ocr tanzlii MWAKAPALA0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB REGISTRY ONE STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 19751/2024 LUSEKELO YOHAN MWAKAPALA................................ APPELLANT I VERSUS BATILDA STEPHEN MUSHI.......................................... RESPONDENT (Appeal from the Judgement and Decree of the District Court at Temeke- One Stop Judicial Centre Hon. RE Mwasika, SRM) dated 12? day of August, 2023 in Matrimonial Appeal No. 83 of2024) । JUDGEMENT Date of last order: 11/10/2024 Date of Judgement: 31/10/2024 S.D. MWAI POPO, The Appellant herein is aggrieved by the Judgement and Decree of the District Court of Temeke in Matrimonial Appeal No. 83/2024, decided by Hon. R.E. Mwaisaka ‘SRM. Initially parties herein filed a Matrimonial case No. 816/2022 at Primary Court of Temeke at Temeke One Stop Justice Centre before Hon. A. J. Mwainyekule RM. Aggrieved by the said decision the Appellant filed his first appeal before the District Court of Temeke praying for the Judgement and Decree of the Primary Court to be quashed and set aside and prayed for the court to order the division of the property accordingly. Upon hearing the matter, the District Court, dismissed the appeal with no arder as costs. The District Court issued the following orders; i. ■ Varied the order of division of. the plot at Vikindu and a farm ‘at Mwasonga to the tune of 70% to the Appellant and 30% to the Respondent. ii. The House at Vijibweni, the order for sale shall be a last resort, in alternatively the court order valuation of the same be conducted, the one who wants to retain shall compensate the other part's share. iii. Regarding the company jointly owned by couples, if any of the party wants to split, he shall pursue his rights through the procedures stipulated under the companies Act. Again, the Appellant was dissatisfied with the decision of the District Court and decided to file an Appeal before this court containing four grounds of appeal as follows: i. That the Resident Magistrate erred in law and fact by failing to decide on the failure by the trial court that the evidences on the extent of contribution were not properly assessed and analyzed which rendered tn an erroneous decision. II. That the Resident Magistrate erred in law and in fact by ordering the distribution of a farm located at Mwasonga Kigamboni at 30% to the Respondent and 70% to the Appellant without considering the fact that the Respondent contributed nothing as the same piece of land was not mentioned as part of the listed assets during the hearing as the same piece of land belongs to another person. ill. That the Resident Magistrate erred in law and fact by ordering the plot located at Vikindu to be distributed at 30% to the Respondent and 70% to the Appellant without considering the fact that the Respondent agreed, the truth that the said plot was acquired by the Appellant before marriage. iv. That the Resident Magistrate erred in law and fact by denying the fact » - t ’ that the house at Vijibweni was built by the Appellant before marriage and thus erroneously upheld the trial court decision that the said house be divided 60% to the Appellant and 30% to the Respondent. The Appellant thus prayed for the appeal to be allowed and the Judgement and Decree of the District Court to be quashed and set aside. At the commencement of hearing the Appellant was represented by Chrispinus R. Nyenyembe, learned Advocate while the Respondent enjoyed the services of learned Advocate Lucy Nambuo. The hearing of the Appeal proceeded by way of written submissions pursuant to timetable drawn by the court. Arguing in support of the Appeal the learned counsel submitted as follows: With regard to the first ground of appeal, he contended that the trial court failed to analyze and asses the evidence on the extent of contributions as the house at Vijibweni was built by the Appellant before marriage something which resulted into an erroneous decision. The Appellant contended that the court failed to analyze whether the Respondent contributed in the construction of the fence of the Matrimonial house to warrant 60% to 40% distribution. He stated that he bought the said house in 2008 and plots in 2006. He submitted further that the trial court failed to analyze the evidence that the Appellant ■ built the house before marriage and indirectly the Respondent contributed in the construction of the fence. In order for the court to be in a good position to evaluate the extent of contribution of each party to the dispute, he submitted that according to section 114 (2) (b) of the Law of Marriage Act the court is required to asses contributions made by each party interms of money, property or work towards acquisition of assets. He also referred the court to r the- case of Mariam Tumbo vs Harold Turn bo HCT at Dodoma TLR. He further referred the court to the case of Bibie Mauridi vs Mohamed Ibrahim < HCT TLR 162/1989 to drive , a point home that, there must be evidence to ■ show the. extent of contribution before making an order for distribution of matrimonial assets. Performance of domestic duties amounts to contribution towards such acquisition but not necessarily 50%. He contended further that, based on. his submissions there is nowhere the court assessed the contributions in terms of money, property, or work on the part of the respondent despite the fact that it accepts that the said house was acquired before marriage. The Appellant contended that; he worked very hard in investing his properties and money obtained from Loan Facility that he acquired from CRDB Bank before marriage, the loan that is still paid up to now. The Appellant acceptance that the Respondent contributed in the supervision of the aforementioned property does not warrant the court to distribute the same into 60% to 40% ' .shares byr supervision alone, the Respondent deserves only 10% of the distribution. Thus, the court should justly have directed itself in awarding 90% of shares to the Appellant and. 10% of shares to the Respondent. With regard to the second ground of appeal the Appellant submitted that, the Resident Magistrate erred in law and in fact by ordering the distribution of a farm located at Mwasonga Kigamboni which belong tb another person and Vikindu farm at 30% to the Respondent and 70% to the Appellant without considering the fact that the Respondent contributed nothing as the Respondent herself accepted the truth that the said Plots were acquired by the Appellant before marriage. He contended that it is crystal clear that, the court accept the truth that the Appellant acquired farms located at Mwasonga and Vikindu before marriage. He referred the court at page 5 of its reasoning, where is it stated that: "In a nutshell it is undisputed fact that the Appellant acquired .... Farms at Mwasonga and Vikindu before marriage". It is the Appellant's? understanding from the quotation above that, the Respondent accept the truth'that, she had never contributed, to the acquisition , i A* ‘ < *.:• .< ' 1 J - * ’ of the farms mentioned above in terms money or work. There is nowhere in her evidence in her evidence where it has been proved that the respondent has contributed any money. He stated that in her evidence which the court skipped to discuss, she accepts to have received money from the appellant and thus used the same directly in the development and supervision of Vikindu and Mwasonga farms which were already there before her marriage. Going : through the whole records one will discover that, the house in Vijibweni was acquired by the Appellant in 2007 and refinanced in 2008" i through CRDB House Loan" even before the marriage and as well pieces of land of Vikindu and Mwasonga was acquired in 2006 of which money for the development of the said house was sourced by the Appellant and. .the Respondent accept all of this by stating that she was the one was responsible in .the supervision of the whole properties. If the court could b,e in ,a ..good position to assess and analyze all of these it couldn't have come up with such wrong findings which are based only in.the Respondent's contribution in terms of supervision but not in terms of Money, Work or Properties as stated in the case of MARIAM TUMBO (supra). In conclusion the Appellant prayed that, this appeal be allowed, the decision of the district court and decree be quashed and set aside and order the division of the matrimonial house to the tune of 90% to the Appellant and 10% to the < Respondent and farms located at Vikindu to the tune of 85% to the Appellant 15% to the Respondent respectively. Submitting in rebuttal the learned counsel for the Respondent stated as follows: With regard to the first ground of appeal, she contended that the both the trial court and Resident Magistrate awarded the Appellant 60% and the Respondent 40% of the house in question. The Respondent was satisfied with the appeal while the Appellant preferred this instant appeal. The learned counsel submitted that the award did not consider section 114(2) of the LMA. On other: hand she contended that he Respondent participated in building the house and that it was ready for use in 2012 and not in 2008. The learned counsel referred the court to page 10 of the proceedings. With regard to the cited cases of Bibie Maurid vs Mohariied (Supra) the learned counsel for the Respondent contended that in the said case, performance of I domestic duties amounts to contribution towards such acquisition but not necessarily 50%. She agreed with the position but she distinguished the case by stating that the Respondent was not a house wife as she is a lawyer and works for gain in addition to other domestic chores/works? She contended that even in the case of Bibi Hawa Mohamed, She was awarded 30% despite the fact that she was a housewife. The learned counsel also referred the court to the case of Charles Manoo . Kasare vs Apolina Manoo Kasare 2003 (TLR 426). She contended that the Respondent is employed and earns a salary. Before moving to Kigoma she was employed by Alliance Insurance but left her job to join the Appellant. That while at Kigoma she could do business of selling dagaa (Silver Cyprinid) and later on while at Mpanda they were selling gas and rice. She contended that the Respondent was busy with business and the Appellant was busy with employment. She disputed further the assertion that the Respondent has only contributed by mere supervision, in the development of the house and taking care of the children and the property particularly at the time when the Appellant was still studying abroad. She argued that the Appellant went abroad for studies in 2015 up to 2020, a period of not less that six (6) years. The learned counsel state that the Respondent at the time was able to send TZS 1000,000 per month to the Appellant, caring for the family, praying school fees, doing farming activities and other duties and for her that is a big contribution, which deserves 50% of the house. With regard to the 2nd ground, she contended that it is similar .to the first ground of appeal, however she disputed the issue and prayed for it to be expunged in the record of appeal. As for the 2nd and 3rd grounds of appeal, the learned counsel for the Respondent contended that the trial court awarded 70% to the Appellant and 30% to the Respondent. She argued that both courts below analyzed the evidence and reached to the conclusion that the Appellant is not fair as he wants the Respondent to go empty handed. With regard to ground 4, she reiterated her submissions on the first ground of appeal. In conclusion she prayed for the court to dismiss the appeal and order the appellant to pay maintenance and school feed for children. In rejoinder the Appellant reiterated his submissions in chief. I shall not reproduce the submissions but refer to them as deemed appropriate. Having digested the rival submissions of the parties, the central question to be resolved is whether this appeal has merit. In determining this appeal I will combine the 1st and 4® grounds of appeal and the 2nd and 3rd grounds of appeal. With regard to the 1st and 4th grounds of appeal, the Appellant contends that, the trial court earned in law and fact by failing to decide bn the failure by the trial court to asses and analyze properly the extent of contribution which resulted into an erroneous decision. In determining this ground of appeal I am alive to the fact that section 114(1) and (2) a - d of the Law of Marriage Act, requires the court while assessing contribution of parties to have regard to the extent of contributions made by each party in money, property, and work towards the acquisition of assets, The said section provides as follows: a. The customs of the community to which the parties belong b. The extent of the contributions made by each party in money property or work c. Any debts owing by either party which were contracted for the joint benefit d. The needs of the children if any of the marriage and subject to those considerations, the court shall incline towards equality of the decision. Further, there is also a rebuttable presumption that any property acquired before marriage shall be the property of the party in whose name it has been registered. However, this is just a mere presumption and it can change if evidence is provided to the contrary. It is also trite law that improvement of the property acquired before marriage can also be used by the court in assessing the contribution of the other party towards acquisition of the said property. See page 4 of the District Court Judgement. With regard to the division of the house at Vijibweni the first, appellate court upheld a share of 60% to the Appellant and 40% to the. Respondent as ordered by the trial court. In arriving at the said percentages, both courts evaluated the evidence adduced by each party and reached into the said conclusion as can be seen from the records. After a careful perusal of the record this court has observed that, the said plot for the house was indeed bought by the Appellant in 2008, the fact which is not disputed by the Respondent. However, the Appellant in his testimony admitted that the Respondent has been instrumental in supervising the construction of the house, and that she had a contribution in his life. This is quoted in the proceedings of the trial court as follows;. Nyumba iliyopo nilinunua mimi 2008, viwanja nilinunua 2006. Kwenye Maisha yangu ana mchango mkubwa hasa kwenye usimamizi wa ujenzi wa ukuta kuzunguka nyumba baadhi ya mashamba tulikuwa tukilima kwa pamoja na kama mama alikuwa na mchango kwenye maisha yangu Further, I have perused the records from the trial Court and those of the first appellate court and observed that, based on section 114 of the Law of Marriage Act, the Respondent contributed to the acquisition of the said house. Much as the same house plot was bought by the Appellant in 2008, with a house erected on it, the Respondent found the house was still incomplete and it was until 2012 afterwards they were able to move in the said house and that she contributed in supervising its construction and the wall. See the evidence of DW2 in the trial court proceedings and page 6 of the Judgement who testified about the role of the Respondent in building the house. It is stated as follows: Naye SU 2 Verdian Mushi aliiambia Mahakama hii kwamba baada ya Mdaiwa kurudi kutoka Mpanda huku akiwa mjamzito alikuwa akifanya kazi kazi ya kuendeleza ujenzi wa nyumba kwa kubeba tires, cement na vifaa vingine. Furthermore, on page 4 of the Judgement of the trial court, the Respondent is quoted in the Judgement to have testified on her contribution as follows; Alisema zaidi walianza biashara ya kuuza mazao baada ya mavuno na walifungua biashara ta gesi ikiwa chini ya kampuni ya two stars ambayo yeye kwa kaisi kikubwa alikuwa mhusika kwa kuhakikisha anandaa nyaraka za kampuni Therefore, I have observed that there was contribution of both parties in the acquisition of the house in terms of money, property and work. The loan obtained from CRDB as argued by the Appellant can not be allowed at this stage since it does not form part of the evidence admitted in the trial court. I agree with the Respondent on this aspect as well as the Primary and the District court on this position. While I also agree with the position stated in the case of Bibie Maulid that, performance of domestic duties amounts to contribution towards such acquisition, but it is not necessary 50%. There could indeed be situations which could attract 50% division and vice versa. In the situation at hand there is ample evidence from the record indicating that the Respondent played triple if not multiple roles in contributing for the welfare of the family. The evidence on record before the trial court is clear and undisputed bn how she supervised the construction of the house she found incomplete, she facilitated income to be earned on behalf of the family by ensuring that the Appellant finishes his studies smoothly, taking care of the children while the Appellant was in abroad for further studies, doing and supervising family business. See Proceedings and Judgement of the trial court page 5 and 6 where the Respondent is quoted as follows: Mdaiwa alisema zaidi kwamba akiwa China alikuwa akimtumia Mdai fedha za matumizi kupitia Benki ya Exim kwa kila mwezi 1000,000 kwa ajili ya kujikimu masomoni na alitoa na alitoa bank statement kuthibitisha hilo ambayo Mahakama iliipokea kama kielelezo CC6.... Mdaiwa alieleza kuwa yeye alikuwa akishughulika na vitu vyooote, kutunza Watoto, kushughulikia Kampuni, kulima matikiti , mihogo mananasi Vikindu.. Therefore, the contribution of the Respondent is more than the 10% share claimed by the Appellant to be awarded to her, which is not supported by either facts or evidence. Further, I have also given due consideration to the case of Bi Hawa (supra) that while she was a mere house wife her contribution was only in terms of performance of domestic chores and she was still awarded 30% share in the distribution of the properties. In the instant case, the Respondent was not just a mere house wife, she was a mother, who was facilitating and running business for the family, taking care of the children, facilitating her husband to study and earn money for the family as well. The Respondent is a lawyer by profession and employed at different times in various offices such as M&Law associates, Office of the DPP, Alliance Assurance Ltd . See 4 and 5 of the Judgement and also untyped proceedings. Reve I have also further considered the fact that section 114 requires the court to consider needs of the children as well. The parties herein have kids who are 9/13 years, that is below 18 years and in the custody of their mother. Furthermore, the District Court in affirming the trial court's Judgement on page 6 held as follows: Having evaluated the trial court's record I am settled that the house in question is matrimonial house. Regarding the complaint that the appellant's contribution was little taking into consideration of her roles in performing domestic chores and supervising role the share which was awarded by the trial court of 60% and 40% was reasonable and fair. The same is upheld. The order for sale shall be done as a last resort.... Therefore, based on the evidence on record adduced before the trial court and upheld by the first appellate court, I see no need of disturbing the order of the trial and first appellate court of 60% share for the Appellant and 40% for the Respondent. I further, I agree with the order for the sale of the house to be the last resort and that if it happens then the court orders for valuation to be conducted first and the one party who would want to retain the house shall compensate the other party's share. It is my firm position that the first appellate court analyzed the evidence properly which was affirmed by the trial court and reached a just decision. The first and fourth grounds of appeal have no merit. With regard to the 2nd and 3rd grounds of appeal involving the farms at Mwasonga and Vikindu, the Appellant has testified that he is the one who bought the same. However, it is also on record that, the Respondent was also involved in taking care and improving the farms by doing agricultural activities the fact which is also supported by the Appellant. She was also involved in surveying the farms, therefore by virtue of section 114 (1) and (2) she has her contribution in those farms. The proceedings of the Primary Court and the Judgement attest to this position. See page 8/9 of the decision of the primary court where it is stated as follows: Kuhusiana na mashamba Mwasonga na vikindu Mdaiwa pia alihusika kwa kulima na hata kusaidia upimaji. Kwasababu hiyo Mahakama inaona kwamba nyumba, kampuni, shamba mwasonga na mashambi vikindu ni mali ya ndoa Further, in relation to the farms the District court held on page 7 as follows: Since the appellants admit that the Respondent was involved in developing the same by cultivating and surveying which amounts to joint contribution interms of section 114 of the LMA, I hereby order the division of farms at Mwasonga and plots at Vikindu to the tune of 30% to the Respondent and 70% to the Appellant respectively For that reason and in the same spirit I retain the share of 70% for the Appellant and 30% share for the Respondent for the division of the farm plots at Vikindu and a farm at Mwasonga. Therefore, the second and third grounds of appeal have no merit as well. Lastly, there was a prayer from the Respondent for the court to order the Appellant to pay maintenance/fees. I must state that this has not been one of the grounds of appeal, therefore I cannot dwell on it. The Respondent may wish to follow an appropriate procedure known in law for that purpose. In the upshot, I find that the appeal has no merit, I thus proceed to give the following orders; 1. The Appeal is hereby dismissed 2. The Judgement and Decree of the District Court at Temeke- One Stop Judicial Centre Hon. RE Mwasika, SRM) dated 12th day of August, 2023 in Matrimonial Appeal No. 83 of 2024 is hereby upheld 3. The share of 40% Respondent and 60% Appellant in respect of Vijibweni House is upheld. The sale of the house shall be done as a matter of last resort. If this option is taken then valuation shall be done and the party who would like to retain the house shall compensate the other 4. The Division of the Plots at Vikindu and Farm at Mwasonga is also upheld to the tune of 30% Respondent and 70% Appellant for each 5. Each party shall bear its own costs Dated at Dar es salaam this 31th day of October 2024 S. D. MWAIPOPO JUDGE 31/10/2024