PC MATRIMONIAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (K IG O M A S U B -R E G IS T R Y ) A T K IG O M A PC. MATRIM O NIAL APPEAL NO . 3 OF 2023 JENITHA HUSSEIN HINYULA APPELLANT V ER SU S STEVEN KA LENGE LUBEZAGI RESPON D EN T (Appeal from the Judgment and decree of the District Court of Kasulu at Kasulu) (I. D. Batenzi, SRM) Dated 27th day of March 2023 In (Matrimonial Appeal No. 3 of 2022) JUDGM ENT Date: 09/05/ & 28/06/2024 NKWABI, J.: In this appeal, none of the parties is interested in salvaging the ill-fated marriage between them. The appellant got out of the matrimonial home because of accusations by the respondent that she was committing adultery with different men. Indeed, it is in evidence that there is a civil suit lodged in the district court of Kasulu about adultery where the offending parties were found liable and ordered to pay compensation to the respondent in this appeal. The High Court, (Manyanda, J.) in an appeal, on the 19th day of August 2022 confirmed general damages to the respondent in this appeal at the tune of T.shs 10,000,000/= with costs against the 2nd appellant therein namely Marko Mpolenkile for adultery 1 w ith th e a p p e lla n t in th is a p p ea l. T h e jud g m e n t o f th is C o u rt in DC. C iv il A p p e a l N o . 1 o f 2 0 2 2 is a v a ila b le o n Ta n z L II . B e th a t a s it m a y , th is is a n a p pe a l fr o m th e d e c is io n o f th e d is tric t co u rt w h ic h o v e rtu rn ed th e d e c is io n o f th e tria l c o u rt w h ic h d iv ide d the ma trim o n ia l a s se ts h a lf b y h a lf to th e p a rt ie s . T he fi rs t a p p e lla te c ou rt in ste a d o rd e red th e d iv is io n o f the m a trim o n ia l a s s e ts jo in tly a c qu ired b y th e p a rtie s 3 0 % to th e a p pe llan t an d 7 0 % to th e res pon de n t. T h a t p iq ue d th e a p p e ll a n t an d th a t is th e m a in g rie v a nc e in a ll 7 g ro un d s o f a p p e a l th a t w e re fi le d in th is C o u rt, s h e h o ld s a s ta n c e tha t s h e is en title d to d iv is io n o f th e m a trim o n ia l a s s e ts e a c h on e to g e t h a lf o f th e as s e ts . T he a p pe a l w as h e a rd b y o ra l s u b m is s io n s . B o th p a rtie s a ppe a red in p e rs on , un re p re s e n te d . E a c h pa rty sto o d to th e ir sta n d v ie w a nd le ft to th e C ou rt to d e c ide . T h e la w a s to d iv is io n o f the m a trim o n ia l a ss e ts a c q u ire d b y jo in t e ffo rts to the p a rtie s to a m a rria g e is leg e n d a ry ju st a s c ite d b y th e firs t a p p e lla te c o u rt . I m a y a d d o n e o f th e m fo r ea s y o f re fe ren ce , a nd th is is n o t o th e r th a n th e d e c is io n in Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 CAT (unreported) where it was clearly held: 2 "Th e exten t of con trib ution is of utmost importan ce to be determin ed when th e co urt is fa ced with a predicament of division of ma trimonial property.... It is clear th erefore tha t exten t o f con tribution by a party in a ma trimonial pro ceedings is a question o f e vidence. On ce there is no e viden ce a dduced to tha t effect; th e appella n t canno t blam e the High Co urt Judge fo r no t considering the sam e in its decision . In o ur vie w, the issue of equality of division as en visaged under section 1 1 4 (2) of L MA cann o t arise also wh ere th ere is no e vidence to pro ve exten t of contrib ution. // Now, the points that appear to have skipped the first appellate court are first, that courts of law are not there to assist a party to prove their case. That is as per Barka Saidi Salumu v. Mohamedi Saidi. [1970] H.C.D. No. 95 Hamlyn, J. where he held that: (1) ''I fully agree with the opinion of the District Magistrate that it is for a party to present his or her own case to the Court and not for the Court to make a case for the litigant. . . . This clearly is not so/ and the litigant should produce 3 what evidence there is to establish her case. It is only rarely that a court will of its own motion in cases such as this seek to clarify an issue by requiring an additional witness. // Secondly, it is the one who would fail who has the duty of proof and not the defence, see Barelia Karangirangi v. Asteria Nyalwambwa, Civil Appeal No. 237 of 2017, CAT (unreported) where it was underlined that: ''It is similarly that in civil proceedinqs. the party with the legal burden also bears the evidential burden and the standard in each case is on a balance of probabilities. // It was the respondent (as the plaintiff in the trial court) who was duty bound to prove his extra contribution towards the acquisition of the matrimonial properties as opposed to that of the appellant. See also East African Road Services Ltd v. J.S. Davis & Co. Ltd. [1965] E.A. 676 "He who makes an allegation must prove it It is for the plaintiff to make out a prima facie case against the defendant. // Thus, it is my strong opinion that the first appellate court had no sufficient ground for receiving additional evidence. This is because, the respondent himself, who was the plaintiff in the trial court, said the appellant was 4 supervising the business of the family. He even indicated, in evidence in chief, that the appellant was staying at the business until 08:00 pm or 10:00 pm. My stand view, I hope is well supported by the decision of this Court in Michael Kombere v. Kone Parosoi [1970] H.C.D. No. 115. (PC) Bramble J., held inter alia that: (1) "There is nothing on the record to show that additional evidence was necessary to clear up any point . . . These facts were never in dispute at the trial. An appeal to a District Court is not a retrial and the appellate court in this case was clearly wrong to act as it did. // (2) Appeal allowed. In the upshot, I allow the appeal because it is merited. The decision of trial court is restored while that of the district court is quashed. Further the orders of the district court are set aside. Each party shall bear their own costs on account of the fact that this is a family matter. It is so ordered.