20160519 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF ,TANZANIA IN THE DISTRICT REGISTRY OF ARUSHA, AT ARUSHA CIVIL APPEAL NO. 25 OF 2015 (C/f in the District Court of Arusha Civil Appeal No. 22/2015 Originating from Arusha Urban Primary Court Matr. Cause No. 98 of 2014) GEORGE HUMBER MKONYA .......................................APPELLANT VERSUS LEONIDA CHOCHO MAIGE ....... .... ......................... RESPONDENT JUDGEMENT 1 DR. M. OPIYO, J The appellant George Humber Mkonya was dissatisfied by the decision of the District Court of Arusha in Civil Appeal No. 22 of 2015. This is a second appeal in the sense that the first appeal was to the District Court from the decision of Arusha Urban Primary court. In the first appeal the respondent herein was dissatisfied by the decision of the trial court on division of matrimonial property where the appellant herein was entitled to 60% and ' her 40%. The first appellate court revised the decision of the trial court by offering 70% of the Matrimonial Property to the respondent and defendant remained with 30%. This decision dissatisfied the appellant herein who · preferred the appeal on three grounds. 1 1 1. That the District Resident Magistrate erred in Law and facts by drawing Judgment relying on flimsy and unreliable evidence on the sale of matrimonial properties(a house located at Musoma) while knowing that there had been no any dispute objecting the sale of the properties Located at Kinesi, Musoma without respondent's consents. 2. That the District Resident Magistrate erred in Law and facts in relying on the case of Bihawa Mohamed vs Ally Seif (1983) TLR 32 for awarding the respondent 70% of the Matrimonial Properties led to injustice. 3. That the appellant having stated in evidence that he was the one who was working and contributed much in their matrimonial properties, the District Resident Magistrate erred in Law and fact for not deciding in the appellant's favour by awarding him 30% of the matrimonial properties. Both parties were unrepresented in this appeal. In support of the appeal, the appellant submitted shortly that he being the bread earner of the ' fam.ily, he is the one who build that house and, other properties acquired in i the family while his wife was a house wife, it iQ not fair for her to get more (70%) than him who actually acquired the same . getting only 30%. I He also stated that the House at Kinesi was sold before divorce and thus it I I was not a subject of division as matrimonial property during divorce. 2 Respondent on her part submitted that they got married way back in 1973 and problem only started when appellant got married to a new wife. And that the House at Kinesi was renovated and sold in 2012 and, she was not given a single cent out of the proceeds. And as of now the appellant is receiving pension from both United Nations and the Army, where he both worked and not giving her anything. She further submitted that, her prayer is for the house at Sombetini to remain for the family as he is the one who left her in that house, so he can always go back home whenever he wishes so that they die together. About her contribution, she submitted that she also contributed in acquiring the house through petty business. In rejoinder the appellant shortly stated that the respondent had also sold some Iron sheets and goats that they acquired together. And that he cannot dare go back to the respondent as he has already contracted HIV positive, she will kill him with her sharp words as she always do. I All the grounds of appeal will be disposed together as ithough kept I I separated they all revolve around the same thing, dissatisfaction with I 1 division of matrimonial property after divorce between the ~ppellant and the respondent. i There is no dispute that the two are now not husband and I I ife since the I I divorce order had already been issued. Also there is no dispute on the 3 division of the other Matrimonial properties but just on th e house at 1 Sombetini as they describe it. Major point of consideration in division of matrimonial is t~e extent of contribution made by each party in monetary form, property or work I ' I towards the acquiring of the asset in question as per section 114 (2) of I the Law of Marriage Act, Cap 29 R.E. 2009. ! i I In determining the extent of contribution, the records are that, it is the . I . ' I appellant who was working and can poin:t to the actual monetary contribution he made towards acquiring of the said house. The respondent's contribution is mainly through wdrk and as she cannot clearly l ' I state the amount she contributed from her undisclosed kind of petty ' businesses towards acquiring the property. Luckily, I be it work or money, i under the law both constitutes a valid contribution (efforts) in ~cquiring the same. The case of Bihawa Mohamed (supra), by recognizing house works, say it all in terms of house works contributions.However, irrespective of the fact that the cases dol recognize con~ributions of whichever nature, it is not easy to determine the actual amount of I contribution of each party in such circumstances. In other words, there is no straight forward formula applied in su¢h situations in! division of ' ' matrimonial properties. Therefore, in such circumstance, awarding more to a party implies her/his I contribution is more than the other. The records . show thatI the District 4 I • Court awarded 70% to respondent and 30% to the appellant.By necessary implication, it means respondents contribution is more by 40% than the appellant's contribution. In my view, these implied facts do not tally with the actual facts on record on how the house in question was acquired. It is stated that the same was acquired through loans repayable through deductions from the appellant's salary. The respondent's petty business proceeds, if at all contributed indirectly by getting done, other household needs. With such facts in place, I find it hard to believe that petty business' contribution can be more by 40% than theloan amount financed by the ; appellant's salary. Under normal circumstances one would expect the latter to be more as it was held by the trial court who favoured the ratio of I 60% by 40% to the appellant and respondent respectively. But for what I am going to say I would go for equal share for each. The parties in question are elders of over 60 or 70 years which means they devoted all their useful life (in terms of work) to each other, just to divorce at the time when each is already physically worn out. None of them can start afresh an earning plan to sustain his elderly life. Thus 50%, to me is not only is not only looking to the amount of contribution but also the amount of time one wasted on one another to the extent of not being able to easily took off on one's own. I am therefore convinced that the fairest of all will be equal shares in their matrimonial properties without over emphasizing on ones contribution while there is other factors affection it. 5 I therefore allow the appeal and reverse the decision of the District Court of Arusha and order for 50% (fifty percent) share in the proceeds of their I matrimonial house at Sombetini. No order as to costs. (Sgd) DR. M. OPIYO, I JUDGE 28/4/2016. I hereby certify this to be a true copy of the original. DEP, <7i I ARUSHA q1s/tl 6