khamisi mhina mgunya hamis mhinahamisi kiimbikohamis seif kassim hamis mhina mngodo vs salma ali jiti 2020 tzhc 3481 30 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 211 OF 2019 (Arising from the judgement o f the District Court o f Temeke at Temeke in Matrimonial Cause No. 16 o f 2018 delivered on 8th July 2019) Khamisi Mhina Mgunya@ Hamis Mhina@Hamisi Kiimbiko@Hamis Seif Kassim @ Hamis Mhina Mngodo..........................................................Appellant VERSUS Salma Ali J it i.................. ..................Respondent JUDGEMENT Date o f last order: 14 .05.2020 Date o f Judgement: 30.10.2020 EBRAHIM, 3.: Having been dissatisfied with the decision of the Temeke District Court at District Court, the Appellant has lodged the instant appeal raising seven grounds of appeal as follows: 1. That, the trial magistrate erred both in law and facts for holding that Hamis Mhina, Hamis Kiimbiko and Hamis Mhina Mgunya and Hamis Seif Kassim without evidence to that effect. 2. That, the trial magistrate erred both in law and facts for failure to include the house/property situated at Mbagala Kilungule, Nzasa into the list of the matrimonial properties and divide the same despite the fact that there was evidence to the effect and even the respondent pleaded the same. 3. That, the trial magistrate erred both in law and facts by directing parties to refer matter to the Land Disputes Courts to determine land ownership on the house situated at Mbagala Kilungule - Nzasa while there was evidence on the records showing the property entitled to be into the list of matrimonial properties. 4. That, the trial magistrate erred both in law and facts by including some properties into the list of matrimonial properties such as Farms of two Acres located at Mtaka- Tanga, matrimonial houses situated at Mbagala Kilungule as listed by the respondent into the list of the matrimonial properties and divide the same without proof on the balance of probability to the existence and ownership of that properties. 5. That, the trial magistrate erred both in law and facts for failure to include properties situated at Kindulanga in Tanga Region and house at Mdote in Muheza District, Tanga Region into the list of matrimonial properties jointly acquired between the parties. 6. That, the trial magistrate erred both in law and facts to determine land disputes which arose between parties during trial. 7. That, the trial court/magistrate erred in law and facts for failing to consider and evaluate properly which is matrimonial properties and which is not. On the other hand, the Respondent herein also filed petition for cross­ appeal on part of the decision raising the following grounds: 1. That, the trial magistrate erred in law and facts by failing to decide on the issue of the house in which the respondent reside situated at Mbagala Kilungule, "Nzasa A" despite the fact that there was evidence that the plot was bought for her and house was built for her. 2. That, the trial magistrate erred in law and facts by deciding that the five acres farm located at Kindulanga, Muheza Tanga was matrimonial property. 3 3. That, the trial court erred in law and facts for not granting maintenance cost from the date of neglect to the date of divorce. The appeal and cross appeal were argued by way of written submission. The Appellant/Respondent was represented by advocate Ludovick Nickson and the Respondent/Appellant was represented by advocate Andindilile. The backgrounds of the matter go to the matrimonial proceedings initiated by Salma Ali Jiti in Matrimonial Cause No. 16 of 2018 praying for the court to grant a decree for divorce, division of matrimonial properties and other reliefs. The basis of their dispute according to the Respondent is that in 2017 after the Appellant herein contracted HIV he forced to have sexual intercourse with her without using protectives i.e. condom. It is not disputed that the couple solemnized their Islamic marriage in 2007. On the other hand, the Appellant claimed that the Respondent has not been faithfully and at one time she went to live in Tanga for six months with another man. In contest for the division of matrimonial properties, both parties called their witnesses. Upon hearing the testimonies from both parties and their witnesses, the trial court issued a decree for divorce and accordingly issued the following orders: 1. The house at Mbagala of which the Respondent herein is living should be subject of a land matter at the Land and Housing Tribunal 2. The house where the Appellant herein is living should be divided at the ratio of 70% to the Appellant and 30% to the Respondent. 3. The unfinished house be equally divided. 4. The Farm at Mtaka Tanga be equally divided. 5. The Farm situated at Kindugala be divided at the ratio of 70% to the Respondent and 30% to the Appellant. 6. The house situated at Mdote Tanga is the sole property of the Respondent. The distribution has aggrieved both parties hence the instant appeal and cross appeal. Both parties submitted for and against the petition of appeal, cross appeal and the rejoinder thereof. However, in determiningthis matter I shall not recapitulate their submission but refer to them in the course of addressing substantive issues. Before I proceed, I wish to comment on the purported preliminary objection raised by advocate Ludovick Nickson on the mixed citation of parties. Had advocate Ludovick Nickson pushed himself a bit and visited the proceedings on record, he would have remembered that while he was in attendance in court on 27.11.2019, advocate Andindilile prayed to make amendment on the citation of parties where the court accordingly rectified the same and in places where the Appellant was supposed to be Respondent and it was so adopted by the court. His objection is therefore unmeritorious. As it is obviously observed, this is the first appeal. Therefore, this court has an obligation to revisit the evidence on record and have its own findings of facts if any and decision thereon while cautious of the fact that it is the trial court that had an opportunity to observe the witnesses. This position was stated in the case of Japan International Cooperation Agency (JICA) V Khaki Complex Limited, Civil Appeal No 107 of 2004(unreported). Before embarking on a journey of determining the grounds of appeal and cross appeal, let me first revisit the evidence on record with clear with that it was the trial court that had an advantage of observing the demeanour of witnesses in giving their testimonies. The Respondent herein testified as PW1. She told the trial court that they got married in year 2007 (exhibit PI) and the name of her husband, the 6 Appellant is Hamis Seif Kassim. She said she did not know the name of Hamis Mgunya but she knows the name Hamis Mhina as the name of the Appellant's uncle and that appellant father's name is Seif Kassim Kiimbiko and the last name of Hamis Mhina is Hamis Mhina Mngodo. She testified further that when they met, the Appellant had one Plot at Mbagala Kilungule of which they later built it together. She said they also bought a shamba of 2 acres at Mtaka, Muheza, Tanga in 2008 from Iddi Kidumu for Tshs. 300,000/-. It was the Appellant who went to by that shamba and they used to plant maize and oranges. Later they acquired a house together at Mbagala Kilungule which the Appellant bought for her as a gift after realising that he has been infected with HIV. She tendered exhibit III as "mkataba wa kuuza kiwanja" of 21.07.2009. It is the Respondent who is currently living in the said house. She also listed another unfinished house bought in the name of Hamis Kiimbiko situated at Mbagala Kilungule which they acquired the plot in 2014. Responding to cross examination questions, the Respondent stated that she has one house at Muheza Tanga which she bought a plot year 2000 and a Shamba at Mkuza area which she acquired year 2004 before getting married to the Appellant and she used the money she obtained as rent from her house at Muheza to develop her shamba. PW2, Idd Kidumo testified to have sold his shamba to Hamis Mngodo for Tshs.300,000/- located at Mtanga area. PW3, Mbaraka Ramadhani Matimbwa tesfied to have sold the plot to the Appellant who was accompanied with the Respondent on 21.07.2009. Responding to cross examination questions he said he sold the plot to the Respondent for Tshs. 1,500,000/- and he also said that he sold the Plot to the Appellant once. He also said he did not remember to have entered another contract of sale on the plot with the Respondent. PW4, Arian Amandus Mbungani testified to have witnessed the sale agreement between the Respondent and the PW3 on 21.07.2009. He said on that particular day he did not see the Appellant. PW5, Farida Omary, also testified to have witnessed the sale of the plot between PW3 and the Respondent. The Appellant testified as DW1. He was recorded as Hamis Seif Kassim/Hamis Mhina Mgunya. He testified that his name is Hamis Seif Kassim and he is also known as Hamis Mhina Mgunya as the name he used from Primary School to secondary school. He admitted to be using the names of Hamis Mhina Mgunya, and Hamis Seif Kassim. He denied knowing the name Hamis Mhina and Hamis Kiimbiko. He said also that Hamis Mhina Mngodo is the name of his cousin. He denied that the 8 properties bought in the names of Hamis Kiimbiko, Hamis Mhina and Hamis Mngodo as not his properties. Thus, the shamba situated at Mtaka appeared by the name of Hamis Mhina Mngodo is not his but his cousin's. He tendered sale agreement of 27.09.2008 (EXD 1) to prove the same. He listed the properties acquired in the subsistence of their marriage to be one house situated at Mbagala Kilungule, another house situated at Muheza Tanga and one shamba situated at Mkuzi Kindulanga within Muheza District, Tanga. He denied to have bought the said plot in Mbagala Kilungule for the Respondent but rather he used his salary to build the said house. He tendered "marekebisho ya taarifa za mmiliki" as EXD II. As for the other house in Mbagala Kilungule it was his brother's called Mohamed Ally Muhando of which he used to supervise. He testified also that through his salary he built two houses one at Mbagala Kilungule and another one at Mdote Muheza though the Plot was bought by the Respondent. He said they also bought a 5 acres shamba in 2011 at Mkuzi Muheza Tanga which the Respondent claims that she bought the same in 2004. He also said that he was taking care of the Respondent and paid the bills. Responding to cross examination questions, he stated that the house he is living in at Mbagala Kilungule belongs to Mohamed Mhando, his 9 brother and he is paying rent of Tshs. 100,000/- per month. He denied the name Hamis Kiimbiko Mngodo appearing in his reply as not his. Responding to question concerning exhibit EXDII he admitted to have not brought the sale agreement that he bought the same from Mtibwa Mbaraka and that he started the process of change of name when the conflict between them started. As for the house in Muheza he said that the plot was bought by the Respondent but he finished building it in 2016 although he had no evidence to prove that he bought material. He also responded that the Respondent changed the year he bought the shamba at Mkuzi, Muheza from 2011 to 2004 and that the names on both the shamba and a house in Muheza appear in the name of the Respondent. As for his brother's house the same is located at Mbagala Kilungule, Nzasa Area. DW2, Mohamed Ally Mhando told the court that the Appellant is his cousin. He testified further that he has two houses one situated at Kilungule Mwisho which the Appellant is renting; and another one at Kilungule kwa Mangi which he bought in 2015 for Tshs.2,000,000/-. He said that it was the Appellant who was supervising the house during its construction. Responding to cross examination questions he said that the Appellant is his biological young brother- "Tumezaliwa tumbo moja". He said that the house at Mangi Nzasa is unfinished which he bought from Rehema Omary in 2015. He said he did not know if the Respondent was known in the name of Hamis Seif Kassim. He did not remember the exact year he bought the plot, or his neighbours nor his ten-cell leader. He said he was living in the said house between 2008-2009 and the Appellant rented the house to live with his wife since 2010. DW3, Hamis Mhina Mngodo testified to be the owner of the shamba situated at Kumbamtoni Village within Muheza District in Tanga Region. He said he bought the shamba from Mzee Idd for Tshs. 300,000/- but did not plant anything for a long time until the Appellant planted maize and he planted oranges. Asked about the identity card to prove his identity, he did not have any and he said he handed the sale agreement to the Appellant. He said Appellant brothers are Mhando and Mohamed Ally Mhando. Having gone through the rival submissions of both parties on both appeal and cross appeal, I am of the views that the bone of contentions are on the names of Appellant in so far as the ownership of the properties are concerned; which properties; are matrimonial properties and which belong solely to the parties. I shall begin with the issue of names. The Appellant testified that his name is Hamis Seif Kassim and he is also known as Hamis Mhina Mgunya. He said also that Hamis Mhina Mngodo is the name of his cousin. He denied that the properties bought in the names of Hamis Kiimbiko, Hamis Mhina and Hamis Mngodo as his properties. Thus, the shamba situated at Mtaka appeared by the name of Hamis Mhina Mngodo is not his but his cousin's. However, on the other hand, the Respondent testified that Appellant father's name is Seif Kassim Kiimbiko. More so when DW2, Mohamed Ally Mhando was adducing evidence in court he said that the Appellant is his cousin. Responding to cross examination question, he said that the Appellant is his younger brother (baba mmoja mama mmoja). This fact was confirmed by DW3 when he said that Appellant blood brothers are Mhando and Mohamed Ally Mhando. DW3 testified further that their grandfather's name is Mngodo. More so when filing the reply to the amended petition for divorce, the Appellant used the names Khamisi MuhinaMgunya@ Hamis Mhina @ Hamis Kiimbiko @ Hamis Seif Kassim @ Hamis Mhina Mngodo. At no point did the Appellant opposed at preliminary stage that those were not his names or aliases. Surely, the Appellant called DW3 to disapprove the fact that, he (the Appellant) was not Hamis Mhina Mngodo but Hamis Seif Kassim and Hamis Mhina Mgunya. As the law requires, since the Appellant wished the court to believe that he is not Hamis Mhina Mngodo, then the burden of proof shifts and lies on him in terms of section 112 of the Law of Evidence Act, Cap 6 RE 2019 which reads as follows: "112. The burden o f proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by iaw that the proof o f that fact shall lie on any other person" That being the position therefore, DW3 was duty bound to bring the documents to prove that he was indeed Hamis Mhina Mngodo and he was also supposed to bring proof that he owns the disputed shamba. To the contrary all he said were mere words which could not be substantiated. As for DW2 at one time he said he was DWl's cousin and another time he is his blood brother. DW2 said that he bought the plot from one Rehema Omary in 2015. There was no such sale agreement tendered for such amount showing that Mohamed Ally Mhando bought a Plot for Tshs. 2,000,000/- in 2015 from Rehema Omary. What surprised the court more is the affirmation by DW2 that he does not remember when he bought the said land, he does not know his neighbour nor his ten-cell leader. Then how did he buy the said plot without the involvement of local leaders. All in 13 all, the testimonies of DW2 and DW3 are full of contradictions which goes to the root of the matter and I accordingly discard them. From that background, it is clear that all the names appearing in the citation of this case are used interchangeably by the Appellant. Both the Appellant and the Respondent do not dispute that when they met, the Appellant had a plot at Mbagala Kilungule of which they developed after they got married. The Respondent stated that she also contributed to the same as she was working as "Mganga wa Jadi". The trial court considered that the development was done during the subsistence of their marriage and he accordingly divided the same to the ratio of 70% to the Appellant and 30% to the Respondent in terms of section 114(3) read together with subsection (2)(b) of the Law of Marriage Act, Cap 29. Nevertheless, there is enough evidence to show that, the Appellant being the one who had steady job, built the said house as the Respondent could not even prove how much she would be getting either monthly, or quarterly or daily etc. Therefore, outrightly, I reverse the decision of the trial court and order that the Appellant should have 100% shares of the said house. Indisputably also is the fact that the Respondent also bought a house at Mdote Tanga before she got married to the Appellant. As rightly observed by the trial court, the Appellant failed to substantiate his contribution to the development of the said house. Accordingly, I leave the decision of the trial court of leaving the Respondent with 100% share undisturbed in terms of section 58 of the Law of Marriage Act. There comes the issue of a house situated at Mbagala Kilungule "Nzasa A" of which the Respondent lives therein. The Respondent claimed that the Appellant bought that house for her as a gift. The Appellant made effort to submit exhibit EXD II in a bid to show that he tried to change ownership. He even admitted that he wanted to change the ownership after hell broke loose. He could not even bring another sale agreement to contradict EXD III. This shows that had the house been simply a matrimonial house, the Appellant would not go to all that length to try to change the ownership in un procedural manner. Further, section 61 of the Law of Marriage Act, is clear that during the subsistence of marriage where either spouse gives a property to the other, there is rebuttable presumption that such property belongs solely to the donee. In that case therefore, while there is enough evidence to show that the Appellant bought the house for the Respondent, it was not correct for the trial magistrate to order the matter be determined on the issue of ownership. I accordingly order that the Respondent shall have 100% share of the house at Mbagala, Kilungule, Nzasa A currently occupied by the Respondent herein. As for the house located at Kilungule kwa Mangi, DW2 failed miserably to prove that it is his house. More so, this court has already ruled out that there is no evidence of the name appearing on the sale agreement of the said house to suggest that it is does not have the name of the Appellant. However, as stated above, the Appellant is the bread winner and has a huge contribution to acquisition of the family assets. Accordingly, I divide the said house to the share of 80% to the Appellant and 20% to the Respondent. The same to be valued by the Government valuer and each party is at liberty to buy the other. In case of one party opting to sell his/her share, the first right of refusal shall be given to the other party. Again as for the farm at Mtaka , Tanga which DW3 claimed that it was his but failed to prove that he is indeed Hamis Mhina Mngodo; whilst the court 16 ruled that the Appellant is indeed Hamis Mhina Mngodo; I also leave the decision of the trial court undisturbed that the same be equally shared. Counsel for the Respondent submitted that the Appellant/Respondent failed to prove that the Respondent/Appellant changed the year of sale from 2011 to 2004. First of all, how would the Counsel for the Respondent speak of the proof whilst the Respondent herself did not provide any document in court to show that indeed she bought the said farm in 2004? She did not even tell the court how much she bought the farm for and from who? Or how she acquired the said farm? The Appellant told the court that the shamba at Mkuza Kindulanga was acquired during the subsistence of their marriage and he developed the same as he was the one working. He said the same was acquired in 2011. Indeed, the Respondent being the one who want the court to believe that she bought the farm in 2004, she had more to prove than mere words. Accordingly, I reverse the decision of the trial court and order that the same be equally shared between parties. As for the payment of maintenance allowance, the Respondent has not managed to prove as to when exactly the Appellant stopped/failed to maintain her. I accordingly dismiss this ground of cross appeal. 17 From the above findings, the grounds of appeal and cross appeal succeed to the extent explained above as follows: 1. The Appellant herein shall have 100% share of the house at situated at Mbagala Kilungule of which he is currently living in. 2. The Respondent shall have 100% of the house situated at Mbagala Kilungule, Nzasa A of which she is currently living in. 3. The Respondent shall have 100% share of the house at Mdote Tanga as she acquired the same before being married to the Appellant. 4. The unfinished house located at Mbagala, Kilungule kwa Mangi is divided to the ratio of 80% share to the Appellant and 20% to the Respondent. The same should be valued by Government valuer. Should one party decide the sale his/her share, the first right of refusal shall be availed to the other party. 5. The Farm at Mtaka, Muheza Tanga shall be equally shared between parties. 6. The Farm at Kindugala Muheza shall also be shared equally between parties. Given the relationship of parties that it is a matrimonial issue, I give no order as to costs. Each party to bear its own. 30.10.2020 18