ocr ABDALLAH THABIT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC. CIVIL APPEAL NO. 25013 OF 2024 (Arising from Civil Appeal No. 000028177 of2023 District court of Temeke and original Matrimonial Case No. 1159 of2023, Temeke Primary court (one Stop Centre Judicial centre) KHADIJA ABDALLAH..................................................................... APPELLANT VERSUS ABDILLAHI ABDALLAH THABIT............................................... RESPONDENT JUDGEMENT Date of last order: 28/11/2024 Date of Judgement: 29/11/2024 S.D. MWAIPOPO J, This is the second appeal lodged by the Appellant KHADIJA ABDALLAH against the Respondent, ABDILLAHI ABDALLAH THABIT on the decision of District Court of Temeke issued on 09/09/2024, by Hon. S.O Swai PRM. The grounds giving rise to this appeal are set out herein Delow as follows: - 1. That, the Tria! Magistrate erred in law and fact by setting aside the Primary Court decision and awarding 50% division of matrimonial property to both parties whilst the wis no proof from the respondent showing that he contributed anything in the purchase of the house of the appellant. 2. That, the trial Magistrate erred in law and fact by considering exhibit XM1 of the Respondent in determining the division of matrimonial property without any justifiable cause. 3. That, the trial Magistrate erred in law and fact by relying on evidence contrary to the dictates of section 110 of the Evidence Act Cap 6 R.E. 2022. 4. That, the trial Magistrate erred in law and fact by failing to a dheretothe principle of sanctity of the Municipal Executive Director. For ease of understanding of what actually took place in the trial court, it is apt to give the factual background of the matter. Briefly, as gathered from the available court's records, the Appellant and the Respondent were wife and husband who celebrated an Islamic marriage on 07th March, 1989. In the year 2023 the Respondent sought for divorce and division of matrimonial assets in the Primary court at Temeke. The records further reveal that, in the course of the trial before the primary court, the parties agreed on the issue of dissolving their marriage. The court therefore entered judgment on admission on the issue of divorce and awarded the Respondent with 20% of the matrimonial house located at Kibo Ibungo and the Appellant was awarded 80% of the same. Aggrieved by this decision, the Respondent herein appealed to the District Court of Temeke fronting several grounds for the appeal, whereby upon determination, the District court finalized the case by ordering equal distribution of matrimonial house located at Kibo Ubungo among the parties. The Appellant being dissatisfied with the decision of the District court filed this appeal. At the commencement of hearing, Mr. Albert Mkoyogo, learned cojnsel appeared for the Appellant while the Respondent enjoyed the sei vices learned Advocate Burhan Muss. The Appeal proceeded by way of written submissions as per the order of the court. The Appellant filed her submissions while the Respondent did not file his submissions. When the matter was initially set for the delivery of the Judgement on 28/11/2024 the Respondent pleaded to the court to grant him extension of time to file his submissions beyond the deadline stipulated by the court for the reason that there was confusion of dates on the part of the Respondent. However, the argument was denied and dismissed by the court as the order issued by the court was very clear and had to be complied with. The matter was then fixed for delivery of Judgement. Submitting in support of the appeal, Mr. Mkoyogo stated that in considering the division of properties between the parties, the court did not observe the principle under section 114 of the Law of Marriage Act, Cap, 29 on the extent to which the parties have contributed in the acquisition of properties. He cited the case of Shakila Lucas vs. Ramadhani Sadiki (civil appeal no. 349 of 2020) TZCA 36 where the Court of Appeal of Tanzania also elucidated on the criteria provided for under Section 114 (2) of the LMA which a trial court has to consider when dividing the properties between the parties as follows:- Section 114 (2) gives the court the criteria or principles to follow in the division of matrimonial assets one, the customs of the community, two, the extent to contributions made by *ach party in money, property or work towards the acquisition of the assets, three; any debts owing by either party which were contracted for their joint benefit and four; the needs of the infant children if any, on the marriage and five; subject to the consideration, the court to be inclined toward equality of division. He submitted that the Respondent has never given any justifiable proof of evidence before the trial court to meet the above stated criteria in establishing his contribution on the acquisition of the matrimonial house which is owned by the Appellant in her own name. Regarding the second ground of appeal, Mr. Mkoyogo stated that the first appellate court erroneously considered exhibit XM1 in determining the division of the matrimonial property without any justifiable cause. That, the sale agreement (Exhibit XM1) has no any connection whatsoever to the contribution of the acquisition of the property. That, the first appellate court relied on the Sale Agreement which was tendered by the Respondent while it concerned the Respondent and his family affairs and arrangements. However, the District Court relied upon it in setting aside the trial court order of division and determining the contribution of the parties. On the third ground of appeal, Mr. Mkoyogo submitted that Court did not observe the principle under section 110 of the Law of Evidence Act, Cap, 6 R.E 2022 that whoever alleges must prove, that in the trial court the Respondent failed to prove on what extent he contributed to the acquisition of the matrimonial house owned by Appellant, instead he adduced exhibit XM1 which has no connection to the contribution of the acquisition of the property. He cited the case of Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 1C2 of 2018, CAT (Unreported) where the Court of Appeal observed that, The court mostly rely on evidence adduced by parties to prove the extent of contribution, furthermore it was held that extent of contribution by a party in a matrimonial proceeding is a question of evidence. With regard to the fourth ground of appeal, he contended that the court failed to adhere to the principle of sanctity of the Municipal Execjtive Director, he stated that the residential licence, exhibit XU2 was tendered by the Appellant in the trial court without any Respondent's objection, which clearly show that the house located at Kibo, Ubungo is registered in the name of the Appellant. He cited the case of Francis Yustin Kimbona (as the legal representative of the late Maria Yustin Kambona) v. Elizabeth Seme and Another, Land Case NO. 215 OF 2020 (Tanzlii) at page 5 also Salum Mateyo v. Mohamed Mateyo 1987 TLR 111 where it was held that: " The above provision of the law revealed that prima facie proof of land ownership is by registration. In our count ry in most cases registration is by letter of offer or certificate of title" He concluded by praying that the appeal by the Appellant be allowed and the decision of the 1st appellate court be quashed and set aside, the decision of the trial court be upheld and all prayers as prayed fcr in Appellant's Petition of appeal be granted. With regard to the submissions in rebuttal from the Respondent, as stated above, on the date the case was fixed for the Respondent to file his reply submissions, the Respondent did not comply with the order of the court. This court then proceeded with determination of the matter based on the appellants submissions. Despite the fact that on the initial date fixed for the delivery of the Judgement, the Respondent prayed for the cotrt to allow him to file his submissions beyond the deadline, the said praye ' was rejected by the court. Therefore, this judgement is based on the submissions and records filed by the Appellant since non filing of written submissions is as good as non-appearance. Furthermore, it is also trite law that when the matter proceeds exparze the court still has a duty of evaluating the submissions of the party which have been filed in court in an objective manner in order to reach a just dec sion. In determining this appeal, I will start by disposing the 1st, 2nd, 3rd and 4th ground of appeal together as they are all related to the issue of anal/sis of the evidence on record in relation to the division of the alleged matrimonial property. These grounds also challenged the way the first appellate court evaliated the evidence on record and reached a conclusion by setting aside the Primary court decision and awarded 50% division of matrimonial proaerty to both parties. The Appellant has contended that the equal award of division of the matrimonial property given by the District court is erroneous since there was no proof from the Respondent showing how he contributed in the purchase of the house owned by the Appellant. It is a cherished principle of law that, he who alleges must prove. It is also trite law in civil cases that the burden of proof is on the one who alleges and the standard of proof is always on the balance of probability. Me aning that a party who has a legal burden also bears the evidential burden. Reverting to the case at hand, the Appellant has submitted that the house located at Kibo, Ubungo is registered in her name and that she is the sole owner of the same. The Appellant has further contended that the Respondent contributed nothing towards the acquisition of the same. During trial before the primary court, she tendered a sale agreement (Exhibit XM1) together with a residential licence exhibit XU2 bearing her names. Similarly, on the issue of her contribution, the Appellant has subm tted that she was doing food (small) business and generating Tshs. 500,000/ each month which also enabled her to buy the house. At the outset, It is important to note that, section 56 of the Law of Marriage Act provides for equal rights in acquiring and owning properties for both husband and wife. Section 58 of the same law is permissive as it empowers the spouses to acquire properties in their separate names. However, in order to protect the interest of spouses in the properties registered on in their own names or in the name of one party, section 59 of the Law of Marriage Act provides for a requirement of consent in disposition, lease and mortgage of such properties. Furthermore, section 60 of the same Act protects the interests of spouses in all other properties acquired by one spouse in his/her own name. For clarity, sections 58, 59 and 60 of the Law of Marriage Act read as follows; Section 58; "Subject to the provisions of section 59 and to any agreement to the contrary that the parties may make, a marriage shall not operate to change the ownership of any property to which either the husband or the wife may be entitled or to prevent either the husband or the wife from acquiring, holding md disposing of any property." Furthermore, section 59 (1) of the Law of Marriage Act specifically protects a matrimonial home and it provides that:- " Where any estate or interest in the matrimonial home is owned by the husband or the wife, he or she shall not, while the marriage subsists and without the consent of the other spouse, alienate it by way of sale, gift, lease, mortgage or otherwise, and the other spouse shall be deemed to have an interest therein capable of being protected by caveat, caution or otherwise under any law for the time being in force relating to the registration of title to land or of deeds'' Section 60 of the Law of Marriage Act, R.E 2019 states as follows; Where during the subsistence of a marriage, any property is acqiired- (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse; or (b) in the names of the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal. fekj’Af’F In terms of the above provisions, it is clear that, spouses are allowed to own properties individually, any ownership is protected by law, the other spouse interest in the property is also recognized and protected d jring disposition of the same and that there are two categories of ownership of matrimonial properties; that is those which are jointly acquired bv the spouses prior or during the subsistence of their marriage and/or those which are individually/separately acquired by one spouse in his/her own name. For an asset to be termed a matrimonial property or otherwise, is a question of law and facts to be established by evidence. That, a part?' who is challenging a property owned separately by one spouse in a marriage, has a burden to establish that the property in question is a matrimonial property. Since in this appeal the Appellant is the one who alleges that she has 100% financial contribution to the said property which is registered in the Appellant's name, the law requires her to prove on her contribution by cogent evidence. See sections 110, 111 and 112 of the Law of Evdence Act, Cap. 6R.E 2019 which provide that: "110. " Whoever desires any court to give judgment as tc any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist" 111. The burden of proof in a suit: lies on that person who would fail if no evidence at all were given on either side. ” 112. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact shall He on any other person. Form the records of the trial and first appellate court, it is not in d spute that the house which is a subject of division was acquired durirg the subsistence of the marriage in the name of the Appellant. The question to be resolved is whether the house belongs to the Appellant only or w lether the Respondent is also entitled to his share of 50 percent as decided by the District Court. I have perused the records of the both lower courts and observed ttiat the parties contracted their marriage in 1989. At that time parties lived in the house of the parents of the Respondent for 15 years before moving to Dar es salaam. fefeavre' As stated by the District Court, the records show that the house was bought in November 2004 which is a month after the Respondent had sold his late father's house. However, there is no evidence to show as to when exactly the parties moved to Dar es salaam from Arusha. It is stated in the District Court's Judgement as follows; Mazingira ya shauri hili yanasadifu kuwa nyumba inayobishaniwa ilinunuliwa kuanzia Novemba 2004 ikiwa ni takribani nwezi mmoja tangu mrufani auze nyumba yao ya urithi. Japonuwa hakuna ushahidi wa tarehe rasmi ya siku ambayo wadaawa waiiondoka Arusha kuja Dar es salaam, ukomo wa miaka 15 ambayo mrufani ameshuhudia kuishi nyumbani kwa mzazi wake ni mwaka 2004. Further, I have also perused the appellant's evidence adduced during trial court where it is stated that she purchased the house through money received from the food business in which she was generating 500,000/=per month, that she started that said business when she was living with the Respondent at the house of her late father-in-law. However as stated by both the trial and first appellate court, she did not provide any evidence of income of TZS 500,000 per month in court even though the house is in her name. According to the records available, the Appellant after leaving frorr her father in law's house she thereafter moved to Dar es salaam to live with her sister-in-law and then after two months she purchased the house at Kibo, Ubungo. With regard to the documentation tendered in court, I have observed that the Sale Agreement is in her name as well as the Residential License. Apart from providing evidence of Residential License and Sale Agree nent, the said sister-in-law Sophia, whom the Appellant has claimed to have stayed with when she moved to Dar es salaam was also not paraded in court to testify on the issue of the purchase of the house. On the other hand, based on the records filed by the Appellant in court, in the trial court, the Respondent adduced evidence that the money which was used to purchase the house came from the sale of the estate eft by his late father. That after the death of his father he was appointed as the administrator of the estate of his father and sold the house of his fazher at the price TZS 100,000,000/= thereafter he received TZS 22,700,000/= as his share, and gave TZS 10,000,000/= to the Appellant to purchase the house. That the Appellant purchased the house from Salim Ally at the price of TZS 7,500,000/=. He tendered the Sale Agreement of his late father's house. However as stated by the trial and first appellate court, the Respondent did not provide any evidence to prove that he gave the money to the Appellant to buy the house at Kibo Ubungo. This was also affirmed by the first appellate court. According to the record, it is not in dispute that the house was acquired during the subsistence of the marriage. This was stated by both parties at the trial primary court. It is also not in dispute that the ownership documents are in the name of the Appellant. However, according to the Law of Marriage Act, and in marriage that alone does confer actual or sole ownership of the property to the person named in the documents. Under the Law of Marriage Act, there shall be only a rebuttable presumpticn that the said house is owned by the party having the ownership documents unless contrary evidence is provided by another party. Therefore, if the other party who does not have ownership documents brings contrary evidence on his or her contribution then the presumption changes. That under section 114 of the LMA, the court is enjoined to give effect to the criteria stated for dividing the matrimonial properties; The said section requires the court to consider the following aspects: the customs of the community, two, the extent of contributions made by each party in money, property or work towards the acquisition of the assets, three; any debts owing by either party which were contracted for their joint benefit and four; the needs of the infant children if any, on the marriage and five; subject io the consideration, the court to be inclined toward equality of division. In the case of Mohamed vs Seif 1983 TLR cited by the primary court, the court held that: Shughuli za nyumba nazo ni mchango katika upatikanaji wa chumo la ndoa. Furthermore, the trial primary court held that: Ushahidi unaonesha kwamba mdai ni dereva wa tax kama ambavyo mdaiwa pia amekuwa akijishughulisha na bieshara hivyo uwezekano wa wawili hawa kushirikiana katika upatikanaji wa mali husika ni mkubwa na ndio maana walikuwa wanaishi pamoja katika nyumba hiyo Further in the case of Nacky Esther Nyange vs Mihayo Mar jani Wilmore, the CAT held that; Kinachopaswa kuingoza Mahakama katika mgawanyo chini ya kifungu 114 ni mali husika kuwa mali ya ndoa ilipatikana kwa jitihada za pamoja za wanandoa Therefore, considering that the property was acquired during the subsistence of the marriage it is presumed to be a matrimonial property in the first place even though it is in the name of the Appellant. I agree with the trial and first appellate court that: there is a rebuttable presumption that the said property is a matrimonial property. Two, in order to establish ownership of each party, contributions from both parties have to be looked at in terms of money, property of work. Three, even though the ownership documents are in the name of the Appellant, there have been arguments both in the trial court and first appellate court that the Respondent has been working as a taxi driver and that he also contributed in the purchase of the house by injecting TZS 7,500,000 obtained from the sale of the estate of his father(his father's house) and the Appellant has conzended that she was earning TZS 500,000 from the food selling business which was used to purchase the property. However, both parties could not provide actual proof on their statements. With an exception of ownership documents tendered by the Appellant, what the court is left with is to infer from the circumstances of the matter. The records of the trial court are clear that when they got married they lived together at the Respondent's father's house whereby the Appellant at the time was also doing her business of selling bites though evidence was not provided in court of earning an income of TZS 500,000 per month. It is my position that both parties at the time did not have a matrimonial home, however they were living at the Respondent's father house. This kind of environment on the other hand enabled the Appellant to do her business and earn an income that possibly contributed to the purchase of the house, though the actual amount of income earned was not or could be established in court. Furthermore, it is also on record that the Respondent being a taxi driver was also earning some income to sustain the family and contributing to its welfare including the purchase of the house. Through his work as a taxi driver he contributed to the welfare of the family including the purchase of the house. With regard to the use of the proceeds obtained from the sale of his late father's house, to purchase the house, this court has observed that aven though the sale agreement was tendered in court for the sale of the Respondent's father house, the same does not indicate or prove that the said amount was indeed given to the Appellant and for the purchase of the house whose division is under determination. However, the only circumstantial evidence trying to point towards that is the periodicity of the sale of the house in question and the purchase of the house at Kito.But still it does not prove 50% contribution of the purchase of the house. The first appellate court stated in its Judgement as follows: Mazingira ya shauri hili yanasadifu kuwa nyumba inayobishaniwa ilinunuliwa kuanzia Novemba 2004 ikiwa ni takribani mwezi mmoja tangu mrufani auze nyumba yao ya urithi. Jape kuwa hakuna ushahidi wa tarehe rasmi ya siku ambayo wadaawa waiiondoka Arusha kuja Dar es salaam, ukomo wa miaka 15 ambayo mrufani ameshuhudia kuishi nyumbani kwa mzazi wake ni mwaka 2004. HU inaimarisha ushahidi kuwa fedha za manunuzi ya nyumba zimetokana na mauzo ya nyumba ya mirathi. Tofauti na aina nyingine za mahusiano, kwenye ndoa mara nyingi kama siyo zote, siyo rahisi pata ushahidi wa nyaraka wa makabidhiano ya fedha baina ya mume na mke. Hivyo mazingira na uzito wa ushahidi Wafaa kuegamiwa na Mahakama katika kupima mehango wa kiia daawa. Therefore, while I agree that it is difficult sometimes in relationships to establish evidence of spouse giving each money as stated by the trial court, I also do not agree that this can be taken as proof for the Respondent's purchase of the house. More proof ought to have proviced by the Respondent to connect the proceeds of the sale of his father's estate to the purchase of the house at Kibo Ubungo which is in the name of the Appellant. It is important to note that, the legislation governing divison of matrimonial assets in Tanzania is the Law of Marriage Act Cap. 29, R.E 2019 hereafter LMA. The legislation empowers the court to order division of assets acquired by the spouses during marriage through the r joint efforts under s. 114(1) of the same Act. However, the said law has not specifically defined the term matrimonial property or assets/ unlike in other jurisdictions like India, the term 'matrimonial assets' is defined under section 4 (1) (a) of the Matrimonial Property Act, Chapter 275 Revised Statutes, 1989 as hereunder: "In this Act, matrimonial assets' means the matrimonial home or homes and all other real and personal properties acquired by either or both spouses before or during their marriage..." In the case of Asile Ally Said vs Irene Redentha Emmanuel Soka © Another (Civil Appeal No. 80 of2020) [2024] TZCA 33 (8 February 2024) it was observed that; "It is now a settled law that a property acquired by a husband or wife during the subsistence of their marriage, is a matrimonial property. Irrespective of the fact that where purchased, the purchase money is provided by one spouse that property is taken to have been acquired through their joint efforts. In the case of Bi Hawa Mohamed (supra) the court having construed the provisions of s. 144 of the Law of Marriage Act, (Supra), t held inter alia as follows; (i) Since the welfare of the family is an essential component of the economic activities of a family, man or woman, it is proper to consider the contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial or family assets. (ii) The joint efforts' and work towards the acquiring of assets have to be construed as embracing the domestic 'efforts' of husband and wife." At page 45 of the judgment, the Court underscored the position that, a property acquired during marriage is matrimonial property because, even if the same is purchased and registered in the name of an individual spouse, it is taken to be a matrimonial property because it was acquired through the joint efforts of a husband and wife. The Court stated as follows; "The correct position is that husband and wife, in perfo -ming their domestic duties are to be treated as working not only for their current needs but also for their future needs, in the present case, the appellant, in looking after the matrimonial home, must be regarded as working not only for her matrimonial needs, but also for her future needs and such future has to be provided from the matrimonial or family assets jointly acquired during the marriage in keeping with the extent of her contribution. ^4^ Similarly, I share the views of the trial and appellate court that, although the house is in the name of the Appellant, it was acquired during the subsistence of the marriage. Even though both parties had to prove the extent of their contributions, they both failed to prove extent of 100 percent contribution towards the purchase of the house since the Appellant even though she has the ownership documents she failed to provide proof of income of TZS 500000 per month which contributed to the purche se of the house in full and the Respondent on his part failed to prove that he indeed gave TZS 10,0000 to the Appellant to purchase the said house. Apart from the evidence tendered in the trial court that he was also working a taxi driver and doing some wildlife activities. Much as there is no direct evidence of the Respondent giving the ApDellant TZS 10,000,000, it appears that the timing of the purchase of the house collides with the time for the sale of the Respondent's father's house as stated in the first appellate court's Judgement and could only be looked at by the court based on the weight attached to it, as I have analyzed it hereinabove considering that the Appellant is holding the ownership documents. I quote what has been argued in the first appellate court while determining the contribution of parties toward acquisition of the said property as follows:- " Mrufaniwa kwa upande mwingine ameshuhudia kufanya biashara ya chakula ambayo imekuwa ikimpatia kipato cha wastani wa Tshs 500,000/= kwa mwezi. Hakuna usfahidi kamiii wa mrufani kumkabidhi mrufaniwa kiasi cha pesif kwa ajiii ya kununua nyumba kama Hivyo kwa mrufaniwa kuthibitisha uwepo wa biashara iiiyompa kipato cha kutosha kununua nyumba inayobishaniwa." However, considering the fact that the Ownership documents are in the name of the Appellant and the Respondent has not managed to prove 100 percent contribution, by evidence on the balance of probabilities, this court then proceeds to vary the share ratio of 50 percent awarded by the trial court to 60% share for the Appellant and 40% for the Respondent. My decision is based on the fact that; the property is a matrimonial property, acquired during the subsistence of the marriage and that having a certificate evidencing ownership of property under the Law of Marriage Act is not a proof of sole ownership of the property acquired in marriage, other considerations under section 114 must be looked at. Furthermore, according to the records the Respondent was also working as a tax driver and also engaging or employed in wildlife activities as testified by the Appellant in the trial court, the Respondent made an arrangement for the family to stay at his father's house while they were preparing to acquire their own property and I have also considered the fact that both parties could not prove 100 percent acquisition of the property by failure to provide financial evidence of their income towards purchase of the property. In the upshot, deriving from the above cases, law and analysis I proceed to order as follows: a. I partly allow the appeal by setting aside the award of 50% contribution for each party to the extent analysed above b. I grant an award of division of the matrimonial property (the house located at Kibo Ubungo) at 60% share for the Appellant and 40% for the Respondent c. Valuation be conducted by an appropriate authority for the house located at Kibo-Ubungo in order to establish its actual value at a cost to be shared by both parties. Either of the parties can compensate the other party based on the share percentages ordered by the court (60% share for the Appellant and 40% for the Respondent) d. The option for selling the house located at Kibo Ubungo shall be a matter of last resort and if that is opted then parties should divide the proceeds based on the order of the court (60% Appellant and - 40% Respondent) e. Each party shall bear its own costs The right of appeal is fully explained Dated and delivered at Temeke, this 29th day of November, 2024. S. D. MWAIPOPO JUDGE 29/11/2024