juliana charamba vs sosthenes paulo mwita 2016 tzhc 2043 31 october 2016

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM (APPELLATE JURISDICTION) CIVIL APPEAL NO. 88 OF 2016 (Originating From Temeke District Court Matrimonial Cause No. 49/2011) JULIANA CHARAMBA.......... ................... ....................APPELLANT VERSUS SOSTHENES PAULO MWITA................................... RESPONDENT Date of Last Order: 14/09/2016 Date of Judgment: 31/10/2016 JUDGMENT FELESHI, J.: In the District Court of Temeke at Temeke, the appellant sued the respondent for dissolution of marriage and decree of divorce, equal division of some matrimonial assets jointly acquired, arrears of maintenance for the petitioner since January, 1997 to the date of determination of the case, costs of the petition arid any other reliefs the Court deemed just. After hearing of the petition, the marriage was dissolved with a decree of divorce granted as prayed, an order for payment of Tshs. 3,000,000/= being contribution to the matrimonial house and an order for the appellant to vacate the matrimonial house within three months from the date of Judgment. No award as to costs was issued to either party. Aggrieved, the appellant filed this appeal on five (5) grounds to wit: 1. That, the trial Magistrate erred both in law and in fact by ordering the respondent to pay the appellant only Tshs. 3,000,000/= as contribution towards acquisition of the matrimonial house, an amount which is not equivalent to her contribution. Page 1 of 6 2. That, the trial Magistrate erred both in law and in fact by holding that the appellant failed to prove her contribution in acquisition of the 2nd matrimonial house. 3. That, the trial Magistrate erred both in law and in fact by failing to order division of the second matrimonial house between the appellant and the respondent. 4. That, the trial Magistrate erred both in law and in fact by admitting exhibit "R5" as evidence that the respondent received a revocation letter from Temeke Municipality while in reality, the houses are still under his possession. 5. That, the trial Magistrate erred both in law and in fact in concluding that there is no sewing machine while the appellant and the respondent had six sewing machines which are still under the respondent's possession. Hearing of the appeal was conducted by written submissions whereas the appellant was represented by Women's Legal Aid Centre (WLAC) while the respondent had services of Pato Legal Consultants & Advocates. Parties complied with the Court schedule, hence, this Judgment. Addressing the grounds of appeal, the appellant through Women's Legal Aid Centre submitted for the 1st,-2nd & 3rd grounds altogether that, during subsistence of their marriage, the couple acquired two houses in Kigamboni, two plots and six sewing machines which ought to have been distributed in terms of section 60(b) of the Law of Marriage Act, [CAP. 29 R.E, 2002] under rebuttable presumption of equal beneficial interest. Moreover, the appellant contributed more in acquisition of the second matrimonial house. It was argued that the appellant contributed in monetary terms, household and domestic works as per section 114(2)(b) of the Law of Marriage Act (supra) and as held by the Court of Appeal in the case of Bi. Hawa Mohamed vs. Ally Sefu [1983] T.L.R 32. Page 2 of 6 In respect of the 4th and 5th grounds of appeal, the appellant submitted that, the produced revocation letter issued by Temeke Municipality was a forged one with proof in terms of section 87(a) (ii) of the Evidence Act, [CAP. 6R.E, 2002]. Besides, the respondent misappropriated some of the assets by shifting six (6) sewing machines out of the matrimonial home also by selling two plots jointly acquired during subsistence of their marriage. In reply, the respondent's-counsel submitted for the 1st ground that, the appellant having deserted the respondent since 1997, she engaged into an infidelity relation with another man leaving the respondent taking care of the family with six children cannot be entitled to any share. Besides, the appellant failed to establish her contribution towards acquisition of the matrimonial asset built in 1984 for any entitlement whatsoever. Regarding the 2nd and 3rQ grounds, the respondent's counsel submitted that, there was no other house by the time the appellant deserted the respondent. He added that there is no evidence that established her contribution towards acquisition of the claimed matrimonial properties. Besides, plot number 88 block C also spelt as plot 13 block 38A in Kigamboni was granted to him by mistake and that it ought to have been granted to one Siagi Paulo M.wita as stated in letters dated 23/03/1999 and 26/07/2001 with reference number TEMP.LD/185474/11 issued by the office of Commissioner for Land in the Ministry of Lands and Human Settlements Development. Reference was also made to a revocation from the same authority dated 26/07/2001 with reference Na. LD/161913/52. Besides, the alleged sewing machines have never been in existence. Page 3 of 6 Ihe two referred letters dated 23/03/1999 with reference number TEMP.LD/185474/11 and 26/07/2001 with reference Na. LD/161913/52 were annexed in the written submission by the respondent's counsel which were admitted during trial as Exhibits "R5" collectively. Notably, for undisclosed reasons, the appellant did not file a rejoinder. Having considered the evidence on record and the respective submissions in this appeal, the following are the deliberations of this Court in disposal. ! A go through to the grounds of appeal, all revolves around acquisition, contribution and apportioning of matrimonial properties. : It is evident on record that, the appellant owns a house in Majohe I where the respondent does not dispute its ownership by the appellant adding that, his non resistance is because the appellant knows how she built using money given to her by the respondent for domestic use. j I ’ t Though the appellant asserts that' the couple own two houses in Kigamboni, the evidence on record by the appellant herself is that the couple acquired only one house during the subsistence of their marriage. On the other hand, the respondent stated during trial that the couple acquired two plots whereas plot 88, which has a house in Kigamboni was acquired by the couple during the subsistence of their marriage, but was later discovered to have been allocated to the respondent by mistake. The respondent added in evidence that, the other contested house is the one he built from some secured loans’ after departure of the appellant Page 4 of 6 from their matrimonial house in 1998 and 2002 as the appellant left their matrimonial home in 1997 as per the Court proceedings. I From the above state of affairs, this Court finds no reason to dispute the revocation of plot number 88 block C which is also spelt as plot 13 block 38A in Kigamboni and that the appellant did not contribute towards acquisition of the house she is currently in occupation. The assertions that the couple acquired six sewing machines and two more plots are not in evidence. Since the same were merely put forth through the appellant's submission, the same cannot be relied upon for they do not form part of the evidence. Such stance was stressed by the Court of Appeal in the case of case of the Registered Trustees of the Archdiocese of Dar es Salaam vs. the t. , Chairman Bunju Village Government and 4 Others, Civil Appeal No. 147 of 2006, (Unreported), (Dar es Salaam Registry) where the Court had the following in observation:- ...... We appreciate Mr. El Maarnry's point that a political settlement out of Court was given in the written submissions as a reason for the delay. With respect however, submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence......... ". It is from the above that this Court finds such averments to be of no legal effect. If that stood the truth, they ought to have been so testified during trial. Notably, there has not been any legal confrontation either in the grounds of appeal or rather, in the written submission that there was anything crucial which was testified during trial but was not taken on board in the proceedings by the trial Court. On that footing, this Court cannot be a Page 5 of 6 conduit of undermining the evidence accounting on what really happened as was well recorded by the trial court. Likewise, from the above in unison, this Court finds no reason to vary the findings of the trial Court considering that the appellant has been allocated the house in Majohe with apportion of Tshs. 3,000,000/= as contribution towards acquisition of the house. The appellant did not establish how much or at least at what level she contributed towards its acquisition through the alleged poultry business and at the same time managing to raise the house in Majohe. Also, even assuming that the said six sewing machines are in existence and that they were bought during the subsistence of the marriage, considering that the appellant left the matrimonial home since 1997 and it was the respondent who shouldered the responsibility to take care of their six siblings born from their marriage, yet, this Court finds the same to have been used in raising the siblings born from the marriage. In the premises, the appeal is found non meritorious in law and is hereby dismissed in its entirety. Considering that the parties were wife and husband who nevertheless need to maintain good terms for the sake and through ties of the blessed issues of the marriage despite that currently they do not greet each other since 1997, I make no order as to costs. It is so ordered. DATED at Dar es Salaar