KIDUNDA AHMED MANGIRI Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA CIVIL APPEAL NO. 37 OF 2023 (Arising from the decision of Kondoa District Court in Civil Appeal No. 1 of 2023 dated 16/06/2023, Original Matrimonial Cause No. 12 of 2022 before Kondoa Urban Primary Court) KIDUNDA AHMED MANGIRI……….………………………………..…………APPELLANT Versus RADHIA SALUM SAID……………………….……….………………………RESPONDENT JUDGEMENT Date of last order: 16th July, 2024. Date of Judgment: 02nd August, 2024. E.E. KAKOLAKI, J. The respondent herein before the Kondoa Urban Primary Court in Matrimonial Cause No. 12 of 2020, successfully petitioned for divorce decree against the appellant and division of matrimonial assets jointly acquired by them. It was the trial court’s order among other orders in its decision dated 12/12/2022 that, two houses located at Masange village in the same plot, one of which has one bedroom and sitting room and the other one built in a round shape are divided to respondent and appellant at the ratio of 25% to 75% respectively. In the alternative any party who wishes to become a sole owner of the said houses was ordered to compensate the other party in accordance with the established value of the properties and the ratio as described by the trial Court. Further to that, personal properties claimed by the respondent were ordered to belong to her while appellant ordered to pay the respondent 1 Tshs. 680,000 as part of her unpaid dowry. Disgruntled with the distribution of two houses to the respondent at the ration described above, the appellant unsuccessfully appealed to the District Court of Kondoa vide Civil Appeal No. 1 of 2023, as his appeal was dismissed and the trial court’s findings upheld after the appellate court was satisfied that, the trial court properly considered respondent’s contribution towards acquisition of the said properties and fairly divided them to the parties. Not amused the appellant has preferred the present appeal fronting three grounds of appeal going thus: 1. That, the 1st Appellate Court erred in law and fact by proceeding with distribution of matrimonial properties without taking into consideration properties which was brought into attention of the court by the appellant and which was not determined and subjected to the division. 2. That, the 1st Appellate Court erred in law and fact because the Respondent failed to prove the properties that were acquired jointly and that, there was the first wife who participated on such contribution before marriage of the Respondent. 3. That, the 1st Appellate Court erred in law and fact by ordering that, the house situated at Masange to be divided in corresponding ratio of seventy five for appellant and twenty five percent for the Respondent (75:25), while in essence the Respondent’s contribution was not shown. Hearing of the appeal proceeded by way of written submission and despite of being unrepresented both parties complied with the scheduled orders for filing 2 of submission. Having visited both parties submissions in respect of three grounds of appeal I find them boiling down in one ground of appeal going thus, the appellate court was in error to uphold the trial court’s decision that the two houses at Masange village formed part of the matrimonial properties and were fairly divided to the appellant and respondent at the ratio of 75% to 25% respectively without respondent’s proof of her contribution toward their acquisition since there was contribution of his first wife. The issue for determination by this court therefore is whether the appellate court was justified to so find and dismiss the appellant’s appeal. In his submission in support of the three grounds of appeal while appreciating Court’s powers under section 114(1) of the Law of Marriage Act, [Cap. 29 R.E 2019] (the LMA) of granting decree of divorce or separation to parties and orders for division or sale and division of proceeds of the properties acquired by joint efforts of parties, the appellant argued that, the two houses at Masange village were acquired by him in 2017 before contracting marriage with the respondent on 13/05/2018. He expounded that, after purchasing the old building in that plot at Masange the same was demolished and two houses built therein in 2019. According to him the trial court ought to have considered contribution of his first wife towards acquisition of the said properties, whom he married under Islamic rites in 1986 as the respondent failed to prove her contribution which is a condition precedent for her to be entitled to division of jointly acquired assets as held in the case of Yesse Mrisho Vs. Sania 3 Abdul, Civil Appeal No. 147 of 2016 [2019] TZCA 414 (7 November, 2019) Tanzlii. He argued that, since the respondent failed to account for her contribution towards improvement of the said two houses, the case of Bi. Haa Mohamed Vs. Ally Seif (1983) TLR 32 applied by the lower courts to determine her contribution in acquisition of the said properties was inapplicable under the circumstances. Thus, division of the said properties at the ration of 75% to 25% to the appellant and respondent respectively by the trial court was unjustified hence the appellate court ought to have appreciated that and allow his appeal before it, the appellant insisted. With the above submission he urged this Court to allow the appeal with costs by quashing and setting aside the appellate court’s decision. In her reply submission the respondent countered appellant’s submission stating that, the appellate court was justified to uphold trial court’s decision that found the respondent had her contribution towards acquisition of the said properties when performed domestic works including cleaning of appellant’s clothes and other works, the works which are recognized under section 114(2)(b) of LMA and given much more postulation in the case of Bi. Hawa Mohamed (supra) and Bibie Maulid Vs. Mohamed Ibrahim (1989) TLR 162. As to the contention that, both trial court and appellate court ought to have considered appellant first wife’s contribution towards acquisition of the said properties she retorted that, this Court is not entitled to consider that issue as it was not raised before and determined by the trial court since 4 appellate court cannot consider matters not taken or pleaded in the trial court instead raised during appeal. She relied on the decisions of Juma Vs. Manager PBZ Ltd and Others [2004] 1EA 62, Richard Majenga Vs. Spencioza Sylvester, Civil Appeal No. 208 of 2008 [2020] TZCA 227 (14 May 2020] Tanzlii and Gallus Kataya Vs. R, Criminal Appeal No. 196 of 2015 (CAT-unreported). The above notwithstanding she raised her concern contending that, both trial and appellate court were in error not to find that she had contributed also to acquisition of the house at Kondoa town in which the appellant claimed not to be part of matrimonial assets as the same was built two months only before the two shifted in and continued to live therein until when they officially contracted marriage in 2018. On what was divided to her she said the spouse’s contribution towards acquisition of matrimonial assets is also counted from his/her performance of domestic works during existence of marriage though not at 50% ratio. According to her since the evidence in record discloses that, she discharged her domestic works properly during existence of their marriage with the appellant which was dissolved in 2022, then the appellate court was correct to find that she was entitled to jointly acquired properties hence prayed the Court to dismiss this appeal for want of merit. In rejoinder submission the appellant argued that, the respondent’s contribution towards acquisition of the two houses at Masange was neither in monetary value nor in building materials. As to her contribution through 5 domestic works he countered that, there was no proof as after contracting marriage with the respondent, they were living separately since the appellant was staying at Masange conducting farming activities while the respondent remained at Kondoa town conduction catering services business for earning and supporting her two children sired to her former husband. As to the house of Kondoa he resisted the submission by the respondent arguing that, that issue was decided on conclusively by the trial court as the respondent never appealed against, hence estopped from re-raising it at this stage. He therefore prayed the Court to allow the appeal with costs. I have dispassionately considered the contending submission by the parties and keenly revisited the evidence on record as well as the impugned judgment. As alluded to above, the issue pending for determination by the Court is whether the appellant court was justified in upholding trial court’s decision that, the two houses at Masange village formed part of the matrimonial properties and whether were fairly divided to the appellant and respondent at the ratio of 75% to 25% respectively. The appellant says the appellant Court was not justified in its decision as the said two houses did not form part of matrimonial properties between the two parties for being acquired by the appellant and his first wife, thus the decision to divide them to the respondent was made without proof of her contribution towards their acquisition. On the other hand the respondent argues that, it was justified as the properties were acquired during existence of their marriage and that, her 6 contribution is counted from the domestic works she performed during that period. From the lower court record there is no dispute that, this is a second appeal from the two concurrent decisions of the subordinate courts. The law is settled that, the jurisdiction of the 2nd appellate Court to interfere with findings of facts of the Courts below is restricted to unreasonableness of the decision, misapprehension of evidence or a violation of a principle of law. See the case of Salum Bugu Vs. Mariam Kibwana, Civil Appeal No. 29 of 1992, Iddi Shabani @ Amasi Vs. R, Criminal Appeal No. 111 of 2006, Mwigulu Madata and Another Vs. R, Criminal Appeal No. 257 of 2011 and Haruna Bernado and Another Vs. R, Criminal appeal No. 13 of 2013 (all CAT-unreported). Having travelled through the impugned decision of the District Court of Kondoa, I am not convince that the same suffers any of the three factors above mentions for this Court to interfere with it. I so view as in establishing whether the two houses divided to the parties were jointly acquired, the 1st appellant court properly apprehended and considered the evidence on record. At page 5 of its decision the appellate court considered the evidence as adduced by the respondent that the two houses were constructed in 2019 when parties had already contracted their marriage. This fact in my considered view is corroborated by the appellant’s own version when some questions of clarification were put to him by the trial court at page 27 of the trial court proceedings and admitted that, the said houses were 7 constructed in 2019. As the same were built during existence of their marriage with the respondent, I find it was proper for the appellant court to hold were falling under jointly acquired properties by the parties as correctly found by the trial court too. As to the extent of respondent’s contribution towards acquisition of the said properties, I also find the principle of law as stated under section 114(2)(b) of the LMA was properly followed by both trial court and 1st appellate court. It is a principle of law under section 114(2)(b) of LMA as also adumbrated in the case of Bi. Hawa Mohamed (supra) that, in exercising its power of division of assets jointly acquired by the couple in the marriage as conferred under section 114(1) of LMA regard shall be paid to the extent of contributions made by each party either in monetary form, property or work towards acquisition of the said properties. Section 114(2)(b) of LMA reads: (2) in exercising the power conferred by subsection (1), the Court shall have regard:- (a) to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets. (Emphasis supplied) Applying the above cited provisions of the law this Court in the case of Pulcheria Pundugu Vs. Samwel Huma Pundugu 1985 TLR 7 (HC) pronounced itself when stated that, the principle underlying division of matrimonial property is one of compensation, it does not make any difference whether what is being compensated is direct monetary contribution or 8 domestic services. Since division of matrimonial property is of compensatory nature Court’s duty therefore is to look into extent of contribution of each party in monetary terms, properties or work towards acquisition of the said properties in which the Court of Appeal in the case of Bi. Hawa Mohamed (supra) construed joint efforts or work to include efforts or domestic works of the husband and wife. The 1st appellate Court like the trial court in considering the respondent’s extent of contribution towards acquisition of the two disputed houses I note took in consideration appellant’s own testimony that the respondent honestly performed her domestic works including cooking for him and cleaning his clothes. With that consideration based on living principles of the law this Court runs out of justification to interfere with the appellate court’s findings. Since it is established that the respondent contributed in acquisition of matrimonial properties, I find the appellate court was justified in its findings. I also find the ratio of 75% by 25% to the appellant and respondent respectively was justified for being backed by the evidence on record on the respondent’s extent of contribution. I so view as respondent’s contribution through domestic works could not have earned her more than 25% of the jointly acquired matrimonial properties for failure to prove of her monetary or properties contribution. As to appellant’s contention that, the appellate court ought to have appreciated his first wife’s contribution I find the argument is brought as an afterthought since it never featured before and determined by either the trial 9 court or appellate court. It is settled that, Court cannot deal with issues not raised before the trial court or the first appellate court. On that principle the Court of Appeal in the case of Farida and Another Vs. Domina Kagaruki, Civil Appeal No. 136 of 2006 (CAT Unreported), held that:- "It is the general principle that the appellate court cannot consider or deal with issues that were not canvassed, pleaded and not raised at the lower court. In this matter since the issue of appellant’s first wife contribution is raised for the first time, I find this Court is restricted by the law from entertain the same. With that finding, I hold the issue raised above is answered in affirmative in that, the appellate court was justified in its decision to dismiss the appeal by the appellant as the said two houses were properly divided to the respondent. In view of the above, I find this appeal in unmeritorious hence proceed to dismiss it in its entirety. I order each party to bear own costs. Order accordingly. Dated at Dodoma this 02nd of August, 2024. E. E. KAKOLAKI JUGDE 02/08/2024. 10 Court: The Judgment has been delivered at Dodoma today on 02nd day of August, 2024, in the presence of both Appellant and Respondent in persons and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 02/08/2024. 11