CIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA CIVIL APPEAL NO. 56 (534620) OF 2023 (C/F Matrimonial Cause No. 2 of 2023 in the District Court at Arumeru Arusha) MALIAKI EMMANUEL MOLLEL...................................................... APPELLANT VERSUS VICTORIA MARIKI................................................................. RESPONDENT JUDGMENT 16/10/2024 & 30/10/2024. D.D NDUMBARO, J The appellant aggrieved with the decision of the District Court at Arumeru Arusha Matrimonial Cause No. 2 of 2023 derived by GA Mwakunga PRM on 15/08/2023 and hence appealed this court against decree and judgment thereto. Before going to the matter in appeal, it is worthy to know the background of the matter, the appellant and respondent are a wife and i husband who celebrated Christian marriage in 1997 at TAG Bethel Church in Arusha and were blessed with four children namely Glory Maliaki 24 years, Goodness Maliaki 20 years, Godbless Maliaki 18 years and Godlizen Maliaki 16 years old. Their marriage was peaceful till 2000 when a misunderstanding arose. It was the appellant's claims against the respondent that, they were in matrimonial dispute for 16 years. The appellant claimed that the respondent wanted to be a ruler in the family, they did not have conjugal rights for 3 and half years, the respondent had an extra-marital relationship, and suspected her to have taken three million in the house. On the other hand, is respondent claims that in 2021 the appellant had a marital relationship with another woman and insulted her as a prostitute. On 10/05/2022 the appellant left the matrimonial home. They acquired properties with joint effort including a house of four rooms and a dining room at Ngaramtoni to which she has been staying since the appellant left, the house was constructed for 7 years, and the plot for the said house was in exchange for a plot given to the appellant by his parents, and also had acquired some household utensils. The appellant herein who was the petitioner in trial court Arumeru District court petitioned for divorce decree custody and maintenance of children and division of matrimonial properties and other relief as the court deemed fit to grant, the trial Court decided to separate the parties for two years so that may cool down their temper. The appellant could not wait for two years hence this appeal with two grounds:- 1. The Trial Court erred in law and fact by declaring that the marriage between the parties did not break down irreparably and denied issuance of a divorce decree in the absence of love and the marital relationship between the parties. 2. The Trial Court erred in law and fact by considering separation only as a ground of divorce leaving untouched other grounds of divorce such as adultery, denial of conjugal rights, and cruelty to mention a few. a) Hence appellant prayed for b) The judgment of the trial court be quashed and set aside c) This court is pleased to re-evaluate the evidence in the record of the trial and make its own findings. d) Gant any other relief deemed fit. When the matter called for hearing, both parties made a prayer r to dispose of by way of written submission whereby the appellant enjoyed the service of Advocate Richard Mosha and the respondent enjoyed the Probono service of Advocate Hamis Mayombo. Mr. Mosha submitted that the respondent was served with notice of appeal and raised the objection that the appeal is bad in law for being out of time, he argued the judgment was delivered on 15/08/2023, the intention of appeal was on 22/08/2023 and the appeal filled online on 13/09/2023, the summons was issued on 18/10/2023 and it was admitted on 19/10/2023. Section 80(2) Law of Marriage Act Cap 29 RE 2022, the time limit is 45 days, from the date of the decision. The appeal was filed on time and the preliminary objection has no merit. On the first ground, the trial court denied the issuance of judgment and decree for divorce between parties while parties are no longer in love, there is no consummation, and a lot of misunderstanding and separation, all of these lead to mental or psychological cruelty. The applicant alleges the respondent had marital affairs with another man named Mudy, did not respect the respondent, used to go home late, and did not cook for the husband. The parties were reconciled by family members, matron, patron of marriage, and ward tribunal conciliation board in vain, arguing all these show marriage has broken down irreparably. Supported his argument with a case of Tumaini M. Simoga Vs Leonia Tumaini Balenga Civil Appeal No. 117/2022 CAT Morogoro page 16, quoting the case of John David Mayengo Vs Catherine Malembeka PC Civil Appeal No. 32 of 2003, that crucial ingredients between the parties to a marriage is love, and parties are the judges on what are going on in their lives, once love disappears marriage is in trouble. Argued that the trial court would consider that there is no love between the partied, no conjugal right for three years, the respondent had love affairs with another man named Mudy and does not respect the appellant, goes home late, and does not cook for husband, would grant divorce. The appellant supported his argument in the case of Bi Hawa Mohamed Vs Ally Sefu (1983) TLR 32(TZCA) it was held that traditionary cooking and caring for children is the responsibility o f the wife, feeding and clothing the family is the responsibility o f the husband. Further section 107(2)(a) to (i) of the Law of Marriage Act Cap 29 provides grounds for divorce among others, cruelty, adultery, separation, misunderstanding, and absence of love. The position is clarified in the case of Mwinyi Hsmis Vs Zainabu Bakari TLR 1985, 5 that if the board issues a certificate of the marriage broken down irreparably the court could issue a divorce. Argue since the party's marriage broke down irreparably pray this court to issue a divorce. The second ground considers separation as the ground of divorce and leaves other grounds like adultery denial of conjugal rights for three years and cruelty. Argued there is no dispute that no love between them there is denial of conjugal rights, misunderstanding for 16 years, and there is no reason for the court to force parties to live together as a couple. The divorce be issued to get rid of disasters. Finally pray for a decree of divorce, division of matrimonial properties custody, and maintenance of children. In reply to the issue of preliminary objection, the respondent submitted that the appeal was filed on 19/10/2023, 21 days after when the time to file the appeal lapsed. On the first ground, the respondent argued that marriage is dissolved if it is proved the conditions necessitated to grant divorce as stipulated in sections 107(1) and (2) are met. Further, in the case of RVs R (204), TLR held that marriage should not be easily dissolved, and argued the trial court was proper to issue separation after seeing there was a chance for 6 parties to reconcile the matter. However, seeing the matter now both parties are no longer interested in reconciling nor staying together therefore the respondent supports the application for divorce. The respondent supported the argument in the case of Shida John Mapembe Justine Civil Appeal No. 56 of 2022 cited the case of John David Mayengo Vs Catherine Malembeka PC Civil Appeal No. 32 of 2003 that parties are the judges on what is going on in their lives, once love disappears marriage is in trouble. There is no magic one can do to make the party who hates the other love her or him. Argued since there was harassment and cruelty from the appellant and the appellant threatened to kill the respondent no chance these parties could reconcile. On the second ground argue that, it was the duty of the appellant to prove as per section 110(1) and (2) of Law of Evidence Act Cap 16 RE 2019 that marriage had broken down irreparably. The respondent testified adultery and cruelty, and the appellant left the matrimonial home without knowledge of where is he about and appellant testified not having conjugal rights for 3 and half years, that is both parties testified having a lot of disputes, this proof marriage broken down irreparably. Respondent prays that appeal be allowed, equal distribution of matrimonial assets, and order for maintenance and custody of children. It is time for the court now, to find if the appeal has merit. Upon going through the entire record, and the written submissions of the parties through their respective learned counsel there is no dispute that both parties find healthy that the decree of divorce, division of matrimonial properties custody, and maintenance of children be issued. Section 107(1), (2) of Law of Marriage Act Cap 29 RE 2022 lays down some conditions for the court to consider in dissolving marriage which both parties allege among others cruelty, not having conjugal rights, and dissertation. Despite the fact that the ground was not proved by the parties before the court but parties are no longer interested in keeping the marriage covenant. In the case of Shida John Mapembe Justine Civil Appeal No. 56 of 2022 cited the case of John David Msyengo Vs Catherine Malembeka PC Civil Appeal No. 32 of 2003 provides that; parties are the judges o f what is going on in their lives, once love disappears marriage is in trouble. 8 There is no magic one can do to make the party who hates the other love her or him. I understand that marriage is sacred and should not be dissolved easily, and I understand that if no love between the parties it is a big threat to the marriage bond. The respondent claims that there is the threat of being killed, considering the will of the parties that there is no way they can keep the marriage bond healthy, I consider it healthy to grant a decree of divorce as prayed. At this juncture, the decree of divorce is hereby granted. Following the granting decree of divorce, I now find two issues calling for my determination; a) one, whether the house at Ngaramtoni and other properties are matrimonial property. b) If this issue is answered in the affirmative, is there any extent of contribution established? In determining the first issue, it is worthy to know what mean matrimonial property. Matrimonial properties are property acquired during the substance o f marriage by either or both parties and intended for the benefit o f couples and the benefit o f the entire family. Section 114 of Law of Marriage Act Cap 29 does not specifically define matrimonial property but rather defines family Assets to mean assets acquired by joint effort In the famous case of Bi Hawa Mohamed Vs. Ally Sefu [1983] TLR 32 defines matrimonial assets in line with the term family assets as those things which are acquired by one or other or both o f the parties, with the intention that there should be continuing provisions for them and their children during theirjoint lives, and used for the benefit o f the family as a whole. It is undisputed that the plot at Ngaramton was exchanged with the plot given to the appellant by his parent, the fact which was not objected to by the respondent. Going through the said agreement of the exchange of the property made on 13/12/2010 was between Robert Said and Maliaki Emanuel Molel who is the appellant herein. No doubt that the land was given to the appellant but it was built by joint effort. However, there is no evidence of the extent of the contribution made by each party. The extent of contribution is of utmost importance for the Court to determine the percentage of distribution as it was stated in the case of Yesse Mrisho v. Sania Abdu, Civil Appeal No. 147 of 2016 10 (unreported) that, the court is guided by evidence of the parties on the contribution made. What we observed in the proceedings before Trial Tribunal is that, neither the appellant nor the respondent did testify regarding the extent of contribution when acquiring the matrimonial properties. The appellant dwelt deeply in leading evidence for proving divorce. The only evidence as to properties as rightly pointed out by applicant trial court proceedings is that one house at Ngaramton has two rooms and, on another side, the respondent testified there is a house at Ngaramton that has four rooms. Further there are household utensils including 37Vs, 3 Subwoofer, 5 Dining tables and chairs, a Cupboard, cloth board Gas Tank and Gas cooker fridge, deep freezer, radio, food warmer dressing table, three wooden beds, coach and music system. It was expected for parties to adduce evidence showing his extent of contribution on every property. Application of section 114 (2) of LMA is to the effect where there is evidence to prove the extent of contribution. Despite that parties did not show the extent of contribution but are bound by their pleadings. Going through the trial court records the respondent petition for divorce articles 10 and 11 shows parties acquired the property with joint effort. In paragraph 11 Annexed A1 a ii document titled Hati ya Makubaliano ya kutengana kwa wanandoa Annexure whereby the parties agreed that/- 1. The appellant will leave the matrimonial house to the respondent at Olorien village, Oiorien Ward Arusha together with everything there as family property but will not be sold or assigned in any way. The wife is free to develop but with prior information to the appellant 2. The children will be maintained by the appellant for medical expenses, school fees, food, and clothing, and the appellant will maintain the respondent unless she marries another man. 3. That both parties are free to Mary 4. Since children are grown up will choose whom to stay with Since that was the wish of the party, the parties are bound to what they agreed. However, in case the wife marries the, the wife will be given 40% of the current value of the house, considering the fact that the land of the house was in exchange for the house given to the appellant from his parent and 50% of mentioned household utensils. On the issue of custody and maintenance of the children of three namely Glory Maliaki 24 years old, Goodness Maliaki 20 years, Godbless Maliaki 18 years and Godlizen Maliaki 16 years old. Since the children are 12 grown up, I consider the wishes of children will guide where to stay to either father or mother. Since the father agreed to maintain the children and pay a monthly allowance he is bound to the said commitment, if the children who are still undergoing studies choose to stay with the respondent, the appellant will be responsible for paying for monthly subsistence as per their agreed amount which is 400,000. Order: marriage has broken down Children will be maintained by the appellant as per section 129(1) of the law Marriage Act Cap 29 RE 2022 and on the parties' commitment of TSZ 400,000 per month. Distribution of matrimonial property as per parties' agreement It is s< D.D. NDUMBARO JUDGE 30/10/2024 13