20180313 TZHC Moshi

IN THE HIGH COURT OF TANZANIA MOSHl DISTRICT REGISTRY AT MOSHI (PC) CIV~L APPEAL NO. 8 OF 2017) ~C~F Civil A~peal No.;4 Of 201! Moshi District Court (at Moshi) Original Mada1 ya Talaka, No. 3 of 2011 ·•. JUMA GISHANGA STIMA ..:, •.......•.... I .............................. APPELLANT Versus ·AMINA MAH IM BO .. ■• 1111 • · · ■ ••••• ■ ■ ••• ■ ■ •••• I ••• ■ II ■ • • • • • • • • Il ■ ■ ■ •• ■ ••••• RESPONDENT 11 Last Order: 27 th Feb, 2018 Date of Judgment: 13th Mar, 2018 JUDGMENT FIKIRINI, J. This is the second appeal by J.uma Gishanga Stirna. Before the Uchira · Primary court the respondent Amina Mahimbo filed Miscellaneous Civil Application No. 1 of 2015 initiating ·division of matrimonial assets after a successful divorce case in Matrimonial Case No. 3 of 2011..The matrimonial property subject to division according to the respondent was a house at Page 1 of 12 \\ ---~~~...>\\ ,_ \, ,>.· I \ \, Himo, four plots located at Kilototoni and a motor vehicle. The appellant contested the claim. \ \ After hearing from the parties the Uchira Primary court arrived at the following decision: one, for the plot at Kilototoni where there is a house, ~he respondent was given ¼ ( quarter) while the appellant was to _keep the rest ¾ (three quarter). According to the records, the respondent found the house already in place and only contributed to buying trees for - planting. Two, the house at Himo belonged to the appellant. The respondent contributed by erecting an extra room whereby she provided six (6) pieces of iron sheet. It was· decided the house to remain with the appellant and the respondent to retain the extra room but it was also possible for her to be bought out. Three, the plot was claimed jointly bought. The respondent testified to have contributed in purchasing the plot by giving out money and also cooked for the appellant, since she was his wife. A copy of sale agreement was admitted to this effect. The plot was divided in half. Four,_ the plot at Himo measuring one and a half acres (1 ½) bought on 25 August, 2012, the respondent being one of the witness. The plot was ordered to be retained by the appellant as it was bought after Page 2 of 12 ~~ ,1 : I i I' the parties had long divorced. Five/ the fourth plot was concluded to be matrimonial property but with no decision as to how it should be divided . . Aggrieved by the. decision-the appellanLappealed to the ...Distri.ct_court which upheld the lower court' decision and hence this appeal with nine (9) grounds of appeal. The grounds are as follows: 1. The District court grossly erred in law and fact in finding that the plot and the house built there at Kllolotoni area to be divided between the respondent and the appellant while it was not Jointly acquired 2. The District court erred in fact and law on making a line of distinction for the properties acquired during the subsistence of the marriage and after the divorce (sic/). 3. The appellant and the respondent were divorced in 2009 and the plot at Ktlototoni was bought by the appellant in 2012 and the respondent therein was amongst the witnesses/ whereby the document for sale didnt mention her as my wife because we had a ciivorce. 4. The District court didnt: divide the plot bought on 25/08/2012 because document for sale was made after the divorce for that reason why should I given a plot which was bought ;fter: the divorce on 26h /08/2012. / , . Page 3 of 12 I j \\ 5. The District court divided the Njoro plot equally between the respondent appellant the respondent haven't any evidence for bought that plot \ 6. It is settled law under the provision of section 114 of the law of marriage act that .. _. .in.division .of matrimonial--asset there mustbe-·eviaenceto-show the extent of contribution before making an order of distribution/ the respondent havent any evidence. 7. Receipt of purchase tree may be proof of purchase ofplot? 8. The respondent stated that she has proof of purchase four plots in the name/ there any document as evidence that she brings with her name (see the Judgment primary court page 2). 9. I attach documentsplots and divorce with my name as evidence. The grounds of appeal were followed by the orders rrayed: a) Quash and set aside judgment and order of the lower courts. b) Order for devoice and the respondent to pay costs. c) Make any other order deemed just. At the hearing parties appeared and were both unrepresented. The appe'llant had nothing much to submit· except stressing that all the properties were singly acquired. He provided the evidence but the lower Page 4 of 12 I ' courts ignored it. He pointed out that all the documents were in the Court record and thus urged this Court to give him his rights. The respondent as well. _bad nothing. --much to submit apart--from _____.__ --- highlighting that those who sold them the plot adduced their evidence in court. Based on their evidence the courts arrived at the decision she considered correct. Disputing the evidence that the plot she was living in I was bought in 2012 after she was already divorced, the Respondent contended that was new evidence. Stressing on the two lower courts' decision she stated that they did not favour her as all the four (4) plots were jointly acquired during the subsistence of the marriage. I have dispassionately gone through -the lower courts records and the grounds of appeal. But beforJ I embark on answering as to whether this appeal is meritorious or not, I find it important to point out few things. That in order to fulfill the obligation stipulated under section 114 (2) (b) of the Law Marriage Act, Cap. 2~ R.E 2002, any court tasked to decided on who should get what the following must fulfilled: (i) the court must be furnished with sufficient detai'I and evidence over the alleged matrimonial assets subject to division between the parties. (ii) there has to be a proof Page 5 of 12 that the pr(?perties were acquired during the subsistence of the marriage, (iii) extent of each of the spouse's contribution must be clearly stated. In \\ \' the present case, I find that has not been fulfilled. My reasons for saying so are. as follows: ~ one,:_gQiD9 by the evjdence .:..------- -------- .. . on recorEl there-seem-to be several plots: L A plot bought in 2004 though no document was supplied as proof of purchase. II. Another plot purchased from Mwalimu. Kiogwe on 4/5/2005 measuring one and half (1 ½) acres for Tshs. 175,000. III. Plot purchased on 4/1/2006 from Saidi Juma or Sairnon Mgalle measuring 1 acre for Tsh. 110,000/. The plot is located at Njoro - Ghana and with the following borders: north - Stanley Reobathi, . . . east - Hamadi Iddi, west - Daudi Senkondo and South -Mohamed Ally. A copy of the sale agreement tendered and admitted as annexture "E" but was not certified as required in law, as there was stamp but without Commissioner for Oaths signature. · IV. . Plot purchased on 30/7/2006 from Mohamed Ally with· the following measurements: north - 44 paces and bordering the. Page 6 of 12 " ___ _:_ __ ... -,/ road, west - 48 pa~es and bordering Stephano Kiveliani, east -48 -- . paces and bordering Miraji Hamisi and south - 44 paces and bordering the railway. A certified copy was admitted as annexture . ··- ... "Di'' the document wa·s equally not certified. V; Plot purchased on 25/08/2012 with the following measures 35x22, 140, 95 and 100 for Tshs. 170,000. Two uncertified copies were admitted as annextur~s "D" and-"Fi" It was not only important ,but necessary for the trial magistrate to specifically point out which plot was referred in the division · of the matrimonial asset. Mentioning a plot at Kilototoni without further details was not enough. As once there is more than one plot, it is inevitable \for confusion not to occur. In the present case the respondent was claiming for division of four plots located at Kilototoni acquired during the subsistence of the marriage, but without much evidence supporting her claim. Additionally, when the respondent filed for an application for matrimonial assets, the claimed properties subject to division should have featured in the statement sheet; otherwise conduct of the hearing would include just Page 7 of 12 \ \ ~ \ \ anything that would have come through a party's mind. It is important to \ have a clear list of what is,claimed or presumed as matrimonial assets subject to division. -~-------- - - - - - - - - - This besides- giving the· -responaenf-lne"r1 room to prepare his case but would have guided the court along. I am aware of different set of rules applicable before the Primary court but darity on the claims was without a doubt not one of them. / Tendering and admission of exhibits should as well be properly addressed. A certified copy which has been signed by the Commissioner for Oaths any person allowed to do so can only be admitted after explanation as to the whereabouts of original copy has been given. Exhibits should not be treated lightly as they are part of evidence and ultimately records of proceedings. Two, it is undisputed fact that the appellant had more than one wife. To support his assertion the appellant tendered marriage certificates to that effect which were admitted as annextures "A" for the marriage contracted in 1999 between the appellant and Hadija Gaspa. Annexture "Bi" for marriage between the appellant and Khadlja S. Mnzava, contacted in 2000. Page 8 of 12_ , I .t The appellant and the respondent contracted theirs in 2003, as exhibited in "B". Lastly, that between the appellant and Amina Hussein in 2008 as exhibited by annexture "Ci". The respondent acknowledged this fact. With that fact in place, it was as well important to consider if the claimed . . matrimonial properties were solely acquired by the parties before the court or the other wives had their contribution as well. This is more so, when considering that taking care of a husband also counts as contribution when it comes to division of matrimonial assets. Three, since the law demands that a party has to substantiate· his/her claim a proof as to his/her contribution is a must. Failure to do so leaves the statement as mere claim. At page. 2 of the typed proceedings, the respondent had this as her testimony; "~iliolewa mnamo 2003 tulianza kuishi Himo kwenye mji wake. Tu!ipohamia Kilototoni kuna baadhi ya mambo tulifanya pamoja. Nyumba ya Himo, viwanja vinne Kilototonl gari ndogo, ndivyo hivyo tu//[Emphasis mine] From the respondent's account only some of the activities were jointly carried out but did not mention which one. However, at page 6 of the Page 9 of 12 ', \7 \ i\ \. \\ judgment the. trial magistrate in deciding who should get w~at had this tq · \ \ say: \ - \\ "Hivyo basi kutokana na ushahidi u!iotolewa upande wa ' • I' -----~---------- - nidai ameonekana alichangia kwa kiwango . kikubwa kiwanja hicho, kwa sababu yeye alikuwa mstaafu alitoa fedha zake kununulia kiwanja hicho"[Emphasis mine] The conclusion that she contributed hugely to the purchase of the plot just because she was retired was first and foremost unsupported. And secondly, even if, what was being said was indeed what transpired, the respondent, I believe would not have hesitated to state exactly her contribution in terms of figures, as some of the plots purchased had the price. Third!½ also from the account the reference is in my view refers to one plot only. In most cases a decision based on a general statement that something has been done one way or the other, becomes difficult to be appreciated, in the absence of good evidence. This however, does not mean each and every contribution can be quantiAed or given a price tag but with reasonable explanation can be Page 10 of 12 qualified for the court's consideration as deserving. A good example is thing·s such as, running of a household, washing, cleaning, cooking and general taking care of the husband by providing comfort are all a contribution towards the husband's success while out performing his duties. They should not be ignored or undervalued, but carefully and reasonably weighed. Four, acquisition of assets be it matrimonial or otherwise involves ones effort, time and sometimes money, and therefore should be consider~d carefully. In short this is parties:' livelihood. Therefore if not judiciously considered during separation or divorce, can completely ruin one's life. Each and every factor must hence be cautiously assessed, lest the division not only be inoperable, but also unjustly, hopeless and detrimental economically. I am so much aware that this being a second appeal, this Court must warn itself and only interfere with the two concurrent lower courts' decisions when it is really necessary. See: DPP vJafari Mfaume Kawawa (1981) - i T. L. R 149. Considering all the stated above, I find, entertaining this I,! I' appeal at this stage would be pL:Jtting a cart before a horse. With the 1· I L Page 11 of 12 I I I ! ~:, \~ irregularities pointed out, I thus proceed to quash the two lower courts' . decision and set aside all the orders emanating therefrom. Accordingly I order retrial of the division of the matrimonial assets. In the interest of - --- - -------~!dstice, the matter be placed ~-befcwe-a---different magistrate-who should---------- --- consider the pointed out areas. After the decision any aggrieved party can then proceeq tq 9ppeal. No order to costs. It is so ordered. · ~ P.S.FIKtRINI JUDGE 13th MARCH, 2018. Page 12 of 12