ibrahimu kitenge vs zainabu sinahela 2022 tzhclandd 163 24 march 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 218 OF 2021 (Appeal originated from the judgment and orders of the District Land and Housing Tribunal for Temeke in Application No. 239 of 2017). IBRAHIM KITENGE.................................................... APPELLANT VERSUS ZAINABU SI NAH E LA................................ RESPONDENT JUDGMENT Date of last order: 15/03/2022 Date ofjudgment: 24/03/2022 A. MSAFIRI, J The brief background of this appeal is that Zainabu Sinahela (who is now the respondent), filed an Application No. 239 of 2017 before the District Land and Housing Tribunal at Temeke. Claiming to be the ex-spouse of Ibrahim Kitenge (who is now the appellant), she stated that the respondent has transferred the ownership of their matrimonial property to one Dr. Emmanuel Joachim Temu (who was 2nd respondent during the trial at the Tribunal) which was jointly acquired, without her knowledge and consent. The property is situated at Yombo-Makangarawe, Temeke Municipality, Dar es Salaam (herein as suit property). She prayed before the trial Tribunal for the orders that the suit property be declared matrimonial property jointly acquired by the applicant and 1st respondent, the declaration that the transfer of ownership of the suit property to the 2nd respondent was null and void for lack of consent, and other relief^^^ i The trial Tribunal decided in favour of the applicant (now respondent). The appellant was aggrieved and instituted this appeal basing on the following six (6) grounds of appeal; 1. That, the learned trial Chairman erred in law and in fact when he held that the dispute land was purchasedjointly by the ex-spouses. 2. That the learned trial Chairman erred in law and in fact by holding that the respondent's consent was necessary to effect the transfer of the said land to Emmanuel Joachim Temu. 3. That the learned trial Chairperson erred in law and in fact when he held that the dispute land was sold to Dr. Emmanuel Joachim Temu. 4. That the learned trial Chairperson erred in law and in fact when he relied on the judgment of the District Court of Temeke which on the face of it appears to have been fraudulently obtained. 5. That the learned trial Chairman erred in law and in fact when he held that the respondent's consent was necessary although the marriage had already been dissolved according to the Islamic rites. 6. That the learned trial Chairperson erred in law and in fact when he determined the matter without making a visit to the locus in quo. The appeal was argued by way of written submissions. The appellant's submission was drawn and filed by himself and the respondent's submissions was drawn gratis by advocate Abias Richards from Women's Legal Aid Centre (WLAC) and filed by the respondent in person. I am grateful to both parties, I have considered the said submissions, and I will be referring back to the same while determining the appeal. 2 In determining the appeal, the major question before me is whether it is meritorious. Taking the trend of the submission by the appellant I will begin by determining the 1st ground that the trial Chairman erred when he held that the dispute land was purchased jointly by the ex-spouses and thus a matrimonial property. The appellant does not dispute that he was married to the respondent from 1988-2009. The appellant submitted that he bought the suit land alone in 1987 before he and the respondent celebrated their marriage in 1988. That he bought the suit land from one Mzee Mpendu at the consideration of Tshs. 30,000/-. He said that, on the other hand, the respondent claimed that they purchased the suit land from the son of Mzee Mpendu but the respondent's claim was not supported by any evidence. In her reply submission, the respondent opposed this ground of appeal and stated that she provided monetary contributions toward the acquisition of the suit land from one Mzee Mpendu. She said that the appellant is required to prove that the property was solely purchased by him without the respondent's contributions, and that he did not prove that. During the trial, the first issue for determination was whether the suit house was a matrimonial property. In her evidence at the trial, the respondent (then applicant), stated that the suit land was bought in 1990 from one Mzee Mpendu, and they constructed a house on the suit land, and it was acquired by both spouses. She did not produce any^Q 3 documentary evidence to prove that the suit property was bought in 1990 and there was no any other witness beside her to support that. The appellant, testifying as DW1 during the trial, he stated that he acquired the suit property in 1987, he built it in six months, so, it is his own property. He also did not produce any documentary evidence to prove his claims. In his decision, the trial Chairman found that the suit property is a matrimonial property. He also joined hands with the decision of Temeke District Court in Matrimonial Cause No. 38 of 2008 which also found that the suit property is a matrimonial property and hence it should be sold and proceeds divided equally between the ex-spouses. In my determination basing on the evidence on record, I find no reason to depart from the findings and the decision of the trial Tribunal that the suit property is a matrimonial property. This is for the reason that there was no dispute that the appellant and respondent were married in 1988. A copy of marriage certificate was admitted in Court as Exhibit Pl. What was in dispute was the time the suit property was bought. The appellant is stating that he bought the same alone in 1987 while the respondent is saying that they jointly bought the same in 1990. Both had no documents to prove their claims. Therefore, I had to rely on the provisions of Section 114 of the Marriage Act, Cap 29 R.E 2019 which gives power to Court to order division of matrimonial assets. Section 114 (3) provides that; "For the purposes of this section, references to assets acquired during the marriage include assets owned 4 before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts". (Emphasis added). Therefore, although the appellant is claiming that he bought the land in 1987 before he married the respondent in 1988,1 am of the view that, the house was built on that Plot/Land which the respondent must have contributed financially or by other supportive means. This contribution was towards the improvement of the suit land. So, it does not matter whether the appellant bought the plot before marrying the respondent. The Court of Appeal in the case of Gabriel Nimrod Kurwijila vs. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018, CAT at Tanga (unreported), was of the view that, the issue of extent of contribution made by each party does not necessarily mean monetary contribution. By this analysis, I find that the trial Chairman was right in his findings that the suit property was a matrimonial property. I therefore find the 1st ground devoid of merit and I dismiss it. The 2nd, 3rd and 5th grounds were argued jointly, and they refer to the issue of spouse consent in regard to the appellant's act of transferring the suit property to Dr. Emmanuel Joachim Temu who was the 2nd respondent during the trial. In this, the appellant submitted that he exchanged the plots with Dr. Emmanuel Joachim Temu whereby the appellant took a Plot at Chamazi and Dr. Temu took the suit Plot at Makangarawe. That, 5 the exchange was made after he had divorced the respondent by giving her three talaks so there was no need of spouse consent. He submitted further that, there was no sale of the Plots but an exchange. That, since there was no sale of the suit property but just an exchange, then the matrimonial interests in the suit were shifted to the Chamazi Plot. He submitted further that, after the divorce, the respondent was given her "Kithumuni" according to the Muslim laws, which amounts to 1 million shillings. That the issue of spouse consent is relevant when spouse are still under wedlock but not where there is a divorce. In her response, the respondent vehemently argued that spouse consent is mandatory where the property is owned by the husband or by the wife and it is a matrimonial home. She cited the provisions of Section 59 of the Law of Marriage Act and Section 161 (3) of the Land Act, Cap 113 R.E. 2019 in regard to the requirement of the spousal consent in alienation of a matrimonial property by way of sale or mortgage, lease or gift. On the issue of payment of "Kithumuni" according to Muslim law, the respondent denied to have been paid any money by the appellant after their divorce. She submitted further that, the appellant and the respondent were joint owners of the suit property and the dissolution of their marriage did not alienate the respondent's rights over the said property. 6 In determining this, first I will look at grounds No. 2 and 5 which raise the issue as to whether the consent of the respondent was necessary despite the fact that the marriage has already dissolved. I am of the view that this issue is in the affirmative. As I have agreed with the findings of the trial Tribunal that the suit property was matrimonial property, then the dissolution of marriage did not end that right of the respondent over the property. Much as I agree with the findings of the trial Chairman that there was no evidence to prove the claims of the appellant that he had paid the respondent the so called "Kithumuni", even if such payment was done, it does not relinquish the rights of the respondent on the matrimonial property. As long as the property was jointly acquired during the marriage, the respondent has a right over the same unless it is specifically proved that she consented to relinquish those rights. Therefore, I find grounds No. 2 and 5 to have no merit and I also dismiss them. On ground No. 3, the appellant states that the trial Chairman erred when he held that the suit land was sold to Joachim Temu, but the fact is that there was exchange of the properties. This ground need not take much of the Court's time. The property which the appellant's claims to have transferred to Joachim Temu was matrimonial property which the District Court of Temeke has already made decision that upon the dissolution of marriage, the same be sold and the proceeds distributed equally between the two ex-spouses. Hence, the appellant had no right to transfer the property without the knowledge or consent of his ex-spouse, the 7 respondent. I see no merit in this ground of appeal and I also dismiss it. On the 4th ground, the appellant states that, the trial Chairman erred when he relied on the judgment of the District Court of Temeke which on the face of it shows that the appellant was afforded no chance to be heard. I believe that this Court's hands are tied to deliberate on this ground of appeal. This is because the appellant had already appealed against the decision of the District Court of Temeke in Matrimonial Cause No. 38 of 2008. The appeal was before this Court (High Court Dar es Salaam, Registry, Civil Appeal No. Ill of 2009). The Court determined the appeal and dismissed it through a judgment delivered on 25/09/2014. The proper course for the appellant to take if he was dissatisfied with that decision was to appeal against it to the higher Court. There is no evidence that he did the same. In such circumstances, this Court is functus officio. The 4th ground is also dismissed. On the 6th ground, the appellant submitted that, the trial Chairman erred when he determined the matter without making a visit to the locus in quo. That the events that led to this controversy happened almost two decades back, and since then, there are changes on the place whereby in the place of a three roomed "banda", there now stands a six roomed modern house. That it was important for the trial Tribunal to make a visit to the locus in quo in order to come to a just decision. Af I I :. 8 It is the general principle that the visit of the locus in quo is not mandatory. This position has been stated in various cases both by this Court and the Court of Appeal, (see the case of Kimonidimitri Mantheakis vs. Ally Azim Dewji and 7 others, Civil Appeal No. 4 of 2018, CAT at Dar es Salaam (unreported), where it was observed that, the visit of the locus in quo is not mandatory, it is trite law that it is done only in exceptional circumstances as by doing so, a Court may unconsciously take a role of witness rather than adjudicator). In the case of Augustine Mathew Mbalamwezi vs. Mary Petro Mgoloka, Land Appeal No. 22 of 2020, High Court Sumbawanga (Unreported), the Court quoted the Court of Appeal's decision in the case of Avit Thadeus Massawe vs. Isdory Assenga, Civil Appeal No. 2017 (unreported), whereby circumstances justifying visits to locus in quo are listed. The circumstances are that; i. Where such a visit will clear doubts as to the accuracy of a piece of evidence when such evidence is in conflict with another evidence; ii. Where there is a conflict in survey plans and evidence of the parties as to the identity of the land in dispute, the only way to resolve the conflict is for the Court to visit the locus in quo. iii. To eliminate minor discrepancies as regard the physical condition of the Land in dispute. It is not meant to afford a party an opportunity to make a different case from the one he led in support of his claims.(emphasis mine). 9 Basing on the above principle, I am of the view that visiting of the locus in quo was unnecessary in the circumstances of this case. The major issue in this case was whether the land in dispute was a matrimonial property, obtained from the joint efforts of the ex­ spouses during their marriage. The issue was not the improvements done on the property over the years. The trial Tribunal's findings were that the property was a matrimonial property, which this Court has also confirmed. I find the 6th and last ground of appeal devoid of merit and I dismiss it. I hereby find this appeal to have no merit and therefore it is hereby dismissed in its entirety with costs. It is so ordered. Right of appeal explained. Dated at Dar es Salaam this 24th day of March, 2022. JUDGE io