Jumanne Hamis suleiman v Rukia Mustapha Matrimonial Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA PC CIVIL APPEAL NO. 000014505 OF 2024 JUMANNE HAMIS SELEMAN .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS RUKIA MUSTAPHA .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J, 28/11/2024 & 15/01/2025 In the trial court, the appellant sued the respondent for divorce, division of matrimonial assets and an order that the respondent hands over to the appellant his clothes and appellant’s documents. The trial court granted divorce on 22/11/2023. It divided a house situated at plot No. 333 at 30% to the appellant and 70% to the respondent. It did not make an order as to the relief sought by the appellant about clothes and documents. Aggrieved by the verdict of the trial court, both the appellant and the respondent appealed to the District Court. In the consolidated appeals, the 1st appellate court partly allowed the appeal. It ordered as follows: 1. The plot No. 333 Block ‘O’ Mwanga Majengo is not matrimonial asset and should remain to SU1 Rukia Mustapha. 2. Four boats are not matrimonial assets. 3. Two motor vehicles are not matrimonial assets. 4. The document of the properties be remained to parties as before the case at trial court was instituted. To usher his dissatisfaction with the judgment and decree of the first appellate Court, the appellant enlisted five grounds of appeal. The counsel for the appellant abandoned the 4th and 5th grounds of appeal and argued the 1st, 2nd, and 3rd grounds of appeal which however, essentially assail the decision of the first appellate court for failure to properly re-evaluate the evidence that was in the record of the trial court. From those grounds, of appeal, Page. 1 however, the appellant asked this Court for the following reliefs: 1. The appeal be allowed thereby quashing and setting aside the decision by the district Court of Kigoma on division of the suit matrimonial house/asset. 2. The apportionment of the value of the suit house be re-made in accordance with truthful contribution suggesting rate of 70% in favour of the appellant and 30% to the respondent. 3. The respondent be ordered to surrender the appellant’s belongings, clothes and certificates left in the suit house. 4. Costs of this appeal be granted. 5. Any other reliefs deemed just and fit by the honourable Court. The respondent resisted the appeal. She prayed the appeal be dismissed for lack of merit. She further prayed the decision and orders of the trial court be upheld, costs of the appeal be borne by the appellant and any other reliefs may this honourable Court deem fit and just to grant. It is not disputed evidence that the appellant married the respondent in the year 2012 in Islamic rites. The marriage was not blessed with any issue. The appellant said, they were engaging in sardine business, and later cereals and sell then in Congo. In 2015, they bought a small house at T.shs 16,000,000/= which amount was paid in instalment. He decided to register the house in the name of the respondent, because the other wives had their own residential houses. Later they rehabilitated the house and built a large house. They too bought two motor vehicles one make Toyota Vista and another make Suzuki. He said the cause of breakdown of their marriage was that the respondent wanted to kill him by poison because she had been married by another man called Malilo in Congo. Too, her former husband came home and her children did not like him, he had to run away. He prayed for division of the properties, and his clothes be returned to him. SM2 Juma Hamis confirmed to sell the plot to the parties to this appeal and payment done by instalments, but it was the appellant who paid. The respondent denied to have acquired any property during the subsistence of their ruined marriage. She said she owns the house because it is in her name and added that she bought it in collaboration with SU2, her former husband, from SM2. She also testified that, SU2 gave her T.shs 20,000,000/= via her children because their children (Sada and Jamila) were harassing him, to give her kitoka ujumba after they divorced in 2010. She went on to say: “… Baada ya kuachana watoto walimuharass baba yao sana kuhusu mali. Watoto walimdai anipe mali iwe yangu na ya watoto. … Watoto walimdai baba yao nyumba ili wakaishi … … Mzazi mwenzangu alinipa support ya kujenga kwa kuwapa fedha watoto waliniletea … Mimi sijachangia sababu sikuwa nafanya chochote.” She also confirmed she had never bought a motor vehicle nor owned one. She further avowed that the appellant left nothing at her home when he moved away, and that he does not claim anything from her. She also asserted that the Page. 2 one who divorces another (anayetoa talaka) is the one who has to pay kitoka ujumba. This is what she said, “Yeye ndiye ameniacha mimi wakati nataka kuishi naye.” She went on: “Haruta hakunipa kutoka unyumba wakati ananiacha. Ndio maana alinipa T.shs 20,000,000/=. Alinipa mbele ya watoto … Mahakama iamini nilipokea pesa kutoka kwa watoto na kusimamia ujenzi.” Biashara yangu ni ndogo ndogo. Ni sawa na kuniita mama wa nyumbani. … Nyaraka za maboti nilikuwa nazo muda mrefu wakati wa mgogoro. Nyaraka za boti nilificha kwa kuwa SM1 hakusema maboti ni ya nani?” SU2 is a machanic. Despite to have worked in Oman prior to divorce, he did not pay that kitoka ujumba, saying: “Sikumpa kitoka ujumba kwa sababu nilikuwa sijajipanga nilikuwa najipanga.” In his evidence, there is nothing to prove his income. It is noteworthy here that SU3 Sada is aged 29 and SU4 Sharifu is aged 32. When the appeal was called on for hearing, Mr. Ignatus Kagashe, learned counsel appeared for the appellant. The respondent had the services of Mr. Prosper Maghaibuni, also learned counsel who addressed the Court in opposition of the appeal. As it is the practice, Mr. Kagashe, learned counsel for the appellant was the first to address this Court about the appeal. He was clear as daylight that they appeal against the decision of the District Court of Kigoma. He was also clear that the parties dispute in respect of the house. He pointed out that no party was interested the divorce decree be overturned. Mr. Kagashe told this Court that they have five grounds of appeal and he would address the 1st ground first. With regard to what amounts to matrimonial property, he referred me to Bi Hawa Mohamed v. Ally Seif, [1983] T.L.R. 32 which defines matrimonial property, as the property acquired by the parties with the intention of continuing provision of the parties during their living together. To him, the house in question is a matrimonial property because it was acquired by joint efforts of the parties to this appeal. Mr. Kagashe elaborated that both parties tendered documents for the construction or rehabilitation of the house. Appellant tendered exhibit P.3 receipt of purchase of iron sheets while the respondent tendered receipt for purchase of cement. He went on to say that PW.2 Juma testified that he sold a plot with a servant quarter, and he was receiving the money from the appellant. The appellant proved on the works he was doing to get money for the construction of the house, which is business of boats, and business of cereals (nafaka) and sardines. We pray the ground of appeal be allowed. Page. 3 After having addressed the Court on the 1st ground of appeal, Mr. Kagashe argued the 2nd and 3rd grounds together. On these two grounds, he elaborated that they dispute the fact that DW.2 gave money to the respondent 30,000,000/= and DW4 gave her 20,000,000/= and persuaded me that DW2 had not built a house for their life time. The respondent said she received the money but DW3 said it was supplied to him, they send to Hassan and it is Hassan who gave the money to the respondent, said Mr. Kagashe. He also criticized the decision of the first appellate court basing on the fact that Hassan did not testify, even Hamis did to come to testify as to the money. He is of the opinion that the ex-husband and the child of the respondent had an interest to serve. He said it is questionable for Sharif to have given money to her mother, while at the material time he was in prison. He pressed home his view that had the district court done re-evaluation of the evidence, it would have not declared that the house is the property of the respondent personally, for this position of the law, he re-echoed Hassan Mzee Mfaume v. Republic, [1981] T.L.R. 167, that the 2nd appellate court may re-evaluate the evidence. He craved this court to restore the decision of the trial court in respect of house in dispute and it be said that the house is a matrimonial property and the appellant had large contribution, the appellant gets 70% while the respondent gets 30%. Mr. Kagashe finally beseeched the appeal be allowed with costs. Mr. Maghaibuni was minded to traverse the appeal in reply submission. He was unequivocal that regarding the evaluation of evidence, the district court properly evaluated the evidence. He stressed that parties have to prove contribution to the acquisition of the matrimonial property. Mr. Maghaibuni maintained his stance that the respondent tendered the certificate of occupancy of the plot and there is a receipt for the purchase of the cement, which to him proves that the appellant did not contribute anything towards the acquisition of the same. He added that the transaction was physically where the former husband paid the money at 20,000,000/= exhibit D.9. He however, said that the sale agreement (exhibit D.1) has no stamp duty, it has to be expunged from the from the record. Mr. Maghaibuni was explicit that DW.2 gave clear evidence on how he gave the money to his children for the house is in dispute and added that DW.4 also proves that. Mr. Maghaibuni went on to address the Court that the other buildings were constructed by the respondent by petty businesses, but there is no any evidence about any levy for conducting such businesses. He was clear that the respondent said, the boats were the property of the brother of the appellant and the same was cross-examined about the same. Mr. Maghaibuni likewise maintained that the claim about business of selling cereals were not cross-examined about. He, nevertheless, prayed that the appeal be dismissed without costs. Reinforcing his position, in rejoinder submission Mr. Kagashe reiterated the submissions in chief. He stressed that the claimed 50,000,000/= were not proved, and exhibit P.20 contradicts the testimony of the respondent and of those other witnesses. He also emphasized that the crucial witnesses were not called such as Hassan. He also opined that it is illegal to paid Kitoka ujumba if the divorcee was re-married and that DW.5 said that transaction is illegal because she ought to be paid within 3 months of divorce. Mr. Kagashe also pointed out that it is in record that the appellant decided the plot be in the name of the respondent because, the other wives of the appellant had other plots. He then rested his rejoinder submission. Page. 4 I have considerably considered the antagonist submissions. I have also taken time to go through the evidence that is in the record and consider the same. I readily accede that the appeal is merited on the ground that the first appellate court did not properly analyze the evidence that was in the record. Had it properly analyzed, it would have reached at a different conclusion and decided as I will do. Indeed, Mr. Kagashe invited me, a 2nd appellate Court to re- evaluate the evidence in the trial court under the authority of the case of Mfaume (supra), Mr. Maghaibuni, did not object that suggested approach, and in my view, properly so. It is common ground that division of matrimonial property is based on contribution as clearly stated in Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 CAT (unreported) where it was held that: “The extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property. … It is clear therefore that extent of contribution by a party in a matrimonial proceedings is a question of evidence. Once there is no evidence adduced to that effect, the appellant cannot blame the High Court Judge for not considering the same in its decision. In our view, the issue of equality of division as envisaged under section 114 (2) of LMA cannot arise also where there is no evidence to prove extent of contribution.” Going back to the evidence that is in the record and the submissions of the counsel of the respective parties, I am inclined to accede to most of the submissions of Mr. Kagashe. Because the respondent and SU2 did not prove how he was able to raise (earn) the T.shs 20,000,000/= which SU2 is allegedly gave for the purchase of the plot, bearing in mind he was not able even to pay the so called kitoka ujumba at the time of their divorce because he had nothing to pay (anajipanga). There is nothing to prove that SU2 as a mechanic would earn that amount of money and give the same to the respondent. Further, the availability of the money for the construction of the house on the part of the respondent is questionable. That reinforces the evidence of the appellant which was supported by SM2 that it is the appellant who paid for the purchase of the plot and paid for the construction of the house out of the money he earned from business which the respondent did not dispute. I am tempted here, as Mr. Kagashe was tempted too to say SU2 and other witnesses of the respondent had interest to serve which borders ill will. They ganged against the appellant. SU2 might have been angry of the appellant because of either snatching the respondent from him or living with respondent. On this approach I am guided by Ndorosi Kudekei v. Republic, Criminal Appeal No. 318 of 2016, CAT, (unreported): “The question we ask ourselves on the glaring contradictions above was, as to why there was a change of mind by PW4 and PW5 in their testimonies before the court, from the statements which they had earlier on made at the Police Station? For whatever reasons that might have occasioned it, the situation could not fail to let one raise Page. 5 eyebrows and be tempted to think that there was something sinister. Such situation did give credence to the doubt raised by Mr. Materu, in regard to the cautioned statement of the appellant that, the last sentence which reads “nipo tayari kwenda kuonyesha mwili huo na simu”, was most probably added at a later time for a purpose”. So, the evidence of the appellant is probable while that of the respondent is improbable. The situation enhances the evidence of the appellant as was decided in Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004, CAT (unreported) where it was stated that: “Good reasons for not believing a witness include the fact that the witness has given improbable evidence, or the evidence has been materially contradicted by another witness or witnesses.” Mr. Kagashe explained the contradictions in the evidence of the respondent. Those contradictions are true which under Bundala’s case (supra) gives ground for not believing the respondent the way she acquired the money for the purchase of the plot and ultimately rehabilitation of the servant quarter and construction of the house in question. The appellant gave cogent evidence on the way the plot was purchased and how he obtained the money for the purchase of the plot by way of business. He gave cogent evidence too on the reasons he decided to move (ran) away from his home which are SU2 coming back to the house, him being harassed by the respondent and her children. On harassment by the children, he is supported by the respondent who said the children were harassing SU2 over kitoka ujumba. If they were able to harass their biological father, harassing their step-father becomes likelier. Mr. Maghaibuni pressurized me to find that the respondent bought the plot and constructed the house from the money she obtained from SU2 and others and there is a proof of receipt for payment for purchase of cement. I rebuff the contentions on the correct ground advanced by Mr. Kagashe that there is no proof how SU2 earned that money him merely being a mechanic who even failed to pay kitoka ujumba when he divorced SU1 on financial constrains which he himself testified on. For the court to accept his evidence that he became well financially to be able to give that amount of money that he is claimed and he claimed to have advanced to the respondent needs cogent evidence over earning the same which is not here. There is no any evidence that SU1 and SU2 divided matrimonial assets when they divorced in the year 2010 which implies that they had nothing to divide among themselves, how come he turns to be a millionaire handing-over over 20 million Tanzanian shillings just like that? The issue of the certificate of occupancy being in the name of the respondent is well explained by the appellant that he did so in order to afford accommodation to his wife as it was the situation to his other wives. The house in question therefore is presumed to be held in trust for the other spouse (the appellant). Page. 6 Regarding the reliefs sought, particularly the division of the matrimonial house, it appears to me that the appellant was affected by the trite law that performance of domestic duties amounts to contribution towards acquisition but not necessarily 50% which was enunciated in Bibie Maulid v. Mohamed Ibrahim [1989] T.L.R. 162. Thus, he demanded division at the rate of 70% to the appellant and 30% to the respondent. As for me, I am bound by the pleadings and I cannot grant a relief that has not been prayed for. This is the clear position of the law as per Ibrahim Twahili Kusundwa & Another v. CRDB Bank PLC & 3 Others, Civil Appeal No. 194 of 2021, CAT (unreported) dated 19/01/2024 where it was underscored that: “Secondly, to clinch the matter for the third and fourth respondents, the 1st appellant shot himself in the foot by admitting in his testimony that the property earned him not less than TZS. 362,000,000.00 per annum, which turns out to be TZS 30,166,666.67 per calendar month. The 1st appellant, having made the above admission on affirmation against his own interest cannot now deny the truthfulness of that fact.” See also Magnus K. Laurean v. Tanzania Breweries Ltd, Civil Appeal No. 15 of 2018, CAT where it was stated that: “… In the instant case, we find no basis to interfere with the learned Judge’s award. First and foremost, she was justified to vacate the order for reinstatement on the ground that it was not prayed for in the referral form. It is settled that generally an arbitrator or the High Court, Labour Division has no jurisdiction to grant a relief which is not prayed for in the referral form, the said form being understood synonymously with a plaint.” In the evidence, as I have illustrated above, the respondent clearly stated that in the acquisition of the house, she contributed nothing because she did nothing. That would have perfectly entitled me to distribute the house 100% to the appellant. But I cannot do so because I am bound by the prayers of the appellant as I have already indicated above. Having discussed as herein above I quash the judgment of the district court and set aside its decree. In place of the decree of the district court, I decree that the house on plot No. 333 Block ‘O’ Mwanga Majengo Kigoma/Ujiji municipality is divided between the parties at 70% to the appellant and 30% to the respondent. Documents of the appellant particularly those which were tendered in Court by the respondent and collected by the respondent from the record on 16/02/2024 Registration cards for Motor vehicle with No. 3926804 and T. 478 BHP and three registration cards for three boats with No. 111392, 011109 and 011075 as depicted in the handover document available in the case file be handed over to the appellant. As it is not clear as to the type of the clothes and quantity of the clothes claimed by the appellant, I make no order as to their return. Consequently, the appeal is partly allowed to the above extent. I make no order as to costs because this is a family case. It is so ordered. Page. 7 Dated at KIGOMA this 15th of January 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 8