GRACE NGONGO UBOTE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CONSOLIDATED MATRIMONIAL APPEAL NO. 27374 OF 2023 (Arising from Matrimonial Appeal No. 59 of 2022 of the District Court of Ilemela; Originating from Matrimonial Cause No. 29 of 2022 of Buswelu Primary Court) GRACE NGONGO UBOTE..…...………………..………..………………….…APPELLANT VERSUS KENEDY GESAINA BHOKE….…..….…..……………………….…………RESPONDENT JUDGMENT 19th June & 28th June, 2024. Kilekamajenga, J. The record shows that, back in 2004, the respondent and another woman, whose name is withheld for privacy reasons, contracted a customary marriage and were blessed with one child. Their customary marriage was celebrated in December 2004 at Getega Village in Tarime within Mara Region. The two engaged in diverse economic activities for their livelihood. They finally set up a shop which the respondent left it in the hands of his wife; the respondent relocated to Kahama mine for green pastures. Good lucky seemed behind their doors as the respondent secured a capital of Tshs. 50,000,000/=. In 2007, the respondent and his wife relocated to Mabatini – Mwanza where they setup their shop. In 2009, they bought a plot at Bujingwa Steet in Mwanza and immediately commenced construction of a house. The respondent’s wife conceived something which brought delivery ramifications prompting blood transfusion. The wife regained and conceived again. 1 When attending the maternity clinic, the wife was diagnosed with HIV. As the wife was faithful to her marriage, she went back to her husband and persuaded her husband to take an HIV test. The husband was found HIV-negative. The wife, being so generous to the respondent, agreed to stay with him, albeit, without cohabitation. Furthermore, the wife allowed the respondent to find another woman. They further agreed that the new wife and the respondent would occupy one room within the matrimonial house at Bujingwa. Alas, the agreement was a turning moment for a happy marriage between the wife and the respondent. The respondent became unfaithful to his marriage and perennial squabbles became the order of the day. The wife found the marriage life intolerable and hence filed a petition for divorce in the Primary Court of Ilemela in Mwanza vide Matrimonial Cause No. 37 of 2015. The wife sought, interalia, a divorce decree, custody of the child and division of matrimonial assets. In their marriage, they acquired the following properties: one house located at Bujingwa with an area for poultry, one undeveloped plot, one motorcycle, a generator, one bicycle, one sofa set, three beds and their mattresses, a music system, a TV set, a shop at Mabatini, a refrigerator, an M-Pesa shop and other household items. In the eyes of the trial court, the marriage was broken down beyond repair and the divorce decree was 2 granted. The court went further ordering the distribution of matrimonial assets. The decision to dissolve the marriage was delivered on 19th May 2015. The respondent appealed to the District Court of Nyamagana vide Matrimonial Appeal No. 13 of 2015. The District Court set aside the decision of the Primary Court for the mere reason that the parties did not go through the reconciliation board before filing the divorce petition. Thereafter, the respondent re-established his relationship with his wife. While the dispute between the respondent and his wife was pending in the Primary Court, the respondent officiated a civil marriage with the appellant at Tarime District on 11th November 2015. Unluckily, his new marriage was not blessed with any issue. The new marriage seemed a disgrace and on 08th September 2022, the appellant petitioned for divorce against the respondent in the Primary Court of Buswelu in Mwanza. In the interest of justice, though this is a second appeal, I feel obliged to revisit the evidence adduced during the trial. The appellant testified that, she contracted a civil marriage with the respondent in 2015. At that time, she was working in Musoma hence she occasionally visited the respondent. She further informed the court that she injected her money in the shop at Mabatini. She further alleged to have contributed towards improving of the house at Bujingwa especially by setting 3 up a fence. They set up a poultry farm, pig farm, and cow farm which later the respondent sold but the appellant did not get the proceeds. In his testimony, she consistently blamed the respondent for being irresponsible by failing to manage the projects. In 2018, the appellant was transferred to Mwanza. She told the trial court that, the respondent sold his motor bicycle and they bought a new one. The respondent ventured into the bodaboda business which was not fruitful. She further blamed the respondent for disposing of the shop items. She further assailed the respondent for establishing another love affair with another woman apart from the first wife. PW2, the secretary to the Ward Tribunal, testified that, the appellant filed a dispute in the tribunal but the reconciliation failed. The Ward Tribunal visited the respondent’s home and found the first wife. PW3 (WP7083) testified that, the appellant filed a criminal case against the respondent. In that case, the appellant complained of being assaulted by the respondent. In the defense, the respondent confirmed to have married the appellant in 2015. He further testified that, after their marriage, the appellant was harboured for one month in the matrimonial house before she was employed in Musoma. Thereafter, they used to meet occasionally. The respondent remained in Mwanza where he 4 continued with his businesses including agricultural activities and farming. He confirmed to have a shop and other economic activities which he started with his first wife. He informed the court that, in 2015, he had a dispute with his first wife and the matter was determined by the Primary Court of Ilemela. In that case, the properties subjected to division are the same properties claimed by the appellant. He tendered a copy of the judgment of 2015 which was admitted as exhibit D1. He insisted that, the appellant was aware of the first wife even before contracting the second marriage. He further stated that, while the appellant was in Musoma his dispute with his first wife was resolved and they continued to live together as husband and wife. Despite paying a dowry for the appellant, he also funded her to take up his Diploma studies in nursing at Sumve. The appellant graduated from her diploma course in 2020. Even after studies, the appellant was accommodated in the first wife’s house. The dispute arose after the appellant blamed the first wife for bewitching her not to conceive. In 2021, the appellant relocated to another place with a cash of Tshs. 4,700,000/= together with some household items. Since then she never returned. On 30th July 2022, the respondent married another woman. The respondent insisted that, he has properties worth more than Tshs. 80,000,000/= before marrying the appellant which he acquired with the first wife. 5 He consistently denied the allegation that, the appellant contributed to the improvement of the house because he commenced construction in 2009 and completed it in 2010. After marrying the third wife, the appellant took the matter to court. DW2, the respondent’s first wife, confirmed to have accommodated the appellant in her matrimonial house before relocating to Musoma. She insisted that, the house at Bujingwa and other properties claimed by the appellant belong to her. The appellant contributed nothing to the house and acquisition of the contested properties. DW3, the respondent’s child, testified that, the appellant disappeared from the house with all the household items. DW4, the respondent’s neighbour and the person who sold the plot to the respondent, insisted that the respondent bought the land with the first wife. When the appellant married the respondent, she found the house, and the poultry, cow, and pig farms. She witnessed the completion of the house and vehemently disputed the appellant’s allegations. Availed with the above evidence, the trial court did not find any contribution made by the appellant in the contested properties. The trial court dissolved the marriage though there was nothing to divide. The appellant appealed to the District Court of Ilemela with two grounds which all revolved around the contribution made by 6 her to the contested properties. In the District Court, the appeal was argued by way of written submissions and finally ordered compensation of Tshs. 8,000,000/= to the appellant. Irked with the decision, the appellant approached this court for further justice on two grounds that: 1. That, the learned Appellate Magistrate erred in law and fact after appreciating the efforts of the appellant towards contribution of matrimonial properties failed to include and order the division of matrimonial property being the house situated at Bujingwa Area- Mwanza and ended up in awarding only compensation of Tshs. 8,000,000/= to be reward of the appellant effort towards the acquisition of all the joint acquired matrimonial properties. 2. That, the appellate Magistrate erred in fact and in law for failure to re- evaluate and reconsider the evidence adduced in the trial court, so as to deliver the right verdict on what exactly the appellant is entitled following the breakdown of the parties’ marriage. On the other hand, the respondent also filed a cross appeal with one ground that: 1. That, the first appellate court erred in law and in fact for ordering the appellant to compensate the respondent at a tune of Tshs. eight million (8,000,000/=) while there was not tangible evidence to prove that the respondent contributed to the existence of the alleged projects. Ready to defend her appeal, the appellant who appeared in person also enjoyed the legal services of the learned advocate, Mr. Ondijo Silvanus. The counsel urged 7 the court to reconsider the evidence adduced in the trial court. In his view, the evidence of the trial court should be re-evaluated for justice in this matter. He referred the court to the case of Ramadhani Hamisi v. Republic, Criminal Appeal No. 121 of 2017, CAT at Mwanza on page 10. On the distribution of matrimonial assets, the counsel directed the court to page 3 of the trial court proceedings arguing that, the appellant was an employee and part of her salary was injected into the welfare of her family. She contributed to the house's improvement, including the construction of the fence. On page 4 of the trial court proceedings, the parties bought chicken and two cows. The respondent later sold the cows for 2.5 Million shillings. Thereafter, they secured a loan, and the copy of the loan form was admitted as exhibit P4. They also had an old motorbike which they sold and bought a new one. The appellant never benefited from the motorbike business. Also, they had a shop which the appellant contributed to its establishment. They bought another cow which was later sold. After all that, the respondent advised the appellant to invest in the poultry business. The appellant injected one million into the business. The appellant did all these for the welfare of the family. Based on these facts, the Primary Court and District Court miscarried justice in this matter. 8 The counsel stressed that, the parties are married and the appellant has been a government employee until now. The respondent did not object to the improvement stated by the appellant on page 8 of the trial court proceedings. Also, the respondent did not object to the contribution made by the appellant. He argued further that, the allegation that the respondent was married before marrying the appellant is not substantiated and the contribution of the first wife is not stated. It was therefore injustice for the court to deny the contribution made by the appellant in the matrimonial properties. The respondent was fully involved in the business whereas the appellant worked as a government employee. The appellant started working in 2015 and she indeed found the house already constructed and only contributed to its improvement by getting loans and injecting the same into the family project. The appellant deserves a fair share in the matrimonial properties. The counsel supported the argument with the case of Nicholaus Thomas Morewa v. Petronela Ibrahim Swalehe, Civil Appeal No. 39 of 2022 on page 14. He urged the court not to let the appellant go empty- handed. The court should consider the efforts of the appellant. In the cases of Mohamed Abdallah v. Halima Isangwe, [1988] TLR 197; Pulcheria Punduga v. Samwel Huma Pundugu 1985 TLR 7, the principle underlying the division of matrimonial property is one of compensation. In his view, the appellant 9 should be compensated for the improvement of the house and other properties that the appellant put her financial efforts. On the other hand, the respondent who appeared in person stressed that, he married his first wife in 2005 under customary rites. He bought the contested plot of land in 2007. In 2010, they constructed the contested house after. In 2015, he married the appellant who was temporarily allocated a room in the house. She stayed in the room for one month before securing employment in Musoma. The respondent continued to live with his first wife in the house. He continued to manage the shop in Mabatini which the appellant never contributed. The respondent further confirmed that, a misunderstanding between him and the first wife ensued in 2015 prompting a matrimonial case at Ilemela Primary Court. He further argued that, he has been an entrepreneur throughout his life. He insisted that, he acquired the house with his first wife before he married the appellant. He also urged the court to consider the evidence adduced during the trial. When rejoining, the appellant’s counsel argued that the respondent was married to one wife. It is a cardinal principle that whoever contributes to the matrimonial house has the right to division. The first wife did not show her contribution to the contested property. The trial court's record shows that the respondent was an 10 entrepreneur something which needs capital. The appellant has indicated how the appellant was supporting the respondent. The respondent started the business after being supported by the appellant. As domestic works contribute to the acquisition of the matrimonial property, the appellant deserves much more. The appellant did more than contribute through domestic activities as stated in the case of Bi. Hawa Mohamed v. Ally Seif [1983] TLR 32. The appellant deserves her share though not necessarily fifty-fifty. He urged the court to reconsider what transpired in the court proceedings and to come up with its findings for justice. In this appeal, the appellant is challenging the decision of the first appellate court arguing that, after appreciating the efforts toward contribution in the matrimonial properties the court failed to order the division of such matrimonial properties, especially the house situated at Bujingwa in Mwanza but ordered compensation at the tune of Tshs. 8,000,000/=. In addressing this ground, I wish to revisit the relevant provision of the law on the division of matrimonial properties. Section 114 of the Law of Marriage Act provides that: 114 (1) The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. 11 (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, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. (Emphasis added). There are relevant issues gleaned from the above provisions of the law; first, the property subjection of division must have been acquired during the marriage. Second, such property may have been owned by either of the parties which have been substantially improved during the marriage by the other party by their joint efforts. Third, the party must prove the joint effort injected in the acquisition of the property. Fourth, the party seeking division must prove the extent of contribution he/she made towards the acquisition of the matrimonial property; the contribution may be in terms of money, property or work. Fifth, the order of division shall take into consideration the customs of the community to which the 12 parties belong; any debt contracted for their joint benefit and the needs of the children. Sixth, the division shall incline towards equality unless there are reasons to the contrary. Seventh, such properties must be in existence at the time the court orders division. In this case, certain facts are not in dispute: the appellant married the respondent on 11th November 2015. The appellant was accommodated for one month in the matrimonial house of the respondent and the first wife. Thereafter, the appellant secured a job in Musoma and occasionally met the respondent in Mwanza. Later, the appellant went to study at Sumve and graduated in 2020. After shifting to Mwanza, the appellant still took refuge in the house of the first wife. Also, there is no doubt, the respondent established the shop at Mabatini some years before marrying the appellant. The respondent completed the contested house in 2010 i.e. five years before marrying the appellant. The appellant alleged to have improved the contested house something which is not substantiated. Before the respondent married the appellant, he had a dispute with his first wife leading to Matrimonial Cause No. 37 of 2015. In that case, the first wife sought division of the house and other matrimonial properties. As stated above, the respondent and his first wife finally resolved their differences and they are still living as husband and wife. The properties subject to division in the Matrimonial Cause No. 37 of 13 2015 are the same properties the appellant is alleging to have acquired with the respondent. Furthermore, it is illogical to believe that the appellant improving the house she never owned. The allegation that she secured a loan and injected it into the contested house has no proof. Throughout the evidence, the appellant blamed the respondent for misappropriating the projects. The evidence clearly shows that the alleged projects that the appellant established with the respondent collapsed before the matter arrived in court. Under such circumstances, the court could not have divided nonexistent properties. Generally, there is no evidence to prove whether the appellant acquired any property with the respondent. I therefore find the first ground devoid of merit and hereby dismiss it. The above analysis also answers the ground raised by the respondent in the cross-appeal. On the second ground, the appellant blamed the first appellate court for failing to reconsider the evidence adduced during the trial. I have already displayed the evidence adduced during the trial and how the trial court was convinced that the appellant never acquired anything in joint with the respondent. When the matter went for appeal, the District Court awarded compensation to the appellant at the tune of Tshs. 8,000,000/=. In my view, the first appellate court was not justified in awarding the compensation as the appellant had nothing to share with the 14 respondent. I entirely agree that, the appellant and respondent contracted a civil marriage, which under the existing evidence, has broken down beyond repair. However, so long as they never acquired any property during their marriage, there is nothing to divide. I am confident and unreservedly find the contested housing belonging to the first wife which she acquired with the respondent before the appellant got married. This ground also lacks merit. In conclusion, though the appellant was legally married to the respondent, she did not jointly acquire any property with the respondent. The contested house and other property allegedly acquired by the appellant were the same properties listed in Matrimonial Cause No. 37 of 2015. That case landed in court before the appellant married the respondent. There is a dearth of evidence to prove whether the appellant made substantial improvements in the house located at Bujingwa. The appellant was accommodated for one month in the house before relocating to Musoma where she worked as a Ward Attendant. The allegation that the appellant established several projects with the respondent is not substantiated. Overall, at the time when this dispute came to court, such projects had collapsed, hence there was no property for division. The trial court was right in granting the divorce decree but without an order of division of matrimonial properties because there was no property jointly acquired by the appellant and respondent. The first appellant court 15 erred in granting compensation to the appellant because there was no matrimonial property in their marriage. Therefore, the advanced grounds of appeal lack merit. I dismiss the appellant's appeal and allow the respondent’s case. The appellant has a right to a divorce decree without division of matrimonial assets nor custody of children. I hereby set aside the decision of the District Court of Ilemela and uphold the decision of the trial court. No order as to costs. Order accordingly. DATED at Mwanza this 28th Day of June 2024. Ntemi N. Kilekamajenga. JUDGE 28/06/2024 16 Court: Judgment delivered this 28th Day of June 2024 in the presence of the appellant and respondent. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 28/06/2024 17