to award that amount because children are above 7 years and capable of living with their father. It is sad that, despite having no evidence before him on the means of the parties and whether the appellant is capable of paying that amount, still, the appellant did not ask for custody of the said children. Worse still, there is no evidence shown by the appellant that he is better suited to live with the children than the respondent. I find no merit in this ground of appeal as well. Because the order for maintenance may be reviewed, the appellant may, if he still wishes, file a separate application before the competent court for review of the maintenance order. The rest of the grounds focus on the pieces of land measuring ¼ an acre and 1 ½ acres. It is a matter of evidence to prove that properties subject of division are matrimonial assets. At law, section 114 of the Law of Marriage Act, enjoins the court to distribute properties jointly acquired by the spouses during their marriage and defines such property with references to assets acquired during the marriage to include assets owned before the marriage by one party but have been substantially improved during the marriage by the other party or by their joint efforts. The record shows the respondent tendered her evidence which was corroborated by Su2 who is the wife of a man who sold land to the appellant. It was said, it is ¼ acre. Other witnesses who testified in support were; Yasiri Makopo (SU3) who sold their family land to the appellant. The transaction was witnessed by Joseph Malindo and Leonard Njambara Ruborfa(SU4) and (SUS) respectively. The assets were sold to the appellant during pendency of their marriage. It is clear therefore, the same fall squarely in the definition of the matrimonial assets as defined by section 114 of the Law of Marriage Act. In distribution of assets, in a matrimonial proceeding the court must take into regard, the customs of the community to which the parties belong, but more so, the extent of the contributions made by each party in money, property or work towards the acquiring of the assets, debts owing by either party which were contracted for their joint benefit and the needs of the children, of their marriage. That done and said, courts must endeavor to do so for equality of division. That is why it is important for every party to the matrimonial dispute to bring sufficient evidence to prove how he or she contributed towards such acquisition. The appellant gave evidence and simply said, they had no properties except one shamba that was Hon. AUGUSTINE RWIZILE Page.4 acquired by their joint efforts. He informed the trial court that the respondent never lived with him, he denies even having all six children with her. I do not think; his evidence was sufficient as required by the law to prove wrong the findings of the trial court. It is for the foregoing reason therefore that the appeal has no merit. It is dismissed. I think, this is a fit case to order each party to bear its own costs. Dated at KIGOMA ZONE this 14th of August 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 5 Hon. AUGUSTINE RWIZILE