20181025 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES·SALAAM PC CIVIL APPEAL NO.@109 OF 2017 (Arising from the decision of the Kibaha District Court in Matrimonial Civil Appeal No. 5 of 2017. Originating from the decision of Mkuza Primary Court in Matrimonial Cause No. 16 of 2016) JENI SAIMONI NINDI. ..... .................................... .. APPELLANT VERSUS FRANCIS JACOBO MALALAMKIZA ..................... RESPONDENT JUDGMENT B.R. MUTUNGI, J: This is the second appeal. Originally in the Primary Court of Mkuza_ the appellant successfully petitioned for divorce against the respondent. The respondent was ordered to pay her Tshs. sod,000/= and the kitchen utet~sils be divided 1 equally between the parties. Meanwhile the ·house to remain with the respondent. The appellant was aggrieved, hence appealed in the District Court challenging the awarded Tshs. 500,000/= as part of her share in the matrimonial house. The appeal was dismissed, hence the appellant has preferred to come herein on a second bite. The appellant has raised two grounds of appeal against the decision of the District Court, these are; 1. That the District Court erred in law and in facts by upholding the decision of the Primary Court which ordered the Appellant to get Tshs. 500,000/= as her share in the matrimonial house situated at Bambo area, Kibaha District, Pwani Region. 2. That, the District Court erred both in law and in facts by its failure to consider that the Primary Court did not record, analyze and consider the evidence adduced by the Appellant as a result 2 reached into unjust decision in favour of the Respondent. The facts leading to the appeal are as follows; the appellant alleged that, in 2006 they cerebrated a Christian marriage. The problems started in 2008 when her husband (the respondent) wanted to sodomize the appellant. The appellant went further by alleging the respondent did chase her from the matrimonial home. The appellant alleged further she had contributed to the construction of the said house, from a loan which she had secured. In response, the respondent did concede to have married the appellant. He further conceded during the subsistence of the marriage, they managed to build one house in which they were living therein. The respondent alleged the problem started when the appellant started going to the witch doctor, and was not happy with the appellant's behavior of bringing home the said witch 3 doctor. The respondent was of the view his wife had a relationship with the said witch doctor._ The primary court in the end did dissolve the marriage as already stated. When this appeal was called for hearing, both parties appeared in person and were unrepresented. The appellant in her submission in support of the appeal argued that, during the subsistence of marriage, they managed to acquire one house through joint efforts. In response to the above, the respondent supported the decisions of the two lower courts. The respondent went further by submitting the appellant is the one who went away from the house. The respondent opposed the version that, the appellant did contribute to the construction of the said house. The boiling point here is whether the appeal has merits or otherwise.In determining the appeal, the two grounds of 4 appeal will be considered generally in the course of writing this judgment. As I have pointed out earlier, this is the second appeal.· In · view therein, this court (being the second appellate court) can only interfere with the concurrent findings reached by the lower tribunals only if there has been a misapprehension of the evidence, miscarriage of justice or a violation of some principle of law or practice. This position was cemented in the case of Amratlal D.M t/a Zanzibar Silk Stores Versus A.H Jariwale t/a Zanzibar Hotel [1980] T.L.R 31 In line with the above legal position and upon going through the court record as well as the submissions from both parties, I find the appeal has merits. The evidence so adduced in the trial court support that, the said house situate at Bamba, Kibaha District is a matrimonial property acquired by the joint efforts. Further, the evidence is very 5 ,. clear that, the parties herein had beeh living 1n the said house during the subsistence of the marriage. The testimony of the respondent confirms the above finding. This is what the respondent had testified in the trial court in examination in chief; "Katika ndoa yetu hatukujaliwa watoto kuishi kwetu tulijenga nyumba tunayoishi". The above extracted evidence can be translated as follows; 'during the subsistence of our marriage, we were not blessed with children. During our life time we managed to build a house which we are living therein.' To add salt to the wound, the appellant's evidence indicated, she was a business woman (mamalishe). In my settled view and in the foregoing circumstances, I find the appellant dully contributed to the acquisition of the said 6 t house, hence she deserves a sufficient share. Had it been that, the two lower courts properly scrutinized the adduced evidence before the court, obviously they would have come to a different conclusion. In the case of Bihawa Mohamed Versus Ally Sefu [1983] T.L.R 32 the Court of Appeal held; 'the 'joint efforts' and 'work towards the acquiring of assets' have to be construed as embracing the domestic 'efforts' or 'work' of · husband and wife.' On the same footing, the District Court would have considered the extent of the appellant's contribution towards the acquisition of the disputed house. There was clear evidence that her contribution included money (petty business) and house work in the context stated in Bihawa Mohamed's case (supra) as pointed above. 7 • From the above stated analysis and reasons, I find the appeal has merits. I hereby proceed to quash and set aside the entire District Court's decision in Matrimonial Civil Appeal No. 5 of 2017. In the event, I order the said house be divided equally between the parties, since the evidence is overwhelming that the same was jointly acquired by the parties herein. Further the trial court's order compelling the respondent to pay the appellant Tshs. 500,000/= as compensation is quashed and set aside. Meanwhile the trial court's finding of dividing the kitchen utensils equally between the parties is hereby sustained. All in all, the appeal is allowed with no order for costs. y ." --.j'' B.R. MUTUNGI JUDGE 25/10/2018 . 8 . Read this day of 25/10/2018 in presence of both parties. r J. 8.R. MUTUNGI JUDGE 25/10/2018 Right of Appeal Explained. ,t- s B.R. MUTUNGI JUDGE 25/10/2018 9