hadija nassoro katambo vs mohamedi athumani mpojo 2023 tzhc 23105 30 november 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA PC CIVIL APPEAL NO.9 OF 2023 (Arising from Masasi District Court in Matrimonial Appeal No. 13 of2022 and originating from Lisekese Primary Court in Matrimonial Cause No.30 of 2022} HADIJA NASSORO KATAMBO.......... .............................APPELLANT VERSUS MOHAMEDI ATHUMANI MPOJO..................... RESPONDENT JUDGEMENT & 30!! /11/2023 LALTAIKA, J. The appellant herein, HADIJA NASSORO KATAMBO, instituted the Matrimonial Cause No. 30 of 2022 at Lisekese Primary Court against the respondent. The appellant petitioned for decree of divorce and distribution of matrimonial assets. The parties herein celebrated their marriage through Page 1 of 12 Islamic rites in 2Q08. During the lifetime of their marriage as spouses they were blessed with two issues namely Ciza Mohamed (14) and Mohamed Mohamed (4). Furthermore, it is alleged that during the peaceful moments of their marriage the parties jointly acquired properties claimed to be matrimonial assets. The assets include one house, one motor car; one motorcycle, a plot of land and the households. After litigating the parties, the trial court dissolved the marriage by issuing a decree of divorce and divided the matrimonial assets. Dissatisfied with decision of the trial court the respondent instituted the Matrimonial Appeal No.13 of 2022 at the District Court of MasasL The district court as the first appellate court revised the division of the matrimonial assets which were divided by the trial court. Again, dissatisfied the appellant has lodged the present appeal predicating eight (8) grounds of appeal which I take liberty to reproduce herein below: - 1. That the Honourable learned Magistrate erred in law and fact by quashing and rectifying division of Matrimonial properties regarding to house. 2. That the Honourable Magistrate erred in law and in fact by granting the house acquire byjointeffort only to respondent. 3. That the Honourable Magistrate erred in iaw and in fact by ordered the respondent to build a two-room house with a veranda without considered the agreement between the appellant and respondent that they buy a plot to appellant's daughter one hope Mohamed with the agreement that matrimonial house be the property of the appellant and her children, 4. That the Honourable Magistrate erred in law and in fact by holding that Motor Vehicle and Motorcycle were no longer matrimonial properties having been sold before filling of the suit in the trial Primary Court without evidence in record. 5. That the Honourable Magistrate erred in law and in fact distributing matrimonial properties unfairly thereby giving the Respondent valuable properties compared to the Appellant. 6, That the Honourable Magistrate erred in law and in fact by distributing matrimonial properties without considering criteria provided for under the law. Page 2of 12 7. That the Honourable Magistrate erred in law and in fact in its orders for division of the matrimonial assets, as it did not take into account its own findings as to the appellant's contribution to the said matrimonial assets, thereby making that are inconsistent with the said findings. 8. The Honourable Magistrate erred in la w and in fact by ordering that Mohamed Mohamed Mpojo aged 5years old be stayed with the respondent while the respondent is not taking a good care ofhim. During the hearing of this matter, the parties appeared in person and unrepresented. The hearing commenced when I welcome the appellant on podium to address her appeal. The appellant submitted for the first ground of complaint that the trial court had decided that they divide the house by 50% to 50% because both of them worked to acquire the property. However, she contended that the district court decided that the respondent builds her a new house with three rooms without taking into account their agreement when they were still married. More so, the appellant submitted further that the learned magistrate advised them that they buy a plot for their daughter Hope Mohamed and the house would belong to her and her children. Submitting on the second ground of appeal, the appellant contended that the house was built in 2013. The appellant insisted that she was already a wife and had one child with him. The appellant went on and submitted that she contributed cash from the plot stage She gave the appellant TZS. 300,000 and the appellant added TZS. 100,000/= and they got the plot for TZS. 400,000/=. Furthermore, the appellant submitted that she took TZS. 600,000 from her savings from VICOBA and gave the respondent to buy iron sheets (bati). Page 3 of 12 The appellant went further and submitted on the third ground of appeal that the respondent had a daughter from another marriage, her name is Hope Mohamed. The appellant submitted that she was the one who took care of her until she completed FORM 6. The appellant averred that they agreed that they buy a plot for her so that she can stay with the children in their matrimonial house. The appellant stressed that she is not ready for the respondent to build for her. The appellant submitted that they are in conflict, how can the appellant build for her. As to the fourth ground of appeal the appellant submitted that the car and the motorcycle are still there. She contended that the appellant lied to the court about their presence. However, she submitted that if any of them was later sold, she does not know. The appellant insisted that the car was involved in an accident, but they renovated it. He stressed that the respondent wants to use the property alone. However, she insisted that they bought them while in marriage. The appellant submitted further that she got money from the probate of her daughter. Additionally, the appellant submitted that in 2015 she got TZS. 4,000,000/= as contribution for a traditional ceremony from her fellow women. The appellant contended that she used the 4 million to buy a car. Regarding the fifth ground, the appellant submitted that it is true valuable things went to him: house, car, plot of land. While on her part, the appellant has only been promised that the respondent would build for him a house. Furthermore, the appellant submitted that if that is the case for Hope what about her children with the appellant. Page 4 of 12 The appellant went further and submitted on sixth ground of appeal that the district court did not consider her contribution. She insisted that the district court proceeded to give ail the valuables to the respondent. More so, the appellant averred that she would have preferred 50% by 50% as the Primary Court decided. The appellant went on and contended that she was not a mere housewife, she fought hard. Additionally, the appellant submitted that she is a seasoned fundi cherehahi. She submitted that the appellant has taken even her personal things like clothes which are now used by his siblings. Submitting on the seventh ground, the appellant submitted that in the Primary Court she explained how she contributed to the property. The District Court did not act professionally. More so, the appellate magistrate threatened to take her to prison, indeed she was scared. The appellant told learned magistrate that he left everything in their matrimonial house. The appellant contended that she did not have even a place to sleep. Furthermore, she submitted that the magistrate was meeting with the respondent. On top of that the appellant stressed that she was sick (nilijifungua kwa operation) but the magistrate never allowed her to stay home until she got healed. It was the appellants submission on the eighth ground of appeal that the boy is still young; he is only 6. The appellant submitted that when the respondent goes to buy chicken in the villages, he lives him without any care. Thus, she prayed to be given her son. The appellant insisted that she has no peace in letting him to take care of him. More so, she contended that she is the mother and no one can take care of him like she can do. The appellant Page 5 of 12 went on and submitted that the magistrate did not deal with the fact that the child she has is his. However, the District Magistrate told her that she was a prostitute. To this end, she contended that she is ready for a DNA test. In addition, she averred that she needs the appellant to be given child maintenance for the children. In response, the respondent submitted on the first ground that the Primary Court decision was not right. The respondent was the one who worked to build the house. He insisted that the appellant was a mere house wife and she never contributed anything. The respondent contended that the Primary Court did not act fairly. However, he submitted that he agree with the decision of the district court. He submitted that he accepted to build the house for her and remain without house because he was the one who got custody of the children. He insisted that the go to school one is in Chingutwa and another is in a nursery school in Nyasa area. Responding to the second ground, the respondent contended that he built the house in 2012 not 2013. The respondent stressed that he got the deal as an agent of sesame for Indians. Furtheermore, the respondent submitted that he bought the plot for TZS. 500,000/- and the one who sold it to him is there and can bring him. The respondent submitted that it is true he got the young people to make the bricks for him. However, the appellant submitted that when it was time for roofing, he had no money. The appellant went to his brother, and he introduced him to an Indian who gave me 60 iron sheets. To this end, the respondent contended that it is not true that the appellant gave him TZS. 600,000/=. Page 6 of 12 As to the third ground, the respondent contended that they never had such an agreement. He insisted that as the head of the family, he bought the plot and paid only half. More so, the respondent submitted that he told the appellant that he bought the plot for Hope. The respondent went on and replied that while still working with the Indians as their agent he bought a motorcycle. He insisted that he gave it to a young man to use as a bodaboda. The appellant submitted further that later it was stolen but they got it back from Mangaka. However, the respondent averred that he sold it to his sister (Mama Cecy). The respondent insisted that he got the money and bought a car for 10 million. He agreed that they bought the car and the motorcycle while still a couple. The respondent contended that the car was involved in an accident, and he was advised to either buy a new engine or sell it as used iron (scrap metal). Moreover, the respondent submitted that he gave her the money they got from selling the scrap metal 3,500,000. He insisted that later he took it and •bought "Mbaazi". The respondent contended that he got a loss as he sold it for 130/=. He averred that they were together for six years after that. The respondent went and submitted that the motorcycle he has does not belong to him, was given by GOPU for purposes of distributing the money to customer. The respondent responded to the fourth ground and contended that everyone has his/her own plans. The respondent contended that as for the house, he was ordered to build for her. However, the rest of the properties are not there and had already become bankrupt. The respondent submitted Page 7 of 12 that as for the children he has with her, he is still alive. He contended that he was once advised to ensure that he buy plots for his children. Furthermore, replying the sixth ground, he contended that he believe that the magistrate acted justly as per the law. He insisted that what the appellant says that she contributed is not true. The respondent averred that they once had a fight about 8 years ago and told the appellant that her fundi cherehani business was not profitable. On the seventh ground, the respondent argued that everyone has his own perspective. The respondent submitted that he never heard learned magistrate threatening the appellant with imprisonment. More so, the respondent contended that as far as witnesses are concerned the district court decided after going through the records. He stressed that he has not told the appellant not to come and collect her property. However, the respondent submitted that the appellant took the keys and later returned. Responding to the eighth ground, the respondent submitted that lived with the appellant for 19 years. He insisted that they never begged for food from anyone. The respondent submitted that he took care of her all those years. The respondent averred that he cannot agree that Mohamed is not being taken care of. Furthermore, the respondent got surprised for being told to take care of the third born while he did not have a child with any other woman. The respondent contended that he just needed children from her and he lives with two house maids. He stressed that the maids are the ones who are taking care of his children. However, the respondent submitted that as for the third born: he was told that she was pregnant. Page 8 of 12 In very brief rejoinder the appellant submitted she is a fundi cherahani. The appellant averred that she earned an income also through VICOBA and contributed to the building of the house. Moreover, the appellant submitted contended that she also did not accept the custody. The appellant submitted further that he is not insane. The appellant stressed further that she knows the properties are there. Finally, the appellant submitted that no witness has come to testify for respondent. I have dispassionately considered the records of the lower courts, grounds of appeal, and rival submissions by both parties. I am inclined to determined the merit or otherwise of the matter at hand. In fact, I deal with two issues. The first issue is whether the first appellate court considered correctly the evidence of how each party in this matter contributed to the acquisition of the matrimonial assets. The second issue is whether the first appellate court correctly ordered the custody of children to the respondent. Starting with the first issue of division of matrimonial assets of the parties after dissolution of their marriage and issuance of decree of divorce. The power to divide matrimonial assets jointly acquired is given only the court. This power is featured under section 114 of the Law of Marriage Act [Cap. 29 R.E. 2019]. The provision of law gives the court various factors to be considered when dividing the matrimonial assets jointly acquired by the parties during the life time of their marriage. For easy of reference, section 114 of the Law of Marriage Act "114. (1) The court shall have power, when granting or subsequent to the grant of a decree ofseparation or divorce, to order the division between the parties of any assets acquired by them during the marriage by Page 9 of X2 theirjoint efforts or to order the sale of any such asset and the division between the parties of the proceeds ofsale. (2) In exercising the power conferred by subsection (1), the court sha/ihave regard- fa) to the customs of the community to which the parties belong; (b) to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) to any debts owing by either party which were contracted for theirjoint benefit; and (d) to the needs of the infant 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 theirjoint efforts." Furthermore see, the Court of Appeal of Tanzania in Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo (Civil Appeal 102 of2018) [2020] TZCA 31 (20 February 2020). Based on the above provision of law and decision, I am fortified that the district court erred in revising the decision of the trial court. I am saying so because the reasoning given by the learned appellate magistrate does not sound. Indeed, what the trial court decided as far as the matrimonial assets are concerned is right. My settled position is confined on how it evaluated the evidence of both parties on the extent of contribution. For easy of reference, I will reproduce page 16 and 17 of the typed judgement of the trial court which reads:- "Hivyo Mahakama hi! inaungana na mdaiwa kwamba kiwanja sio mail ya ndoa hakiwezi kugawanywa iakini mall nyingine zote yani Nyumba,gari Noah,pikjpiki na Page 10 of 12 vyombo vya ndani ni matt ya ndoa kwakuwa matt hizo zimepatikana katika sikuza furaha za maisha ya ndoa kwakuwa matt hizo zimepatikana katika siku za furaha za maisha yao ya ndoa hivyo zinastahitt kugawanywa kwa kuzingatia mchango wa kiia mmoja katika upatikanaji wa matthizo. Mdai ameeieza kipindi anaishi na mdaiwa attkuwa fundi cherehani na attkuwa anajishughuttsha na vfkundi vya kinamama vinavyojuttkana kama vikoba na mpeano vittvyokuwa vinampa pesa zittchongia kuendesha famitta na upatikanaji wa matt zao. Mdai ameeieza zaidikwenye upatikanaji wa nuymba aiichangia Tshs300,000/= attzopata attpovunja kikoba kwenye ununuzi wa kiwanja. Tshs.600,000/= attzopata kwenye kikoba kununua bati za nyumba kwa hivyo ameshirikiana na mdaiwa kuanzaia kwenye ununuzi wa kiwanja mpaka ujenzi wa nyumba. Mdai ameeieza zaidi aiichangia Tshs 4,000,000/= attzopata kwenye mpeano wa unyago kuongezea heia ya kununutta gari.Attchangia Tshs 1,000,000/= attzopata kwenye mirathiya baba yake kwenye ununuzi wa pikipiki.Hivyo kwa mujibu wa maeiezo ya mdai hakuwa mama wa nyumbani tu attkuwa ni mwanamke anayeshughiishsa kwa manufaa ya famitta yake akisaidiana na mdaiwa ambaye wakati wameoana attkuwa muuza kuku. Kwa upande mwingine mdaiwa amee" In short it enough to say that the trial court critically evaluated and considered the contribution of each party to the acquisition of the joint matrimonial assets. Therefore, l am fortified that the division of the outlined matrimonial assets to 50% to 50% is fair and equitable. Regarding the issue of custody of children, this court will refrain to deal with it because it was not among the prayers of appellant petitioned at the trial court. Therefore, I am of the settled position that the lower court dealt with the issue of custody of children when it was not prayed by either party. It wise for any interested part to apply for the custody and maintenance of children. Page 11 of 12 Said and done, I allow the appeal by upholding the decision of the trial court on the division of matrimonial assets determined by the trial court. More so, the decision and orders by the district court are quashed and set aside. Furthermore, I quash and set aside the order relating to the custody Judgment delivered this 30th day of November 2023 in the presence of both parties who have appeared in person and unrepresented. Page 12 of 12