halima ngole vs jimson mlowe admininstrator of the estate of aloyce mbuzu 2020 tzhc 1928 29 july 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA MATRIMONIAL APPEAL NO. 09 OF 2018 (Arising from the decision o f the District Court o f Mbaraii at Rujewa in Matrimonial Appeal No. 01 of 2017 and Original Matrimonial Cause No. 04 o f 2017, Madibira Primary Court at Mbaraii) HALIMA NGOLE........................................................APPELLANT VERSUS JIMSON MLOWE (Administrator of the estate of the Aloyce Mbunzu)...........................................RESPONDENT EX-PARTE JUDGMENT Date of last order: 24/06/2020 Date of Ex-Parte Judgment: 29/07/2020 NDUNGURU, J. This is a second appeal, the appellant, one Halima Ngole, appeared before the Madibira Primary Court at Mbaraii (herein to be referred to as trial Court) in Matrimonial Cause No. 04 of 2017, she petition for decree of divorce and division of the matrimonial properties. In its decision, the trial Court granted the decree of divorce and divide all matrimonial properties equally in 50% except for one house where Page 1 of 11 the trial Court found that the house was not among of the matrimonial property. Being aggrieved with the decision of the trial Court, the appellant preferred an appeal to the District Court of Mbarali vide Matrimonial Appeal No. 01 of 2017 but she lost again. Still the appellant dissatisfied with the decision of the District Court of Mbarali hence lodged the present appeal before this Court challenging the judgment and decree of the first appellate Court. The appellant has lodged five grounds of appeal as herein under: 1. That, the appellate trial Magistrate erred in law and facts when upheld the decision and advice of the trial Court that the matter ought to be filed before land tribunals leaving out that the dispute is no the division of the matrimonial property and not the ownership of the disputed property hence reached to the wrong decision it was wrongly decided by the Madibira Primary Court. 2. That, the appellate trial Magistrate erred both in point of law and facts when delivered judgment that based on the evidence adduced by WEO of Mkunywa Ward while the later acted utra-vires and the same was bias as in the dispute resolution the appellant was not summoned so as to defend the allegation adduced by the respondent Page 2 of 11 therefore the evidence adduced had no effect that resulted to the wrong decision. 3. That, the appellate trial Magistrate misdirected herself when upheld the decision of the Madibira Primary Court that is only house that was the matrimonial one leaving the other property with that the appellant undisturbed whereas the decision of the Madibira Primary Court contradict with that of appellate and yet the appellate Magistrate upheld it with its contradictions. 4. District Court when disregarded the facts adduced by the appellant that she has rented one hector at the Madibira project of which plainly meant she solely own even the produce therein. 5. That, the appellate trial Magistrate erred both in point of law and facts when disregard the crucial functions of the reconciliation board that issued consent judgment as stipulated herein the law of marriage hence reached to the wrong division that favoured the respondent. The briefly facts give the rise of this appeal is that; the appellant, one Halima Ngole filed a petition for divorce against the respondent, one Aloyce Mbunzu (who now is deceased person). Also, in the said petition, the appellant sought the distribution of the matrimonial assets which Page 3 of 11 were acquired during the subsistence of the marriage including two residential houses, one at Madibira area and other one at Mkunywa area within Mbeya Region. At the trial, the respondent contested that one house belonged to his senior wife one, Laines Kitasile. The trial Court found that the said house is not matrimonial property hence it excluded in the distribution of the matrimonial properties. Also, the trial Court dissolved the marriage with an order that the matrimonial assets be distributed among the parties equally in 50% save for the said one house. Thereafter, the appellant appealed to the District Court of Mbarali against the decision of the trial Court where her appeal was dismissed and the decision of the trial Court was confirmed on the ground that the appeal had no merits. Still the appellant aggrieved with the decision of the first appellate Court hence present the appeal. When the appellant filed present appeal before this Court the respondent, one Aloyce Mbunzu passed away hence he was represented by Jimson Mlowe as administrator of the estate. During the hearing of the appeal, Ms. Ezekiel Mahenge, learned advocate whereas the respondent did not appeared before the Court despite of the several efforts of the Court to summon him. Following the Page 4 of 11 non-appearance of the respondent, the Court proceeded to entertain this appeal ex-parte by way of written submission, where the counsel for the appellant complied with scheduling order. Submitting on the first ground of appeal, Ms. Mahenge argued that the issue of divorce and division of the matrimonial properties were the main complain of the appellant at the trial Court and not the issue of ownership of house. She added that both lower Courts misdirected by involving the issue of Laines Kitasile who claimed the ownership of the said house as the wife of the respondent. She continued to submit that, the evidence clearly shows that they have two house and saying that one house is disputed is a miracle, she cited the case of Godlove Hotlis vs. Anna Charles, Matrimonial Appeal No. 4 of 2016, High Court (unreported) to the effect that assets acquired during the marriage includes assets owned before the marriage by the one party which have been substantial improved during the marriage by other party or by their joint effort form part of the matrimonial assets. She added that it is undisputed that the two house were matrimonial house. As to the second ground of appeal, Ms. Mahenge submitted that the appellate trial magistrate erred both in point of law and facts when Page 5 of 11 delivered judgment that based on the evidence adduced by WEO of Mkunywa Ward while the later acted ultra-vires and the same he was bias. She added that the appellant was not summoned to defend the allegation adduced by the respondent. She also cited the case of National Housing Corporation Versus Tanzania Shoes and others (1995) TLR 251 to the effect that the right to be heard before adverse action or decision is taken against such a party. Regarding to the third ground of appeal, Ms. Mahenge contended that the first appellate Court misdirected itself as there was documentary evidence in the proceedings of the trial Court concerning the two house owned by the appellant and respondent. She added that the said house which was not considered as matrimonial property is the house which they used to live during their subsistence of marriage and they built the same since 2003 to 2017. She went on to submit that they lived therefore for fourteen years and in all years no any allegation was made by Laines Kitasile to claim the same. Explaining the fourth ground of appeal, Ms. Mahenge argued that the said hector at Madibira belonged to the appellant as per the Page 6 of 11 evidence adduced by the appellant before the trial Court. She added that the appellant rented the said hector using her own money hence the said hector was not a matrimonial property. Coming to the fifth ground of appeal, Ms. Mahenge contended that the marriage conciliation board seat on 01st day of January 2017 and reconciling the parties by preparing the minute. She added that the said minute for reconciliation was tendered by the appellant and received by the trial Court without any objection from the respondent; one Aloyce Mbunzu (now is deceased person). She further contended that the parties during the said meeting agreed to divorce and divide properties which they acquired together during their marriage. She cited the Section 114 (1) and (2) (b) of the Law of Marriage Act (Cap 29 R.E. 2019) to support her contention. Again she cited the case of Bi Hawa Mohamed vs. Ally Seif (1983) T.L.R 32 to cement her position on the issue of domestic activities of the wife. In conclusion, she prayed for the Court this appeal be allowed with costs, the decision of the both lower Courts be quashed and the appellant to be declared having rights to the said house. After carefully reviewing the record of the both lower Courts and considering the submissions made by the counsel for the appellant Page 7 of 11 together with the petition of appeal filed before the Court. The issue calling for the determination is whether this appeal has merits or not. In the first place I wish to states out that the main complains of the appellant centred into the two issue namely; firstly is whether the disputed house form part of the matrimonial property or not and secondly whether the said one hector was included as the matrimonial property. Starting with the issue of the house, it is on the record that the disputed house was built by the respondent in order to be the property of the senior wife who release the piece of the land to the respondent together with the appellant That facts confirmed by the evidence adduced by SU 1, SU 2, SU3 and SU4. Therefore, the appellant and the respondent used the disputed house for temporary. Also, the appellant did not shows how she participated in the building of the said house. Also, the record shows that, the WEO of Mkunywa received the complaint from the one Laines Kitasile against the respondent hence it is not possible for the WEO to summon the appellant to defend the said allegation while the appellant was not the parties of the dispute. Therefore, it is not true that the WEO of Mkunywa was denied the right of the appellant of to be heard. Page 8 of 11 In my considered view the respondent's evidence was heaver than that of the appellant therefore ought to have won the case aswhat have elaborated clear in the case of Hemedi Said vs. Mohamed Mbilu (1984) T.L.R 113 where the Court held that: "'According to iaw both parties to a suit cannot tie, but the person whose evidence is heavy than that o f the other is the one who must win." Regarding an agreement entered by the parties on the division of the matrimonial properties before the marriage conciliation board, my determination is that, the said documentary evidence which was tendered and received before the trial Court cannot be the basis in the division of the matrimonial properties by the Court. I hold so because the function of the said board is only to harmonize the parties and once the parties fail to reconcile it required to refer the parties to the Court of law. Thereafter the either party can petition for divorce and for the division of the matrimonial properties. Therefore I disagree with the submission advanced by the counsel for the appellant. Turning to the second issue, my determination is that, fact that there is ample evidence that the claimed hector of shamba was rented to the spouse it is not and cannot be part of matrimonial assets and thus Page 9 of 11 not subject to division. In that regard the argument advanced by the counsel for the appellant that the trial Court did include the said one hector as the matrimonial property has baseless. In the event, I do not see any reasons to interfere the decisions of the both lower Courts, therefore I uphold the decisions and orders given by the both lower Courts. Further, I hereby dismissed this appeal for lack of merits. No order as to costs. It is so ordered. Page 10 of 11 Date: 29/07/2020 Coram: D. B. Ndunguru, J Appellant: Present For the Appellant: Ms. Ezelina Mahenge - Advocate Respondent: Mr. Owegi - Advocate B/C: M. Mihayo Ms. Ezelina Mahenge - Advocate: The matter is for judgment, we are ready. Mr. Owegi - Advocate: We are ready. Court: Ex-parte Judgment delivered in the presence of Ms. Ezelina Mahenge advocate for appellant and Mr. John Owegi for the respondent. Page 11 of 11