20190725 TZHC Dar es Salaam

IN THE UNITED REPUBLIC OF TANZANIA

THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM CIVIL APPEAL NO. 200 OF 2017 · (Originating from Matrimonial Cause No. 21 of 2014 in the District Court of /Iola at Samora Avenue) LEILA HASSAN MAVERE -------------------------------------- APPELLANT

VERSUS HARUNA MAVERE ------------------------------------------ RESPONDENT

JUDGMENT MUTUNGI, J. The appellant dully represented by Miss Esther Mosha, - learned Advocate hqs raised five grounds of appeal against the decision in Matrimonial Cause No. 21 of 2014 from the District Court of llala at Samora. The same are as hereunder: - (1) That the honourable Court erred in law and fact for declaring that the house situated at Kondoa was not acquired by joint efforts of the appellant and further that it was not subject of matrimonial property. l - - (2)- That-, the-honourabl·e Court erred in- law and facts for granting the house. at Kondoa to the respondent without proof of exclusive ownership of the respondent towards acquisition. (3) The honourable court erred in law and facts for failure to distribute some of the matrimonial properties, to wit, a hardware shop at Kariakoo, a plot at Kichangani llala District and motor vehicle and to the contrary ordered to be under the direct control of the respondent. (4) The honourable Court erred in law and facts for granting the matrimonial home to the respondent, to wit, two houses in one compound located at Kichangani Ukonga Plot No. 2061 Block C within llala District - Dar es Salaam at the exclusive efforts of the appellant. (5) That the trial Magistrate Court erred in law and facts for granting the appellant one house located_ at Kichangani Ukonga Dar es Salaam which is of no 2 .. value compared to the efforts

and contributions -- ~ - - - - - - - -made by-the -appellant in its accfuisition. In view thereof the appellant prayed for the following reliefs; (1) Judgment and decree of the trial Court on the issue of the division of matrimonial properties be quashed and set aside and for an order of division of matrimonial properties according to each party's contribution. (2) Matrimonial home, to wit, two houses located in one Plot No. 2061, Block C Ukonga, Dar es Salaam be granted to the appellant. (3) Division of other matrimonial properties according to each parties' contribution, to wit, hardware shop at Kariakoo and a Plot at Kichangani and a motor vehicle. (4) Costs of this appeal to be provided for. (5) Any other relief(s) this honourable Court deems fit to grant. 3 t' In support of the appeal as regards the first and second grounds of appeal, Miss Mushi submitted that it is the duty of the one asserting that had contributed to the acquisition of the matrimonial properties to prove that the same did happen. This is why the appellant submits that all the time the couple were living at Kondoa then Dar es Salaam, she was· working as a teacher and latter a shopkeeper. It was through her salary and house chores that she contributed in the family welfare. Further, when they both shifted to Dar es Salaam they together fought hard and acquired matrimonial properties including houses at

Ukonga Kichangani - Ukonga, a shop at Kariakoo and motor vehicles. It was thus necessary and prudent that the District Court should have distributed the properties according to their efforts. As far as the third and fourth grounds are concerned the counsel submitted, the Court did not consider the extent of contribution of each before dividing the properties. It was thus wrong to give the less valued small house at Kichangani to the appellant and leave the two big ones built in one Plot at Ukonga. The counsel further narrated that, the small house was subject to a loan taken by the respondent from the Access Bank. The remaining two houses located on Plot 4 No. 216 Block C - Ukonga are not free of encumbrances. She ·- explained there is a pending dispute with the Standard Chartered Bank. In support of her submission the learned Counsel called upon the Court to consider the principle found in the case of REGINA LUTANDUKA V. PAULO JOSEPH, MATRIMONIAL APPEAL NO. 5/2012 (UNREPORTED). In response there to, the respondent dully represented by Mrs. William, learned Advocate submitted that; they are in agreement that the appellant had a salary but failed to show or demonstrate her direct contribution in the properties that were acquired during the subsistence of their marriage. It was Mrs. William contention that, the appellant can not come out and say that she got nothing. The

appellant was given a house at Kichangani and the respondent was ordered to pay maintenance costs of Tsh. 100,000/= to the issue of marriage. The house at Ukonga on Plot No. 20 Block C is subject of a case pending before Hon. Masabo, J. on a claim by Standard Chartered Bank and this one was given to the respondent. In conclusion Mrs. William averred, the lower court was very fair in the way the matrimonial properties were divided. 5 I now turn to the grounds filed which I will deal with generally. - - - - -- ---- ·- .. -- - - -- The crucial grievance that has been raised by the appellant is the division of matrimonial properties that was done by the trial Court. The appellant has bitterly contested the said division. As correctly noted by the trial Magistrate, a Court derives powers of division of matrimonial assets under the auspicious of the Law of Marriage Act, Cap. 29 R.E 2002. The underlying section to this effect is Section 114 ( 1) of the Act. For the sake of reference, the same reads: - "the Court shall have power, when granting or subsequent to the grant of a decree or separation or divorce to order the division between the parties of any assets acquired by then during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale". The catch word in this section is joint efforts. It was thus

upon the appellant to satisfy the Court that the house at Kondoa was acquired through joint efforts. It is in evidence that the two were married in 1994 and blessed with two issues of marriage. They are lgram Haruna aged 18 years and Reina 6 Haruna 8 years old. The appellant did demonstrate to the court that she was a teacher hence earned a salary which contributed to the family upkeep. It was through this income that they were able to build the house at Kondoa together with the respondent. They later moved to Dar es Salaam, this time around she worked in their shop at Kariakoo from 2003 to 2009. It was during this time that they acquired two houses in one compound at Kichangani Ukonga on Plot No. 2061 Block C and a house at Kichangani Ukonga area. These are the very assets which the appellant feels that the trial Court did not honour her contribution therein. There is clear evidence which was never disputed by the appellant that the Plot at Kondoa was bought in 1991 and a house built thereon in 1992. For any stretch of imagination, the house at Kondoa was acquired and built before the two had contracted their marriage. It was hence upon the petitioner to prove that she significantly improved the said house while living with her husband. I painstakingly perused through the proceedings of the trial Court but found no such proof. The only conclusion that can be made is that,

the house at Kondoa was the respondent's personal property 7 - which was not subject of division. The appellant can thus lay no claim on the same. Moving on to the two houses located on Plot No. 2061 Block C, Ukonga - Dar es Salaam, these had no dispute at all. The two. unanimously agreed that the same formed part of their matrimonial assets. In dividing the same, the Court in its wisdom found, the houses would be a burden on the appellant. The court was moved to make this decision following the petitioner's own evidence that, the property in issue is subject of a case before the High Court (Dar es Salaam Registry). The case is subject of a loan taken by the respondent (a businessman) which was advanced to him by the Standard Chartered Bank and the houses sold to one Mohamed Ally. The other property at Kichangani Ukonga which too was found to be matrimonial property jointly acquired through joint efforts would automatically fall in the hands of the appellant. There was a question of the hardware shop at Kariakoo but this did not feature in the submission before me though was subject of the third ground raised in the appeal. There was no enough material put before the Court and neither was the same discussed by the trial court at length since the 8 evidence revealed it was non-existant. The same goes to the • alleged vehicle and the Plot at Kichangani llala, District. All said and done the Court proceeds to uphold the judgment, proceedings, orders and decree thereto by the trial Court. Consequently, the appeal is found to have no merits and the same is accordingly dismissed. I make no . order for costs. It so ordered. , ., J B. R. Mutungi

JUDGE 25/07/2019 Read this day of 25/07/2019 in presence of the appellant, respondent and Mr. Masanja Samson, learned Advocate for ¥ ~- B. R. Mutungi

JUDGE 25/07/2019 Right of appeal explained. y :J. B. R. Mutungi

JUDGE 25/07/2019 9