haji ngura vs mary simon mwanga 2021 tzhc 10171 3 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA MATRIMONAL APPEAL NO. 2 OF 2021 (Originating from the District Court of Dodoma at Dodoma in Matrimonial Appeal No. 24 of 2019 and Matrimonial Cause No. 51 of 2019 of Mako/e Primary Court) HAJI NGURA............................................................................. APPLICANT VERSUS MARY SIMON MWANGA............................................................. RESPONDENT JUDGMENT 18/10/2021 & 03/12/2021 KAGOMBA, J HAJI NGURA (the appellant) is challenging the judgment and decree of the District Court of Dodoma at Dodoma (1st appellate Court) delivered on 30th December, 2020 by Hon. D. J. Mpelembwa, (SRM) in Matrimonial Appeal No. 24 of 2019. The impugned decision of the 1st appellate Court confirmed the decision of Makole Primary Court (the trial Court) which granted a decree of divorce and an order of distribution of Matrimonial properties between the appellant and MARY SAIMON MWANGA ("the respondent"). Three grounds of appeal were filed to demonstrate areas of dissatisfactions with the decision of the 1st appellate Court. i The grounds as per petition of appeal are: 1. That the Honourable District Court having found that no evidence was lead to prove existence of matrimonial properties, erred in law and in fact to confirm division of the said properties which do not fall under matrimonial properties. 2. That, in this case where no evidence tendered to prove existence of matrimonial properties, the Honourable District Court erred in law and fact not to quash the decision and orders of the Primary Court, and order the Primary Court to take additional evidence to identify and approve existence and ownership of the said properties claimed to be matrimonial properties. 3. That the Honourable District Court erred in law and fact to hold to the effect that the Court has no duty to establish existence and ownership of matrimonial properties before distributing the same. Based on stated grounds above the appellant prayed the Court to allow the appeal and quash the decision of the District Court with costs. In the impugned decision of the District Court the order for division of matrimonial assets made by the trial primary Court was confirmed. The trial Court had awarded three (3) houses located at Ilazo, Kikuyu Nkuhungu and as well as a farm in Kiteto to be taken by the appellant, while ordered the house located at Kisasa to be taken by the respondent as well as domestic utensils. This decision of the trial Court was happily confirmed by the District 2 Court, which found prudence in the division as the appellant was required to provide maintenance for his issues, hence he was given three houses and the Kiteto farm, while house utensils were awarded to the respondent who is required to resides with the said issues. This Court ordered hearing of the appeal to proceed by way of written submission, after being so requested by the appellant's advocate without objection from the respondent's advocate. Both parties abided by the scheduling order made by the Court. Mr. George Vedasto of VVC & Company Advocate drew and filed the appellant's submission in support of the petition of appeal. He argued that the house at Kisasa which was awarded to the respondent was registered in the name of the son of the parties, one Abdul Haji. He added that neither of the parties has ever been registered as an occupier thereof. He also submitted that the trial Court found no evidence adduced to prove that ownership was transferred to the said son of the parties and argued that it was the duty of the parties to lodge evidence during trial. He argued that without such proof of ownership, the District Court ought to have refrained from confirming the division of that house and should have ordered the trial Court to take additional evidence. He cited the case of Nelson Machibya vs. Pando Lukomanya, PC Matrimonial Appeal No. 5 of 2018 where High Court at Mwanza (Hon. Siyani, J as he then was) held that where neither party to matrimonial proceedings produces evidence as to existence of a matrimonial asset, the Court should refrain from ordering division. 3 Ms. Neema Ahmed, learned advocate from Tanzania Women Lawyers Association (TAWLA) drew, gratis, the reply submission for the respondent. She argued that it is the respondent herein who listed the properties after the appellant had denied existence of any matrimonial properties apart from his salary slip. It was her further argument that the appellant did not object the existence of the listed properties during trial, hence the current appeal is an afterthought. She therefore submitted that the District Court was right to uphold the trial Courts decision, since there was no any evidence tendered to prove whatsoever allegations of ownership. In the rejoinder drawn and filed by Advocate Mariathereza Triphon Kamugisha of VK and Company Advocate, it was insisted that where neither of the parties to a matrimonial dispute produces evidence as to the existence of matrimonial assets, the trial Court should refrain from ordering division of the properties. She argued therefore that the District Court erred in law in confirming the division of properties without proof of their existence as matrimonial properties. As it can be gleaned from the submission above, all the three grounds of appeal filed in this Court boil down to the division of matrimonial properties. As such the issue for determination by this Court is whether the District Court properly dealt with the issue of division of matrimonial properties in its decision. 4 In deciding this appeal, the Court is alive to the fact that there is a concurrent finding of both the trial Court and the 1st appellate Court with regard to the matrimonial properties and how the same should be distributed. The position of the law is to the effect that the second appellate Court should not interfere with concurrent findings of facts by the two lower Courts except in rare occasions where it is shown that there has been a misapprehension of evidence or misdirection or non directions resulting in miscarriage of justice (see Mustafa Darajani V. Republic, Criminal Appeal 277 of 2008) [2011] TZCA 176 (27 June 2011) and Nchangwa Marwa Wambura Vs. Republic, Criminal Appeal 44 of 2017 [2019] TZCA 459 (11 December 2019), both available in www. Tanzlii. Org. The trial Court judgment shows that the respondent is the one who testified that the parties had jointly acquired many properties including four (4) houses which are registered in the names of their four issues. The first house on the list is the Kisasa house which is registered in the name of their son known as Abdul Haji. Even after noting so, the trial Court went ahead to order that this house be distributed to the respondent. I think this was wrong for the following obvious reasons; One, the owner of the registered land is the person for the time being in whose name that estate or interest is registered. This is according to interpretation of the word "owner" under section 2 of the Land Registration Act, [Cap 334 R.E 2019]. This means, the house at Kisasa area did not, in law, belong to the their of parties from the moment it was registered in the name of another owner even if the owner is their son or daughter. Section 33 of the said Act subordinates all other estates and interest in the registered 5 land to the ownership of the registered owner, except in case of fraud, with exclusion of the following pre-existing interests; (a) Any encumbrance registered or entered in the land register. (b) The interest of person in possession of the land whose interest is not registrable under the provisions of the Act. (c) Any right subsisting under any adverse possession or by reason of any law of prescription. (d) Any public rights of way; (e) Any charge on or over land created by the express provisions of any other law, without reference to registration under Act, to secure any unpaid rates or other moneys; (f) Any rights conferred on any person under the provisions of the Mining Act, the Petroleum Act, the Forest Act or the Water Resources Management Act (other than easements created or saved under the provision of the last-mentioned Act) and (g) Any security over crops registered under the provisions of the Chattels Transfer Act. Simply stated under the said provision of section 33, once a person is registered as the owner, nobody else can raise a claim over the estate so registered except if he pleads fraud or one of the seven exceptions listed above. In absence of such claims, the house in question is lawfully owned the registered by owner, who in this case, is Abdul Haji. Two, since the parties are at one that the house at Kisasa is registered in the name of their son Abdul Haji, and since Abdul Haji being the registered owner, has legitimate interest in the estate so registered in his name, it is 6 against the principles of natural justice for the Court to determine the fate of his ownership without affording him an opportunity to be heard. Being a son of the parties does not deprive the owner his right to be heard on the matter. This is trite law. Let it be said here that parents have an absolute right to give land and other properties to their children. This is always done in consideration of natural love and affection. Once that land is registered in the names of the intended child or children, parents no longer enjoy such a right to transfer the title in the land to other persons except, in case of under age children, the parents do so as guardians but for the interest of the children so registered as owner and not otherwise. For these reasons the trial Court erred to consider the houses as matrimonial properties and distribute the same way it did. According to the judgment of the trial Court, the respondent alleged that the appellant had changed the ownership of the houses in 2012 after a dispute arose between her and the appellant. The appellant opposed this allegation saying that neither of the parties had ever been registered as the owner of the house. While the first appellate Court found there was no evidence adduced in trial to prove ownership transferred to the child and despite admission by the respondent that the house in question was registered in the name of the child, one Abdul Haji, the Court found no need to require evidence to be adduced, but went ahead to distribute it to the respondent. This again was wrong. 7 After the appellant had petitioned for divorce and alleged that he had nothing as matrimonial property except salary slip, and when the respondent alleged the fact that there are many properties jointly acquired as matrimonial properties, the burden of proving existence of those properties shifted to the respondent. Section 110(1) of the Evidence Act, [Cap 6 R.E 2019] is clear on this position where it provides; "Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exists". As no whom the burden of proof lies, section 111 of the said Act provides; "The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side" It is on the strength of the above provisions of the law I am of a firm view, as held in Nelson Machibay Vs. Pando Lukomanya (supra) that where neither party to matrimonial proceedings produces evidence as to the existence of a matrimonial property, the trial Court should have refrained from ordering division of the properties in obscurity. There is a real danger of giving away a property belonging to a third party. Since there is a clear misapprehension of the law with regard to the division of assets, and in view of the fact that there are other assets such as the domestic appliances for which ownership by the parties as matrimonial properties have not been objected, I find it necessary for the trial Court to 8 take additional evidence, and re-distribute all other properties that will be confirmed to be matrimonial in light of the law. In the upshot, therefore the appeal is allowed. Save as herein above ordered, the decisions of both lower Courts with regard to distribution of matrimonial properties are accordingly quashed and set aside. No order as to costs. Dated at Dodoma this 3rd Day of December, 2021 ABDI S. KAGOMBA JUDGE 9