tazlii ocr 18magaka

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB - REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 6092/2024 (Arising from a decision of Temeke District Court at One Stop Centre in Matrimonial Cause No. 84 of2021 before Hon. Mpessa - SRM) MAGDALENA CHARLES MAGAKA............................................ APPELLANT VERSUS RAPHAEL MASSAWE............................................................... RESPONDENT JUDGEMENT 16/04/2024 & 14/06/2024 M.MNYUKWA, J. This appeal traces its origin from Matrimonial Cause No. 84 of 2021 where, appellant (petitioner then) was aggrieved with a decision of a trial court on division of matrimonial properties. Basically, after appellant petitioned for divorce and distribution of matrimonial properties at the trial court, the case was fully heard and the findings thereof was to the effect that, the marriage between the parties was dissolved and decree of divorce was issued. Also, their matrimonial property which was a house at Senzere Street at Bunju A Kinondoni Dar es Salaam was divided at the ration of 30% and 70% to the appellant and respondent respectively. While, a house at Bunju, Mianzini was declared not a matrimonial property. The background facts leading to this appeal as transpired in the records are that; the parties celebrated their Christian marriage in June, 1999 and were blessed with one child who is now a grown man. As both of the parties testified at the trial that, their marriage turned sour to the extent that respondent left her matrimonial home since 2006 and returned in 2018. Cruelty and adultery seemed to be the causes of the parties' misunderstanding, whereas, appellant (petitioner then) accused respondent to have extra marital affairs while respondent accused appellant for being cruel to himself and his family. It is in record that, the parties tried to reconcile their disputes, but their efforts were in vain, until when appellant was issued with a certificate from marriage conciliation board which certified that, it has failed to reconcile them. Hence, appellant filed a petition for divorce at the trial court. As I have already stated hereinabove that, the trial court heard the case and gave out its decision which is subject of this appeal, where, appellant armed her appeal with five grounds that; 1. The trial district court of Temeke at One Stop Judicial Centre erred in law and fact for failing to order equal division of matrimonial properties obtained during the subsistence of marriage LI & 2. The trial district Court of Temeke at One stop judicial centre erred in law and in fact by refusing to order equal distribution ofproperty on the sense that respondent had contributed much than the appellant, while respondent deserted the appellant and the children plus all belongings including the matrimonial properties over 13 years under the care of appellant. 3. The trial district court of Temeke at one stop judicial centre erred in law and in fact by holding that the respondents had contributed much than the appellant in the said matrimonial asset, despite the dear depiction of the opposite in the record. 4. The trial district court of Temeke at one stop judicial centre at Temeke erred in law and fact by failing to include a house located at Mianzini as among other matrimonial property, with just a mere assertion, that such house was built as gift for the respondent daughter without any document substantiate such aver. 5. The trial district court of Temeke at one stop judicial centre at Temeke erred in law and in fact by failing to analyse the weight of the evidence presented by the petitioner. Since respondent decided to abandoned the appellant for over 13 years and come back with nothing it is very dear that appellant had contributed much to the said matrimonial properties than respondent. At the hearing both parties were represented. For the appellant was Mr. Meshack Dede learned advocate, while for the respondent was learned advocate Japhet Tesha Mathias. A leave of the court was granted after a prayer from the parties that, the appeal be heard by way of written submission. Supporting the appeal, learned advocate argued conjointly ground 1 and 2 by stating that, since respondent deserted appellant for about 13 years, it is without doubt that, the property which was left with the appellant was improved by herself. He referred this court to the testimony of PW2, PW3 and exhibit P3. He also suggested that, the trial court could have considered section 114(1) and (2) of the Law of Marriage Act, Cap 29 R.E 2019 (the Act) and order an equal distribution. To support his argument, he cited the cases of Kagga vs Kagga, High Court Divorce Case No. 11 of 2002 Uganda Case, Lukia Abdallah Kalengo vs Issa Chande Lokotho, PC Civil Appeal No. 18 of 2023 HC and Sixbert Bayi Sanka vs Rose Nehemiah Samzugi, Civil Appeal No. 68 of 2022. Further, learned advocate argued together grounds 3 and 5 that, during the trial respondent failed to substantiate his testimony that he contributed in improving the matrimonial property which he left with the appellant. To support his argument learned advocate cited section 110( 1)(2) of the Evidence Act Cap 6 R.E 2019 that whoever alleges must prove, and according to him respondent failed to discharge his duty to prove his contribution. The case of Sudi Kasapa vs Paulo Futakamba, Land Appeal No. 15 of 2021 HCT was cited to support his argument. Lastly, on ground 4 Mr. Dede, learned advocate submitted that, it was testified by the respondent when he admitted that a disputed plot was written the name of his child, according to the learned advocate the said plot was a matrimonial property obtained by parties' joint efforts. He referred this court to the testimonies of DW1 and DW2. To buttress his argument. He cited the case of Salehe Kalyoi vs Fatuma Salehe, Matrimoial Appeal No. 2 of 2021 HCT. He then prayed for equal distribution of matrimonial properties. Disputing the appeal was Mr. Mathias who argued conjointly grounds 1, 2, 3 and 5 by praising the trial court for what he called a correct decision on distribution of matrimonial property. According to the learned counsel, appellant failed to prove her contribution toward acquisition of the property, unlike respondent who proved that he was the one who purchased the plot on which the house in question was built. Learned advocate argued further that, even for those 13 years which respondent left his home, appellant benefited since she rented part of the house and used what she earned for her benefit. He added that, renovation of a house alleged by the appellant was challenged by the testimonies of DW3, DW4 and DW5 who testified in court that the house looked the same as was left by the respondent in 2006. It was the learned advocate's argument that appellant failed to prove her extent of contribution to warrant her equal division of the matrimonial house at Bunju. j) As for ground 4 learned advocate argued that, as for the property at Bunju, Mianzini Street, appellant failed to prove her contribution toward acquisition of the same. As per learned counsel the same was proved to be owned by DW2 as exhibited under Exhibit D3. According to him, appellant is misleading this court claiming the same to be matrimonial property. He then rested his case by praying that, the appeal be dismissed for lack of merit. Having considered the submissions of the parties and examined the records, the issue for determination is whether this appeal is merited. To begin with, I shall determine grounds 1, 2, 3 and 5 conjointly and ground 4 separately. As a matter of fact, grounds 1, 2, 3 and 5 challenges a distribution of a matrimonial house at Bunju A which appellant was given 30%. Now the issue which can be couched from the said grounds is whether appellant deserved an equal distribution of the matrimonial house in question. It is a naked truth that, in distribution of matrimonial properties the law is settled that, proving the extent of contribution toward acquisition of matrimonial properties is of utmost important. This is due to the fact that, court are enjoined by the law as it is provided for under section 114 (2) (b) of the Act that, when exercising its power conferred to it during distribution of matrimonial properties to consider, among other things, the I extent of contribution made by each party in money, property or work towards acquisition of the same. For ease of reference the law states; H4.-(l) The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by theirjoint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to - (a).............................................. (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; Relatively, in the case of Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 CAT at Tanga, the Court insisted that in division of matrimonial property, extent of contribution of each party has to be considered. And, courts were reminded that in resolving the issue of extent of contribution courts should have to rely on the evidence adduced by the parties. It appears therefore that, in this case at hand appellant alleged that the trial court erred in giving her 30% of the house when she contributed more than the respondent who deserted her for 13 years. After my perusal of the record, I realised that despite the fact that appellant alleged to have bought the plot on which a house in question was built, but she failed to substantiate the same with evidence since exhibit P2 which she tendered at the trial court shows that the said plot was bought by respondent. However, her assertion that she improved the said house when respondent deserted her for 13 years were collaborated by PW2 who testified that he was the mason who renovated the house. Also, PW3 who testified to have seen appellant renovate the house, even respondent who testified as DW1 at the trial, at page 66 of the typed proceedings admitted that appellant fixed the inside and outside toilets. Also, appellant tendered exhibit P3 which were receipts of the materials she bought when renovating the said house, these receipts were not disputed by the respondent nor cross examined. Although, Mr. Mathias learned counsel attacked the said amount and alleged that the same might have been the money accrued from the part of the house which she rented, the argument which I found to be a mere speculation. Additionally, since it is undisputed that respondent left his matrimonial home for 13 years, it is obvious that appellant was the only person who took care of their son considering that, during 2006 when respondent left, and their son was about 7 years since it is in record that he was born in 1999. And, when he returned in 2018 their son was almost 19 years. At page 41 of the typed proceedings, PW3 testified in court that, appellant was living in that house alone with her son. It follows therefore that, an inference is made that appellant was the only one who was responsible for maintaining their son, having in mind that the parties were in bad terms. Considering all that above, it is apparent that appellant proved her extent of contribution which, with all due respect I agree with the learned advocate for the appellant that, appellant deserved an equal distribution of a matrimonial house at Bunju A. Consequently, I therefore vary a distribution by the trial court by holding that, the matrimonial house at Bunju A, Sanzere Street should be divided equally between the parties. Grounds 1, 2, 3 and 5 have merit, they are allowed. Coming to ground 4, it is appellant's complaint that a house at Mianzini was not included among the matrimonial properties. This should not detain me much since, as a matter of law appellant failed to prove during trial that the same was matrimonial property. Nevertheless, during trial DW2 tendered exhibit D3 to prove that the said property was bought by her in 2006. While in her testimony she testified that, the property was bought in her favour. Guided by the decision of the Court of Appeal in the case of Gabriel Nimrod Kurwijila (supra) it is clear that a property bought in the name of the child cannot be grouped as matrimonial property. Having said that, this ground lacks merit and it is dismissed. Considering all that I have said above, this appeal is partly allowed to the extent explained above. Since parties were couple, I make no orders as to costs. It is so ordered. Right of appeabexplained to the parties. JUDGE 14/06/2024 Court: Judgement delivered in the presence of the parties counsel. M.MN JUDGE 14/06/2024