CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 7655 OF 2024 (Arising from the Judgement of the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Matrimonial Cause No. 16 of 2020 dated 25th January 2024 (Hon. H.A. Shahidi, PRM) ____________________________ JASMIN BAHASHA SALUGOLE………………………………..APPELLANT VERSUS MICHAEL NDONGO NGUDUNGU………….……………….RESPONDENT JUDGEMENT Date of last order: 25th June 2024 Date of Judgement: 4th July 2024 MTEMBWA, J.: As discerned from the pleadings, it is not in dispute that parties herein, on an unknown date sometimes in 2015, contracted an Islamic marriage and was so registered by BAKWATA. It could appear, at first nothing was to worry. The unconditional love between the duos culminated in bringing into the world one lovely daughter by the name of Sultana Michael Ndongo. The facts reveal further that, during the existence of the marriage, by joint efforts parties acquired several 1 matrimonial properties. As the adage goes that there is an end to everything, parties in the end could not affectionate to each other. As a result, the Respondent herein filed a divorce Petition claiming for dissolution of the marriage, custody of the marriage issue and distribution of the matrimonial properties. Upon consent of both parties, the marriage was dissolved and the custody of the marriage issue was given to the Appellant but a right of visitation was granted to the Respondent. The trial Court had then to remain with only one issue for determination, that is, the division of the matrimonial properties. In the course of such noble task, a property described as Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam was not distributed to anyone owing to the reason that there was a pending case involving the said property. An order of sale of a Motor Vehicle registered as T 311 DKM make Ford Ranger was entered with a further order that the proceeds be divided to parties equally. A House at Tungutungu area was given to the Appellant while the rest of the properties were given to the Respondent. The Appellant was not amused at all. He has preferred this Appeal fronting the following grounds of appeal; 2 1. The Trial Court erred in fact and law by failure to enter Judgment in respect of Plot No. 202 Block B located at Mbweni Malindi Area, Kinondoni Municipality with CT No. 56297 thereby adjudicated its Judicial duty and Jurisdiction. 2. The trial Court erred in fact and law by failure to enter finding in favour of the Appellant in respect of Plot No. 202 Block B located at Mbweni Malindi Area, Kinondoni Municipality with CT No. 56297. 3. The trial Court erred in law by relying on the Exhibits which were not tendered as the basis of its decision. 4. That, trial Court erred in law and in fact by failure to properly evaluate and analyze evidence on records leading to abdiction of Judicial duty and Jurisdiction. When this matter came for orders before me on 23rd April 2024, the Appellant was represented by Ms. Gloria Ulomi, the learned counsel while the Respondent was symbolized by the presence of Mr. Boaz Moses. By consent, both counsels agreed to argue this Appeal by way of written submissions. Having gone through the records, I am satisfied that the parties adhered to the agreed schedule which I recommend. At this point, I am constrained to look into what the parties have argued for and against the Memorandum of Appeal. Taking the podium to argue in support of the first ground of appeal, Mr. Omary Msemo, argued that Plot No. 207 Block ‘B’ located at Mbweni Malindi within Kinondoni Municipality, Dar es Salaam was 3 one of the properties in contest. The question surrounding it was whether the same was one of the matrimonial properties jointly acquired by the parties. That during hearing, while the Respondent testified that it was one of them, the Appellant maintained that it was her private property acquired during the substance of the marriage. The learned counsel faulted the trial Court for failure to make factual findings on the contested issue based on the evidence available. He was not amused at all by such refusal owing to the reason that there was a pending suit in the High Court of Tanzania, Land Division at Dar es Salaam. Mr. Msemo continued to note that the fact that there was a pending case in the High Court, if any, could not have ousted its jurisdiction to decide on the matter before it. He argued further that, between the two cases, the matrimonial cause was filed earlier than the one in the High Court. As such, there was no legal justification for failure to tackle the issue before it. Stretching further, Mr. Msemo argued that there was no evidence and or materials establishing the presence of the said case at the High Court. On this, he was fortified by article 107A of the Constitution of the United Republic of Tanzania. 4 Mr. Msemo compressed the second and fourth grounds of appeal and argued them altogether. On this, he argued that the trial Magistrate erred by relying on the Bank Statement dated 3rd May 2017 which was not tendered in evidence and as such, he wrongly arrived at the conclusion that the motor vehicle that was solely owned by the Appellant be sold and the proceeds be divided to parties equally. That, there was no evidence that the sum of USD 46000 was withdrawn from the Company’s Bank Account. He cited the case of National Microfinance Bank PLC & Reliance Insurance Company (T) Limited Vs. Lello Laurent Sawe, Consolidated Civil Appeal Nos. 385 "A" & 339 of2021, Court of Appeal at Tabora. Arguing on the fourth ground of appeal, Mr. Msemo submitted that the trial court erred in law by failing to properly analyze and evaluate the evidence on records. He argued further that the Appellant managed to account substantively on how she acquired Plot No. 207 Block ‘B’ located at Mbweni Malindi within Kinondoni District. That, her testimony was supported by the evidence of DW2 and DW3 and thus the trial Court was duty-bound to analyze the evidence on records and come out with a conclusion. To cement this, he cited the 5 cases of Joseph F. Mbwiliza Vs. Kobwa Mohamed Lijeselo Msukuma and 2 Others, Civil Appeal No. 227 of 2019, Court of Appeal at Tabora and Yassini Salum Kagurukila Vs. the Republic, Criminal Appeal No. 106 of 2019 Court of Appeal at Tabora. Based on the foregoing, Mr. Msemo implored this Court to re- evaluate the entire evidence and come up with its own conclusion. He did not press for costs. In rebuttal, Mr. Moses was on duty. He compressed the first and fourth grounds of appeal and argued them altogether. He submitted that the trial Court was correct to refrain from entertaining and or ruling out on Plot No. 207 Block ‘B’, Mbweni Malindi, Kinondoni Dar es Salaam for the reason that there was a pending case at the High Court (Land Division) before Hon. R.M. Gwae, J. He referred this Court to page 4 of the Judgement of the trial Court where the Court took such a recourse. The learned counsel noted further that, the judicial system in Tanzania has four tiers, that is, the Court of Appeal of Tanzania, the High Court of the United Republic of Tanzania, the Subordinate Courts as well as the Primary Court. That, it is a salutary norm of the law 6 that the lower Court cannot entertain a dispute on the subject matter which is pending before the Higher Court. As such, the trial Court was correct and justified to refrain from giving a verdict as to the ownership of the disputed property. Further that, parties herein do not dispute as to the presence of Land Case No. 224 of 2022 which is pending. In his evaluation, the learned counsel observed that the Appellant’s counsel was supposed to take judicial notice as to the existence of such facts pursuant to sections 59 and 60 of the Evidence Act, Cap 6 R.E 2019. He submitted in addition that, the fact that Matrimonial Cause No. 16 of 2020 was filed before Land Case No. 224 of 2022 does not relinquish the supremacy of the High Court. As to whether the trial Court misapprehended the evidence of DW1, DW2 and DW3, Mr. Moses resisted the assertion and submitted further that the Court refrained from discussing the issue of ownership of the disputed land following the pendency of the case at the High Court. He distinguished the cited case of Joseph Mbwiliza Vs. Kobwa Mohamed Lyeselo Msukuma and 2 Others (supra). He pointed out that the evidence by the Appellant did not prove 7 anything in relation the disputed property. He cited Section 112 of the Evidence Act (supra). Arguing on the third ground of appeal, Mr. Moses denied the assertion by the Appellant that the trial Court erred in law by relying on the evidence not tendered during hearing. He added further that the Respondent managed to prove orally on how he acquired the said Motor Vehicle in dispute. That, the fact that the Motor Vehicle registration card is in the name of the Appellant does not give her exclusive ownership over it since the same was obtained during the subsistence of the marriage. The fact that the Respondent was the miner suggests that he was a breadwinner and major contributor to the matrimonial assets since the Appellant failed to prove that she used to be a businesswoman. To fortify his argument, the learned counsel referred this Court to the case of Hemed Said Vs. Mohamed Mbilu (1984) TLR 113 where it was observed that in measuring the weight of evidence in civil cases as the present one, it is not, however, the number of witnesses whom the party calls on his side that matter. It is a quality of the said evidence. Based on the above, Mr. Moses implored this Court to dismiss the Appeal. 8 In rejoinder, Mr. Mpwanga Bernard briefly submitted that the name “Salugulo” instead of “Salugole” appearing on the submissions is a mere slip of the pen that did not change the identity of the Appellant. He added further that the Respondent seems to have not been prejudiced and that is why he managed to file the reply submissions based on the proceedings on the trial Court. In the circumstances, Mr. Bernard beseeched this Court to apply the principle of overriding objective. He cited then case of Alliance Life Assurance Limited Vs. Elihuruma Ngowi, Civil Appeal No. 487 of 202, Court of Appeal. On the other hand, he implored this Court to adopt the submissions in chief. Having dispassionately considered the rival arguments by the parties, the question before me is whether the appeal is meritorious considering the evidence available on records. Indeed, being the first appellate Court, it has a duty to re-evaluate the evidence on records and put it under critical scrutiny and come out with its own conclusion. In the case of Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, the Court placed a special duty on the first appellate court as follows; The duty of the first appellate court is to subject the entire evidence on record to a fresh re-evaluation in order to arrive 9 at decision which may coincide with the trial court decision or maybe different altogether. While guided by the above principle, it is a trite law also that whoever alleges the existence of any fact bears the duty to prove the same. This principle is gathered from sections 110, 112 and 115 of the Evidence Act, Cap 6 RE 2019 and judicial precedents including the case of Manager NBC Tarime Vs. Enock M. Chacha [1993] TLR 228. Before I delve into the nitty gritty of this Appeal, I feel instructive to point out on the outset that, as it seems to me, the midpoint of contention rests on the distribution of a Motor Vehicle registered as T 311 DKM (Ford Ranger) and failure to make factual findings on Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam. However, I will re-evaluate the entire evidence to see if the impugned Judgement is within the dictate of the law and or justice. Briefly, according to the Petition, the Respondent borrowed the sum of Tanzanian Shillings 450,000,000/= to buy the matrimonial assets including the vehicles and the landed properties. On unknown dates, he solely bought Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam from Shafii Ally Shariff and paid the 10 sum of Tanzanian Shillings 20,000,000/= as an advance payment through the seller’s Bank account. That maliciously and without authority, while the Respondent was serving his jail term in prison, the Appellant transferred the said property to her name. The Petition discloses further that by joint efforts, the two acquired properties at Tungutungu and Kiharaka areas. It can also be descened from the Petition that the Respondent solely bought a Motor Vehicle make Toyota Prado registered as T 787 CLX. He withdrew the sum of USD 4600 and gave to the Appellant who bought a Motor Vehicle make Ford Ranger Pickup with registration No. T 311 DKM in her name. During hearing, the Respondent testified at page 12 of the typed script of the Proceedings that, during the subsistence of the marriage, the duos have matrimonial and personal properties. He mentioned the properties owned together to include; Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam, Houses at Tungutungu and Kiharaka area, Motor Vehicles make Ford Ranger Pickup and Toyota Prado respectively registered as T 311 DKM and T 787 CLX. The sale agreement for Mbweni Plot was tendered and admitted as Exhibit P1. 11 At page 15 of the typed script of the Proceeding, the Respondent proposed the distribution of the matrimonial properties as follows; that the House at Tungutungu be given to the Appellant; the Motor Vehicle make Ford Ranger be sold and the proceeds be divided equally, the landed properties at Mbweni and a House at Kiharaka be given to him (the Respondent). The division of the Motor Vehicle make Toyota land cruiser Prado was left to the trial Court. Cross-examined by Mr. Omary at page 18 of the typed proceedings the Respondent had this to say; We got properties as I said, house at Mbweni, house at Tungu Tungu and cars. The House at Mbweni I constructed it after purchasing it. I had no one to ask about the development. I didn’t bother to ask who did the finishing of the house I bought the plot from my pocket but since I was married it is a matrimonial property. On her part, the Appellant testified that during ten years of the existence of the marriage, the two managed to have the following properties; a house at Mbweni, four houses apartment at Tungutungu, one vehicle make Toyota Prado, a Hostel at Mwanza with 100 rooms, two houses at Osterbay. She testified further that during the subsistence of the marriage, she had personal properties 12 including Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam and a Motor Vehicle registered as T 311 DKM (Ford Ranger). She added further that, the said Plot was initially bought by his uncles, Shafii Ally Sharif (DW3) and Swabir Ally Sharif (DW2). In consideration of natural love and affection, the uncles gifted the said Plot to her. The document showing that it was initially bought by the uncles and the Deed of Gift were admitted as Exhibit D1 collectively. The Appellant further testified that the uncles bought the said land from Kaganda Mwijage and Johari Mwijage. After the execution of the Deed of Gift, she sold the said land to Abdallah Ramadhani Mrinji and then left the Country. The sale Agreement was admitted as Exhibit D2. The Appellant added that before the property could be transferred to her, she conducted a search and discovered that the said property was genuine in the ownership of DW2 and DW3. She refuted the assertion that the said property was bought jointly with the Respondent and disowned the signature on Exhibit P1. The Appellant confirmed the Respondent’s story that a Motor Vehicle registered as T 311 DKM (Ford Ranger) was sold by her as her asset having bought the same with her monies from her pocket. She 13 added further that the said vehicle was bought by her from her personal funds assisted by her family. She argued further that the Toyota Prado vehicle is under the possession of the Respondent. She refused to have sold the House at Kiharaka and Tungutungu. Testifying further on the Mbweni Plot, the Appellant averred that she sold the bare Plot and not a home (House) as alleged. That, it was the buyer (Abdallah Ramadhani Mrinji) who developed the said Plot by building two Houses on it. She also resisted the Respondent’s assertation that she stole the money by ATM Card from his Bank Account. She considered the allegation to be nothing but defamation and that there was no evidence to that effect. Lastly, she implored the trial Court to find out that the Plot at Mbweni and the vehicle make Ford Ranger be considered as properties acquired by her solely. Cross-examined by Mr. Boaz, the Appellant testified that the vehicle make Ford Ranger was bought by her at the sum of USD 6500 but it was during the existence of the marriage. She added further that the Mbweni Plot was gifted to her by her uncles. Cross-examined further she confirmed that there was a pending case between herself, the Respondent and Abdallah Ramadhani Mrinji. That, she left the country due to the threats posed to her by the Respondent. She 14 insisted that the signature on Exhibit P1 was forged. That, after she sold the Mbweni Plot, the Respondent divorced her. DW2 one Swabir Ally Shariff and DW3 one Shafiii Ally Shariff corroborated what was testified by the Appellant with regard to Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam. They testified on how they gifted the said Plot to the Appellant and denied having sold the same to the Respondent. They all disowned the signatures on Exhibit P1. As said before, Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam was not distributed to anyone nor did the trial Court make findings on whether it was a matrimonial property or solely owned by the Appellant owing to the reason that there was a pending case involving it at the High Court. The trial Court also ordered the sale of the Motor Vehicle registered as T 311 DKM (Ford Ranger) and the proceeds be divided among parties equally. The Appellant also was given the landed property at Tungutungu area leaving the rest of the properties to the Respondent. Before I proceed, I would first identify, as per the records, the properties involved in this matter whether matrimonial or solely owned by any of the parties. The Respondent listed the following 15 properties; Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam, Houses at Tungutungu and Kiharaka, two Motor Vehicles make Ford Ranger Pickup registered as T 311 DKM and Toyota Land Cruiser Prado registered as T 787 CLX. On the other hand, the Appellant mentioned the following properties; Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam, four houses apartment at Tungutungu, one vehicle make Toyota Prado, a Hostel at Mwanza with 100 rooms, two houses at Osterbay and a Motor Vehicle registered as T 311 DKM make Ford Ranger. Although the Appellant mentioned two other landed properties, the trial Court did not come up with any factual finding. These properties included, a Hostel at Mwanza with 100 rooms and two houses at Osterbay. However, as per the records, the Appellant did not describe the said landed properties and how she contributed to the attainment of the same. In addition, the records are silent on the existence of the said properties. The Appellant testified to have not seen the two houses located at Osterbay nor did she describe the location of a Hostel with 100 rooms located in Mwanza. 16 In such circumstances, I cannot venture into the unknown by speculating the existence or nonexistence of the said properties. In fine, I will not consider them as part of the matrimonial properties as of now. By the way, the law sets no limitation for a party to the matrimonial cause to claim what she or he considers to be a matrimonial property not considered previously in the matrimonial cause. If all facts are gathered into the Appellant’s hands with respect to the said two properties, the Appellant may claim them in a fresh Application. From what I have gathered, there is no dispute that, a House at Tungutungu and Kiharaka areas and a Motor Vehicle make Toyota Land Cruiser Prado registered as T 787 CLX are matrimonial properties. It seems, as per the evidence, they were obtained by joint efforts of the parties depending on the extent of contribution of each party to the attainment of the same. It seems the parties are not in agreement with regard to Plot No. 207 located at Mbweni Malindi in Kinondoni District, Dar es Salaam and a Motor Vehicle registered as T 311 DKM make Ford Ranger. Having so observed, I will now look into the grounds of appeal. 17 Mr. Omary Msemo complained that the trial Magistrate was unjustifiably wrong not to resolve on the issue placed before him concerning Plot No. 207 Block ‘B’ located at Mbweni Malindi within Kinondoni Municipality, Dar es Salaam on the pretex that there is a pending case in which the said property is involved. On his part, Mr. Moses did not find the argument worth purchase. He insisted that the trial Magistrate was correct as there was a pending matter in the High Court where the same property is involved registered as Land Case No. 224 of 2022 before Hon. Gwae, J. Indeed, section 76 of the Law of Marriage Act, Cap 29 R.E 2019 (herein the LMA) provides that, the original jurisdiction in matrimonial proceedings shall be vested concurrently in the High Court, a Court of a Resident Magistrate, a District Court and a Primary Court. Section 77 of the Act provides for the powers of the Court to hear a Petition for divorce. In particular, section 99 of the Act provides further that, any married person may petition the Court for a decree of separation or divorce on the ground that his or her marriage has broken down but no decree of divorce shall be granted unless the Court is satisfied that the breakdown is irreparable. According to section 108 (b) thereof, the Court seating to determine a Petition is 18 entrusted with a duty to inquire into the arrangements made or proposed as regards maintenance and the division of any matrimonial property and to satisfy itself that such arrangements are reasonable. Thus, the Court entrusted with a duty to determine a petition of divorce is mandate to determine whether the marriage between the parties is irreparably broken down beyond repair. Having satisfied that the same has been irreparably broken down, the Court then is obliged to dissolve the marriage and discharge the parties from the obligations imposed to them by the marriage. Having done that, the Court is dutifully required to order the division of the matrimonial properties, if so requested, in view of sections 144 to 124 of the Act and proceed to determine the custody and maintenance of the marriage issues under the provisions of sections 125 to 137 of the Act. From the above, it is not in dispute that the Court seating to determine the Petition of Divorce is also mandated to order division of matrimonial properties if so requested. In the exercise of such noble task the Court should conclusively make factual findings on each and every issue posed to it in respect to the particular property forming part of the claim. It has powers also to determine or inquire as to 19 whether the particular asset is a matrimonial property or is owned privately by the party. Powers also to determine all objections raised in the course of discharging such duty, to mention but few. From what I have tried to endeavor herein above, I agree with the Appellant’s counsel that the learned trial Magistrate erred in law for failure to discharge his duty by determining whether Plot No. 207 Block ‘B’ located at Mbweni Malindi within Kinondoni Municipality, Dar es Salaam was acquired by joint efforts of the parties. He refrained to discharge a duty lawfully and dutifully imposed to him by law. The fact that there was another pending case in another Court of law did not oust his powers to determine the Petition of divorce including the determination of whether the said property formed part of the matrimonial assets. The learned trial Magistrate ventured into unknown by believing that there was another dispute of which the said property was involved. I went through the records of the trial Court and noted that there was no materials to rely on with regard to registration number, Court registry, stage of the case, to mention by few. The fact that it is registered as Land Case No. 224 of 2022 before Hon. Gwae, J was 20 brought into records through the Respondent’s written submissions. To that end, the first ground of appeal is allowed. Having so resolved, the next question would be whether, considering the evidence available, Plot No. 207 Block ‘B’ Located at Mbweni Malindi within Kinondoni Municipality, Dar es Salaam was acquired by joint efforts of the parties thus part of the matrimonial properties. Before I delve into answering this question I am constrained first to look into what “matrimonial assets” or “family assets” entails. In our jurisdiction, issues of matrimonial properties are governed by the Law of Marriage Act. However, the said law has not specifically defined the term matrimonial property or assets. Unlike in other jurisdictions, like India, the term 'matrimonial assets' is defined under section 4 (1) (a) of the Matrimonial Property Act, Chapter 275 Revised Statutes, 1989 as hereunder: - In this Act, ‘matrimonial assets' means the matrimonial home or homes and ail other real and personal property acquired by either or both spouses before or during their marriage... Under paragraph 1064 of Lord Hailsham’s Halsbury’s Laws of England “family assets” is defined as follows; 21 The phrase “family assets” has been described as convenient way of expressing an important concept; it refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. The family assets can be divided into two parts (1) those which are of a capital nature, such as matrimonial home and the furniture in it and (2) those which are of a revenue producing nature such as earning power of husband and wife. In Tanzania, we subscribe to the Indian position. In the case of Habiba Ahmadi Nangulukuta & Others vs Hassani Ausi Mchopa & Another (Civil Appeal No. 10 of 2022) [2022] TZCA 156 (29 March 2022), the Court said; The position in India, which we take inspiration from, is quite similar to that in our jurisdiction when it comes to the interpretation of the phrase "matrimonial assets” which in our view is similar to the phrase 'family assets’ used in the Indian Act. They refer to those properties acquired by one or other spouse before or during their marriage, with the intention that there should be continuing provisions for them and their children during their joint lives. According to section 56 of LMA, a married woman has the same right as a man to acquire, hold and dispose of property, whether movable or immovable, and the same right to contract, the same right to sue and the same liability to be sued in contract or in 22 tort or otherwise. Section 58 recognizes separate ownership of the property between married couples. It provides; Subject to the provisions of section 59 and to any agreement to the contrary that the parties may make, a marriage shall not operate to change the ownership of any property to which either the husband or the wife may be entitled or to prevent either the husband or the wife from acquiring, holding and disposing of any property. Section 60 of LMA provides for presumption as to property acquired during the substance of the marriage. It states; Where during the subsistence of a marriage, any property is acquired– (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse; (b) in the names of the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal. From the above, a property acquired in the name of one spouse is presumed to belong to that spouse unless the presumption is rebutted. However, a property acquired during marriage by joint effort is a matrimonial asset that belongs to both spouses and is liable to be distributed to both spouses upon divorce. Matrimonial property comprises all property acquired by either spouse, or both of them, 23 between the date of marriage and the date of separation. An exception to this is a property purchased prior to marriage. Additionally, furnishings for a private property acquired before marriage, also form part of the matrimonial property. The Appellant testified that during the subsistence of the marriage had personal properties including Plot No. 207 Block ‘B’ located at Mbweni Malindi in Kinondoni District, Dar es Salaam which was gifted to her by uncles, Shafii Ally Sharif (DW3) and Swabir Ally Sharif (DW2). She tendered Exhibit D1 collectively. Her evidence was nearly collaborated by the evidence of DW2 and DW3 who denied to have sold the said Plot to the Respondent. Both, the Appellant, DW2 and DW3 disowned the signature on Exhibit P1. In my considered opinion, on the balance of inconvenience, the Appellant managed to prove that the said property was solely owned by her. With such observation, I am satisfied that the property was not a matrimonial asset. The Respondent’s allegations that he bought the Plot from DW2 and DW3 was manifestly disapproved by the Appellant’s evidence on records thereby dismantling his evidence. Having seen that DW2 and DW3 testified against him, he was duty bound to call for other 24 evidences to justfy his assertation that he bought the said land from them. He failed even to call an advocate who said to have witnessed the said sale (Exhibit P1). In the case of the DPP v. Shida Manyama @ Selemani Mabuba, Criminal Appeal No. 285 of 2002 (unreported) the Court stated as follows; Generally handwriting or signature may be proved on admission by the writer or by the evidence of a witness., or witnesses in whose presence the document was written or signed. This is what can be conveniently called direct evidence which offers the best means of proof.... (Emphasis supplied) The Respondent testified that, having bought the said Plot, he developed it. When cross examined, he testified that having been released from the prison he found some developments on the said land and he did not bother to ask as to who made the finishing. On her part, the Appellant testified that when the said land was sold by her to Abdallah Ramadhani Mrinji was a bare land with no developments on it. That it was the buyer who constructed two houses on it. With respect I have failed to agree with the Respondent because he did not say what and how he constructed on the said Plot. He did not justify by evidence that he developed the said Plot before 25 going to jail. In the premises, I am satisfied that it was a bare land when it was sold to the said Abdallah Ramadhani Mrinji by the Appellant. As said before, the Appellant (DW1), DW2 and DW3 denied to have signed Exhibit P1 and promised to take legal steps against the author. In fact, they alleged that the signatures alleged to have been signed by them on Exhibit P1 were forged. It is a trite law that the allegations of criminal nature when raised in a civil case must be proved strictly and the standard of proof is not beyond reasonable doubt but higher than the balance of probability. This duty was not effectively discharged by DW1, DW2 and DW3. The records of the trial Court reveal that Exhibit P1 contains the disputed signature of the Respondent (DW1), DW2 and DW3. Similarly, on the other hand, Exhibit D1 collectively contains undisputed signatures of the same witnesses. The question would be whether under section 75 of the Evidence Act this Court can examine the two documents and come up with its own conclusion on whether the signatures on both documents are similar or dissimilar. In the case of the DPP v. Shida Manyama @ Selemani Mabuba (supra) the Court noted; 26 the evidence Act provides three additional types of evidence or modes of proof. These are opinions of handwriting experts (S. 47) and evidence of persons who are familiar with the writing of a person who is said to have written a particular writing (S. 49), The third mode of proof under S. 75 which, unfortunately, is rarely used these days, is comparison by the court with a writing made in the presence of the court or admitted or proved to be the writing or signature of the person. (Emphasis mine) Before arriving at such conclusion, the Court cited an Indian case of State of Gujarat Vs. Vinaya Chandra Chhotalal Pathi, AIR 1967 SC 778 in which it was held that: a Court is competent to compare disputed writings of a person with others which are admitted or proved to be his writing ...in order to appreciate the other evidence produced before it in that regard. In the case of Thabiitha Muhondwa Vs. Mwango Ramadhani Maindo & Another, Civil Appeal No. 28 of 2012, the Court of Appeal cited with approval the indian case of Bisseswar Poddar Vs. Nabadwip Chandra Poddar & Anr., AIR 1961 Cal. 300, 64 CWN 106 where the High Court of India interpreted section 73 of the India Evidence Act which is similar to section 75 of our Evidence Act and stated as follows;- 27 On the interpretation of the relevant section of the Evidence Act and on a review and examination of the case law on the subject, l am satisfied that there is no legal bar to the Judge using his own eyes to compare disputed signature with admitted signatures even without the aid of any evidence of any handwriting expert. There are also other reasons to support this conclusion. What happens in those cases of disputed signatures where neither party calls any handwriting expert or where no handwriting expert may be available in some of the courts in the district?. Is the Judge bound to call a hand writing expert as a court witness?. He can do so if he wants to. But I do not think he can be forced to do so or that he is obliged to do so, if he feels that he can rely on the evidence of other witnesses on the point and by comparison of signatures come to his own conclusion on the point, so long as the court bears in mind the caution that such comparison is almost always by its nature inconclusive and hazardous.... (Emphasis supplied) Guided by the above authorities, I am of the considered opinion that this Court has mandate to compare the signatures on Exhibit P1 and Exhibit D1 collectively to see if they are similar. I compared the disputed signatures on Exhibit P1 and undisputed signatures on Exhibit D1 collectively and noted that the two sets of signatures are not similar. In such circumstances I am constrained to agree with the Appellant (DW1), DW2 and DW3 that they did not sign Exhibit P1. Equally, I agree with DW2 and DW3 that they never sold land to the 28 Respondent. To that end, the second and fourth grounds of appeal are allowed. Arguing in support of third ground of appeal, Mr. Msemo complained that the trial Magistrate erred by relying on the Bank Statement which was not tendered in evidence to arrive at the conclusion that the sum of USD 46000 was withdrawn from the Company’s Bank Account to buy a Motor Vehicle registered as T 311 DKM make Ford Ranger. During hearing, the Appellant testified that a Motor Vehicle registered as T 311 DKM make Ford Ranger was sold by her as her personal asset having bought the same with her funds assisted by her family. I passed through the evidence and I could not see anything substantial evidencing that the said motor vehicle was her personal property. The fact that it was registered in her name does not mean that it was her personal assets. Since there is no objection that it was bought during the subsistence of the marriage, I see no reason to hold otherwise. It is therefore an asset forming part of the matrimonial properties. There are allegations that the said Motor Vehicle was sold by the Appellant. I passed through the entire evidence and I could not 29 see anything evidencing that the same was disposed of by sale. There is no evidence as to when and to whom it was sold. Equally, there is no evidence as to how much it was sold. In the circumstances, I see no reason to speculate and fall into the same footing that the same was sold before the divorce. In the final result, the third ground of appeal is devoid of merit and I proceed to dismiss it. Having scanned the entire evidence, I am of the considered opinion that a House at Tungutungu and Kiharaka, a Motor Vehicle make Toyota Prado registered as T 787 CLX and a Motor Vehicle make Ford Ranger Pickup with registration No. T 311 DKM are both matrimonial properties. As aforesaid, Plot No. 207 Block “B” located at Mbweni Malindi within Kinondoni Municipality, Dar es Salaam is not a matrimonial property. That said, I will not fault the distribution of the matrimonial properties by the trial Court concerning a House at Tungutungu which was given to the Appellant; a House at Kiharaka and a motor Vehicle make Toyota Land Cruiser Prado registered as T 787 CLX which were given to the Respondent. A Motor Vehicle make Ford Ranger Pickup with registration No. T 311 DKM is hereby given to the Appellant. As said before, there is no evidence on the existence of a Hostel at 30 Mwanza with 100 rooms and two houses at Osterbay. As of now, they are not part of the matrimonial properties. Considering the circumstances, I make no order as to costs. It is so ordered. Right of appeal explained. DATED at DAR ES SALAAM this 4th July 2024. H.S. MTEMBWA JUDGE 31