ocr 3CIVIL APPEAL NO 20211 MALKIT Diana 2

IN THE HIGH COURT OF THE UNITED REPUBLIF OF TANZANIA AT TEMEKE-SUBREGISTRY ONE STOP JUDICIAL CENTRE CIVIL APPEAL NO. 000020211 OF 2024 Arising from Matrimonial cause no. 256 of2023 in the District Court of Temeke (One Stop Centre) at Temeke Harbans Kaur Bansal vs Malkit Singh Bansal MALKIT SINGH BANSAL.................................................... APPELLANT Versus HARBANSA KAUR BANSAL........................................... RESPONDENT JUDGEMENT Date of last order 27/09/2024 Date o Ruling: 30/09/2024 S.D. MWAIPOPO J, This Appeal emanates from the Judgement and Decree of the District Court of Temeke at One Stop Judicial Centre in Matrimonial Cause No.256 of 2023 decided by Hon. Swai (SRM). The brief facts of this case are that the Respondent herein was the Petitioner before the District Court of Temeke, whereby she filed Matrimonial case no 256 of 2023 against the Appellant herein, praying for the court to; a) Declare that; the marriage union between the parties has irreparably broken down and proceed to issue a divorce decree; b) Order the Respondent to pay the Petitioner the sum of TZS 54,000,000, being the value of the Petitioner's Vehicle (Rav 4 Toyota Make) and Golden items which the Respondent sold and consumed all proceeds without the Petitioner's consent or approval; c) Order that all the Money in the Bank Accounts mentioned in the paragraph 6(a), (b) (c) and (d) of the Petition be equally divided between the Petitioner and the Respondent; d) Permanently restrain the Respondent from spreading false and malicious accusations against the Petitioner's chastity e) Order costs be paid for f) Order any other reliefs as the court may deem just and equitable to grant Following the hearing and determination of the matter, the District Court delivered its decision as follows; a) Ndoa hii haijavunjika kiasi cha kutorekebishika; b) Amri ya utengano wa miaka mitatu inatolewa; c) Amri ya mgawo wa Tshs. 436,250,000/= inatolewa kwa mleta maombi kutoka kwenye akaunti ya pamoja wadaawa na. 101900096098 iliyopo Finca Bank.Kiasi kinachobaki(Tshs 123, 750,000/= ni stahili ya mjibu maombi. Amri ya mgao linganifu inatolewa kutoka kwenye akaunti ya pamoja Na. TA-303000533 iliyopo Letshego Bank d) Hakuna amri ya gharama inatolewa Aggrieved by the said decision, the Appellant has approached this court armed with five grounds of appeal, listed in the Memorandum of Appeal as follows; 1. The trial magistrate erred in law and fact to grant the order for separation while it was not needed. 2. The trial magistrate erred in law and fact to order Tshs 436,250,000 to be Petitioner's money as her joint effort in a joint account while the Respondent herein did not prove contribution of acquisition of the money. 3. The trial magistrate erred in law and fact to grant separation for three years 4. The Trial magistrate erred in law and fact to admit fact of existence of money in the bank account no 101210096088 at Finca Microfinance Bank, Tsh 312,500,000 while there was no evidence adduced by the petitioner 5. The trial Magistrate erred in law and fact to evaluate evidence which led to erroneous decisions It is on the basis of the above grounds that the Appellant prays for the court to allow the appeal, quash the order for separation and issue a divorce, order the Respondent herein to be given twenty percent 20% only out of TZS 660,000,000/= the money which is existing and proved and lastly, this court to issue any other order as it may deem just and fit to grant. The hearing of the appeal, proceeded orally pursuant to the order of the court. At the commencement of hearing, the Appellant enlisted the services of Ms. Sophia Rorya while the Respondent enjoyed the legal services of Mr. Ashiru Lwigisa, both learned advocates. On the material date, Ms Rorya set the ball rolling by submitting on the grounds of appeal. With regard to the first ground of appeal, she submitted that; the trial Magistrate erred in law and fact to grant the order for separation while it was not needed. She argued that, it is trite law that parties are bound by their pleadings. In support of her submissions, she refered the court to the case of Anthony Ngoo vs Kitinda Kimaro Civil appeal no 25/2014 CAT unreported pg 24, where the CAT held that: 'The court cannot grant a relief which is not prayed for in the Plaint She vehemently argued that, it was wrong for the trial court to grant the order for separation while it had not been asked for by the parties. She emphasized that, the Respondent in his pleadings prayed for divorce whereby the Appellant denied it. Submitting on the second ground, that is; The trial magistrate erred in law and fact to order Tshs 436,250,000 to be Petitioner's money as her joint effort in a joint account while the Respondent herein did not prove the contribution of acquisition of the money. The learned counsel submitted that section 114 (1) and (2) (a) and (b) of the Law of Marriage Act Cap 29 RE 2019, herein after to be referred to as the LMA, gives power to the court to divide properties based on customs and contribution of the parties. She was however of the view that the trial magistrate did not consider properly the provisions of this section when ordering for the division of the assets. She emphasized that, the evidence available shows that the Appellant was the one working for gain and bringing income at home and that she wrote the name of the Respondent in the bank account in order to easen the bank transaction processes so that when the Appellants dies his wife should not be in trouble. She argued that the trial court erred in law in interpreting section 60 (b) of the Law of Marriage Act Cap 29 RE 2019 because her client was the one who was working for gain and bringing income alone and the Respondent was a house wife doing domestic chores, something which was undisputed at the trial court. To bolster her submissions, she cited the case of case of Bibie Maulid Vs Mohamed Ibrahim Tanzania Law Report 1989 Pg. 162 where the court held that; "Performance of domestic duties amounts to contribution towards acquisition but not necessary to 5O°/o percentage share" She also referred to the case of Yesse Mrisho vs Sanya Abdul Civil Appeal no 147 of 2016 CAT pg 8 and 9 10 and 11 in which the court held that; Section 114 empowers the court to grant division of properties. She concluded this ground by praying for the court to allow the ground of appeal and order the 20 percent share be granted to the Respondent based on the money available in the bank account amounting to TZS 660,000,000/=. With regard to the third ground of appeal, she submitted that the trial magistrate erred in law and fact to grant separation for three years; She contended that, the trial court erred in ordering separation of the parties for three (3) years, anchoring her submission on the fact that, the parties are too old to separate for three years as the Appellant is 77 while the Respondent 71. Submitting on the fourth ground of appeal that is: the trial magistrate erred in law and fact to admit fact of existence of money in the bank account no 101210096088 at Finca Microfinance Bank Tsh 312,500,000 while there was no evidence adduced by the petitioner; the learned counsel for the Appellant submitted that, when the Respondent was giving her evidence before the trial court, there was money in the bank account to the tune of TZS 175,000,000 deposited in the mentioned account in the name of the Appellant and tendered Exhibit P4 indicating the money deposited in the Bank account. The Appellant who was the Respondent then, agreed that the money deposited in his account was money resulting from the proceeds of the sale of the land owned jointly by him and his son Gurdith Bansal. The plot was sold for TZS 350,000,000 and the money was divided between the two to the tune of TZS 175,000,000 for each of them. The Appellant admitted in the trial court that the money was deposited in the account and then was withdrawn when the Respondent had left him and the remaining amount was used for paying debts. She submitted that the Trial Magistrate erred in law and fact by stating that the Appellant withdrew and spent the money to the tune of TZS 312,000,000, which were in the stated account while the Appellant admitted to have spent TZS 175,000,000 only. She further stated that according to the record available, the Account is in the name of the Appellant and not in both names. She went on submitting that, the trial Magistrate also issued an order for the amendment of the petition of divorce by attaching the Bank statement. The said order was issued at the time when the Respondent had already adduced her evidence and with two witnesses discharged. Following the amendment of the Petition and the subsequent appearance of the parties in court, the advocate for the Petitioner who is not the Respondent prayed to close her case/evidence without recalling the witness, the Petitioner/Respondent to give evidence on the Bank Statement and tender the said Bank statement as an exhibit. The Petitioner did not even call the Bank officer to tender the said Bank statement to prove the said increase of an amount of money from TZS 175,000,000 to TZS 312,000,000 withdrawn in the Bank account. The learned counsel went on to argue that; the trial court erred in stating that the money was withdrawn from the bank while he did not have the said evidence indicating that money was withdrawn from the bank. It was her view that, it is an established law that the one who alleges must prove. She referred the court to section 110 and 111 of the TEA Cap 6 RE 2019. and also the case of Anthony M. Masanga against Penina and another civil appeal no 118/2014 CAT 9 para 2 3 and 4, pg 10 and 11 para 1 and 2 to substantiate the said position. She was thus of the position that the witness ought to have been recalled to tender the Bank statement as an exhibit, following the amendments in order to prove the additional amount of money, short of that the trial magistrate erred in law and fact by adding up the said amount of TZS 312,000,000 to TZS 660,000,000 and dividing it equally among the parties while the said amount of TZS 312,000,000 was not proved by the Respondent at the trial court. She concluded on this ground by inviting this court to allow this ground of appeal and order that the money proved before the trial court was only TZS 660,000,000 that exist and nothing more. Regarding the fifth ground of appeal, she argued that; the trial magistrate erred in law and fact to evaluate evidence which led to erroneous decisions. She submitted that Records indicate clearly that; the Petitioner who is the Respondent herein has never done any economic activities apart from domestic work. She contended that the Petitioner agreed in the cross examination that she is a housewife and that she does not have a work permit since she is not a Tanzanian. The learned counsel referred the court to the evidence of SU1, SU2 and SU4 whereby SU4 was an immigration officer. She argued that the trial magistrate in her records agreed with the evidence of the immigration officer. However, he still erred in law and fact in proceeding to give an equal division to the parties and including money that did not exist and was not proved by the Respondent. Similarly, on this ground, she submitted that, the trial magistrate also erred by not considering the provisions of section 60 of the LMA. She was of the view that the trial magistrate did not analyze TZS 175,000,000 as proceeds from the plot owned by the Appellant and his son and also not considering the fact that the wife/Respondent did not have any contribution towards acquisition of the said plot. The Respondent did not give any evidence showing her contribution in the said plot. The learned advocate was of the position that act of the trial court in failing to analyze this evidence led to an erroneous decision. It was her view that, the trial magistrate used the criteria that the Respondent gave consent to the sale of the plot as a wife therefore she deserved to get her division from the property. He contended further that; It is a trite law that when a married man sales a property consent must be obtained from the spouse and vice versa. The act of signing as a wife does not show that the wife has a contribution in the said property. She was thus of the submission that the trial magistrate erred in court while analyzing the case of Bibie (supra) and bi hawa Mohamed (supra). She refered the case of Bibie at pg. 162, where is stated clearly that; domestic duties amount to contributions to the acquisition of the properties but would not necessarily entitle a person 50 percent. She argued that in the case of Bibi Hawa Mohamed (supra), the court stated the same principle but did not affirm 50 percent division of properties should be given. Therefore, the trial court erred in these two cases. The case before the court indicates that, the contribution of the wife was mainly domestic services. Therefore, based on the cases cited and evidence the trial court erred in dividing the properties by 50 percent. Further, she added that, section 63 of the TEA provides for proof of contents of documents, she stated that the bank statement which was not tendered by the Respondent before the trial court is a documentary evidence. This could have enabled her to prove that the money was withdrawn and ought to have been proved the bank officers however this was not done. The learned counsel then concluded her submissions praying for the court to grant this appeal and award the 20% share to the Respondent and 80% to the Appellant on the matrimonial properties, including money to the tune of TZS 660,000,000 only and any other reliefs this court may deem fit to grant Submitting in rebuttal, the Respondent's advocate, Mr. Lwigisa, began by opting to combine the 1st and 3rd grounds of appeal since they are intertwined. He disputed the notion of the Appellant that the court ordered for separation, which was not, pleaded the parties. To bolster his submissions, he referred this court to section 107(2) of the Law of Marriage Act, which states that the divorce decree is not granted as a right. He submitted that in the trial court the Petitioner petitioned for divorce, however, the same was resisted by the current Appellant and the trial court rightly exercised its discretion under section 110(1) (a) of the LMA and granted an order for separation instead of divorce. He referred the court to page 3 of the Judgment, which is being challenged now which reads as follows; Mahakama imezingatia muda wao wa miaka 52 wa ndoa He argued that based on those reasons, the court in its wisdom decided to grant separation and not divorce therefore the 1 and 3 grounds of appeal are devoid of merit and he asked the court to overrule them. It was his further views that he had expected the Appellant to demonstrate that the court did not exercise its discretion. His client, the Respondent petitioned for divorce and the trial magistrate exercised his discretion under the law. He emphatically emphasized that the previous prayer was for the grant of divorce. Responding to the case of Anthony Ngowi (supra) where the Appellant relied on his proposition that parties are bound by their own pleadings; the counsel for the Respondent was of the view that, this authority could only be valid if the Respondent had petitioned for divorce and in the course of proceedings prayed for separation then the principle could have worked however it is irrelevant where the court is empowered to exercise its discretion in granting alternative reliefs. On the issue that the Appellant is asking for divorce now while he was objecting for the same in the trial court, he submitted that, the Appellant is blowing hot and cold because he was resisting divorce in the trial court. In the first place he ought to have stuck in that position. It is legally wrong at this time to shift his gear and make a prayer which was not made in the trial court. It was his humble submission that this court should not disturb the reliefs granted by the trial court Submitting on the 2nd ground of appeal, the learned counsel for the Respondent stated that, the gist of the Appeal is that it is wrong for the trial Court to order that the Respondent be given the said amount of money, as she did not prove the said amount. He contended that the learned counsel for the Appellant has submitted that the Applicant was just a housewife and her domestic services did not warrant her to be given the said amount of money. He submitted that this ground is not supported by facts on record and principles of law. The court record will bear witness that the Respondent who was PW1 testified that she had lived with the Appellant for 52 years. Their only source of income was derived from the family business, which was registered as Diesel Garage Ltd. Further, the Appellant during trial admitted under cross examination that the Respondent was a director in that company. It is also on record vide the evidence of Gurdith Bansal, SM3 and SU2 that the Respondent was actively engaged in domestic affairs and involved in the business as well. That is why the joint account was in the name of both parties and all the three accounts. He argued that It is rather ironical for the Appellant to reduce all these services of the Respondent to call them as domestic services. With regard to the cases cited by the Appellant, he submitted that, the case of Bibi Maulid (supra) and that of Yesse Mrisho(supra) cited by the learned counsel trying to convince the court that domestic services don't necessarily entitle the spouse to the 50 percent share, he would reply and distinguish them based on two grounds; That, one, each case when it comes to domestic services is considered based on its own circumstances, there are circumstances which would entitle the spouse to 50 percent like the present case With regard to the case of Yesse Mrisho (supra), he argued that it is self- defeating, since the CAT in that case awarded the spouse 50 percent share. He referred this Court at page 12 and 13 of the Judgement. He contended further that the Parties have lived for 52 years together. The family business was established during the subsistence of the marriage and the Respondent was participating in the family business therefore it was legally and factually proper for the trial court to order equal division of the matrimonial assets. And that, the said amount which was divided by the trial court was reached after the court had made some calculations on the money in the bank accounts jointly owned by the parties and came to the right conclusion that this amount was entitled to the Respondent. He went on submitting that, the assertion that the Respondent be given 20 percent share is unrealistic, absurd and not supported by facts on record Submitting on the 4th ground of appeal, the counsel for the Respondent stated that, the Appellant has essentially argued that there was no proof on record on the existence of an amount of TZS 312,000,000 in the bank; therefore, it was wrong for the trial court to award the said amount. In return he submitted, that the said argument is misleading. It is indeed true that the Respondent was given leave to amend her petition for divorce and in that amendment, If one looks at para 6(d) of the amended petition for divorce, the Respondent had pleaded on the existence of the said amount of money and the unlawful withdrawal of the said amount. He further agreed with the learned counsel for the Appellant that the bank statement was not tendered on record, however, during cross-examination, the Appellant made an-unequivocal admission that, that amount of money although it was in a joint account he withdrew it because he had some debts to pay. But when he was asked to prove if he used the said amount to pay debts he could not produce any evidence. He argued that, It is an elementary principle of law that any fact which is admitted does not require further proof. Section 60 of the TEA it says; No fact needs be proved in civil proceedings which parties agree to admit in the hearing. Since the Appellant made an admission during cross examination that he withdrew the money because he had some debts to pay, then there was no need to produce witnesses from the bank to prove the existence of the account and the money. He argued that proof of cases does not depend on the number of witnesses but the quality of the evidence tendered in court. Regarding the cases cited by the Appellant, that is the case of Anthony Masanga (supra) page 9,10 and 11, he submitted that the CAT in this case analyzed the principle of proof of cases in civil cases. In principle in proving cases in civil case it either something happened or never happened. Since the Appellant admitted that the money was there and he withdrew it then it is my humble submission that the Respondent discharged her duty therefore the trial court was justified to include the said money in the division of matrimonial properties. He thus invited the court to overrule this ground of appeal. On the fifth ground of Appeal, that is; the trial court did not evaluate the evidence and reached into an erroneous decision, the learned counsel responded to the issues raised as follows; With regard to the issue that the Respondent was a housewife and did not contribute in the income; he reiterated his previous submissions on this point. Regarding the fact that the Respondent is a foreigner and has no work permit thus she does not deserve her 50 percent shares; he submitted that the said arguments are irrelevant in terms of consideration to be made by the court under section 114 of the Law of Marriage Act since under this section, efforts made by the wife in a marriage are not excluded based on citizenship or residence of a particular spouse. He argued that a wife does not need to be permitted by the government to serve her husband. It would be unfair to disregard the efforts made by the Respondents for 52 years and raise 7 kids simply because she is not a citizen. That is not our law. Had this been an issue the Respondent could have been reported to the authorities, therefore, he argued that this line of submission is a misconception. As for the sale of the land, he submitted that, the Appellant made an argument that the respondent simply gave her consent on the sale of her property because it was a mere procedure. He argued that; that was also a misconception. He referred this court to section 59 of the LMA to cement his submissions; he contended further that, the provision recognizes the spouse interests in any matrimonial property. He further emphasized that, the Respondent signed because she had an interest in the property. That is why when the property was sold, the proceeds were put in the joint account and she deserved an equal share. He finally prayed for this this Court to dismiss this appeal and uphold the decision of the trial court on the findings regarding the division of properties and order for separation. He has rejoined that there is nowhere in the judgment where the trial magistrate showed that the marriage has irrepably broken down as per section 110(1) of the LMA and that is why the trial court was right to order for separation In rejoinder the learned counsel for the Appellant reiterated her submissions in chief and specifically submitted as follows;. With regard to the case of Anthony Masanga (supra) being irrelevant, she submitted the said case establishes the principle which is applicable in pleadings in general it did not specify which type of pleadings. On the issue of separation, she emphasized that 3 years separation is too long for the parties. Regarding the contribution of the Respondent and the money, which was divided by the trial court, she maintained her submissions in chief. I shall not reproduce them but will refer to them as appropriate. Having meticulously reviewed the rival submissions of the learned trained legal minds, the central issue to be resolved is whether this appeal has merit. In dealing with the instant appeal, I have been guided by the principle that, the first appellate court is entitled to re-evaluate the evidence on record in order to reach a fair and just conclusion. See the following cases; Kaimu said vs. Republic, Criminal Appeal no 391 of 2019, Hassan Mohammed Mfaume vs Republic (1981) TLR 167 and Rashid Abiki Nguwa vs Ramadhani Hassan Kuteya and another, Civil Appeal No. 421 of 2021. Further, in the determination of this appeal, I will combine the first and third grounds of appeal together and the second and the fourth grounds of appeal since they are related and intertwined. The fifth ground of appeal will be argued separately. With regard to the first and third grounds of appeal, the Appellant has contended that; the trial magistrate erred in law and fact to grant the order for separation while it was not needed and that the trial magistrate erred in law and fact to grant an order for separation for three years. The Respondent on her part disputed the grounds of appeal, contending that the trial court was correct in issuing an order for separation based on the evidence tendered before the court and provisions of section 110(l)(a) of the Law of Marriage Act which grants discretion to the court to order separation based on the circumstances of each case. She further contended that, the Appellant denied the prayer for divorce at the trial court therefore; he should not be allowed to press for it before this court. In analyzing these two grounds, I have perused the pleadings filed before the trial court and observed that; the Appellant in her Petition, prayed the court to grant among other orders, an order for divorce. Page 5 of the Petition last para on reliefs reads as follows; WHEREFORE; The Petitioner prays for JUDGEMENT and DECREE against the Respondent as follows; a) That this honourable court be pleased to declare that the marriage union between the parties has irreparably broken down and proceed to issue a divorce decree. I have also gone through the records of the trial tribunal and observed that; in her testimony the petitioner reiterated her prayer for divorce. She adduced evidence to prove adultery, drunkenness and cruelty on the part of the Appellant. She stated before the trial court as follows; Naomba amri ya kuvunja ndoa siwezi kuishi naye The Appellant/Respondent on his part disputed the said prayer by contending that the grounds adduced by the Petitioner could not warrant this court to decide that the marriage between the parties is broken down irreparably. He therefore prayed for the trial court not to grant an order for divorce. He stated as follows; Sipendi tupate talaka umri umepita. Nina miaka 77 na mke 71.Wazee kukaa pamoja ndio nzuri. Naomba Mahakama isitoe talaka. Similarly, with regard to separation, I have also observed from the trial court records that the Respondent herein also testified before the court that she left the matrimonial home due to the behavior of the Appellant and she has been separated with the Appellant for quite sometime. This fact was also affirmed by SM2. in his testimony (PW2). He is recorded to have stated as follows; Mama aliondoka nyumbani mwezi December 2022 tumejaribu sana kusuluhisha lakini baba amekataa kubadilika The trial court after digesting the evidence of the parties, came to the conclusion that; the evidence adduced by the Petitioner could not meet the threshold set under section 107 of the Law of Marriage Act, though it observed that based on the circumstances of the case there has been a dispute between the parties and misunderstanding which had led them to separate form each other or at least the Respondent herein to leave her matrimonial home. In other words, it observed the defacto separation between the parties. The court also considered the age of the parties and also the need for them to conclude their remaining life tenure together. Therefore, instead of ordering divorce in a situation where the marriage had not yet been irreparably broken down, the trial court exercised its discretion under section 110(l)(a) and decided to give them an opportunity to clear the dust in the hope that they would be able to sort out their differences and come back together again. Therefore, based on the provisions of section 110 of the Law of Marriage Act, the trial court granted an order for separation. It held and I quote; 1. Ndoa haijavunjika kiasi cha kutokurekebishika. 2. Amri ya utengano wa miaka 3 inatolewa. For avoidance of doubt the said section 110 reads as follows; At the conclusion of the hearing of the Petition or divorce, the court may; (a) if satisfied that the marriage has broken down and, where the petition is for divorce, that the breakdown is irreparable, grant a decree of separation or divorce, as the case may be, together with any ancillary relief; or In the case of Ally Hassan Msangi vs Mwajuma S. Mbwana (Matrimonial Appeal No.01 o 2021) [2022] TZHC 12713(12 May 2022) it was held that; 'It is trite law that any court dealing with a matrimonial cause is empowered to grant a decree of separation or divorce" Thus the Appellant's argument that, the order for separation should be quashed since it was not prayed for by the parties and that the Respondent is bound by her pleadings has no merit since the order was granted by the trial court based on the evidence adduced. There is no point in time where the Respondent departed from her own pleadings and prayer for divorce as analyzed above. The principle that parties are bound by their pleadings could have been applicable in a situation where the Respondent who was the Petitioner before the trial court could have changed her prayer for divorce in the middle of the trial court proceedings and opted for separation. The evidence available is very clear that the Respondent/Petitioner/ prayed for divorce and stood with her prayer till the end. The Appellant/Respondent denied the prayer for divorce before the trial court and stood by it till the end of the trial. The trial court in turn ended up ordering for separation based on the discretion bestowed upon it under section 110 of the LMA. Therefore, I am of the settled position that, there is no any departure from pleadings done by the Respondent herein. The Appellant is thus hereby estopped from blowing hot and cold since he did not support the prayer for divorce in the trial court, he cannot then be allowed to support it at this juncture since. In this regard, I distinguish the case of Anthony Ngoo vs Kitinda Kimaro (supra) cited by the Appellant on this point. Regarding the period of three years of separation being too long for the parties ho are old, as contended by the Appellant, I am of the firm position that I don't see the reason as to why I should fault the order for separation for three years, since it was rightly issued by the trial court as adumbrated hereinabove. I find the period of three years to be reasonably sufficient for parties to have time to heal, reflect on their differences given their ages and come to terms when time is right. Therefore, these two grounds must fail as analyzed above. According to the provisions of section 114(2)(b) of the Law of Marriage Act, the extent of contributions made by a party in the marriage in the form of work is one of the factors to be considered when assessing the division of matrimonial properties. In the case of Bibi Hawa Mohamed (supra), the Court of Appeal way back in 1983 held that; Since the welfare of family is an essential component of the economic activities of a family, man or woman it is proper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial or family assets and the joint efforts and work towards the acquiring of the assets have to be construed as embracing domestic efforts or work of husband and wife In the case of Bibie Maulid (supra) it was held that; Performance of domestic duties amounts to contribution towards acquisition but not necessarily 50% since it is dependent on a party 's contribution which is the determining factor of what share one would receive and each case has to be considered on its own circumstances. Applying the above holding and recognizing that the trial court made a finding of fact that the Respondent contributed to the acquisition of the matrimonial assets, that is, the money deposited in the bank from the income of the garage and proceeds of sale of other matrimonial properties (Garage Plot, Farm at Chamazi, house at Mwembe Yanga) through domestic work and duties, involvement in the family business and support to the family for a period of more than 50 years, and having also in mind that that Appellant and children who testified conceded to the fact that the Respondent was performing domestic duties and offering her services, which enabled the Appellant and the family to earn money from the family business, and in effect acknowledging the Respondent's contribution, based on the testimonies of the Parties and children, the set up of the garage business indicates the joint ownership and the intention of the parties running it together as a couple and family, I thus find under these circumstances, that, all these factors show that there were joint efforts by the Appellant and the Respondent in the acquisition of the matrimonial assets which were converted into cash money deposited in the joint bank accounts. Having considered all the submissions before me and under the circumstances, I find nothing to lead or convince me to depart from the findings of the trial court regarding the extent of contribution by the Respondent to the acquisition of the matrimonial assets. Therefore, I also hold that, the Respondent, contributed equally to the acquisition of the money deposited in the bank accounts, matrimonial assets, and thus each party is entitled to receive an equal share. As stated in the case of Yesse Mrisho (supra), the circumstances of this case are such that 50 percent share should be awarded. In arriving at this decision, I have also considered the fact that the Respondent is more than 70 years old now, (72 years) and cannot generate any income. I have taken into consideration that by common sense, she cannot find something else to do for gain. Similarly, she was also tirelessly taking care of the family when the Appellant was busy working at their garage, therefore the division of labour was for the betterment of their own family. The notion that the Respondent is a foreigner and does not have a working permit hence could not contribute to the assets, has no merit since according to the Law of Marriage Act, as a wife, she does not need a work permit to contribute towards acquisition of matrimonial properties and or serve her husband and family and her contribution is recognized by the court. Section 114 of the LMA has not created any class of spouses according to citizenship or immigration status. It knows no geographical boundaries when it comes to division of matrimonial properties jointly acquired by the parties. I therefore agree with the learned counsel for the Respondent that the Respondent contributed to the acquisition of matrimonial assets inform of money deposited in the Bank accounts and that she deserves an equal share of division of 50% and not 20% as contended by the Appellant, since 20% share is not supported by the evidence on record. I further hold that that the money deposited in the bank should be divided into 50% share for each. The next question is how much money should be divided between the parties? There are two separate figures, which have been raised and contested by the Appellant. That is, TZS 436,250,000 and TZS 312,000,000. I will analyze both figures together since they determine the final amount to be calculated and awarded based on the percentage of 50% contribution of each party. The Appellant in his submissions contended that the Respondent could not justify the award of TZS 436,250,000 and that the amount of TZS. 312,000,000, was wrongly admitted by the trial court since it was not proved by the Respondent. In dealing with these issues, I have perused the records and also submissions of the parties and observed that, as submitted by the learned counsel for the Respondent, the Respondent was given leave to amend her petition for divorce and vide the said amendment, at para 6(d) of the amended Petition for divorce, the Respondent pleaded on the existence of TZS 312,000,000 and the unlawful withdrawal of the said amount. According to the records available, the money was deposited in the following bank accounts: a) Malkit singh Bansal and Harbanas Kaur account no: 101900096098- TZS 560,000,000- Finca Micro Finance Bank b) Malkit singh Bansal and Harbanas Kaur -Letshego Bank- TZS 100,000,000. c) Malkit singh Bansal and Harbanas Kaur account no: 101210096088- TZS 175,000,000- Finca Micro Finance Bank d) Malkit singh Bansal and Harbanas Kaur account no: 101210096088- TZS 137,500,000- Finca Micro Finance Bank The total amount of money deposited in the above two accounts (item a (560,000,000 and item b 100,000,000, i.e. 660,000,000) was not in dispute between the parties as stated in the Memorandum of Appeal and submissions of the parties. However, parties were contentious on the extra amount of TZS 312,000,000, which also led to the distribution of TZS 436,250,000 ordered by the trial court to be paid to the Petitioner/Respondent. The Appellant contended that this amount was not proved while the Respondent contended that the said amount was proved by way of admission by the Appellant in his own testimony. The learned counsel also in his submissions admitted that, while the Bank Statement was not tendered on record, during cross examination, the Appellant made an-unequivocal admission that the said amount of money, although it was in a joint account he withdrew it without the consent of the Respondent because he had some debts to pay and other expenses to foot. In the course of verifying the submissions of the Respondent I have observed that the Appellant in his testimony admitted the amount of TZS 175,000,000 only out of TZS 312,000,000. He is recorded to have stated as follows: "Baada ya kuweka pesa 175,000,000 nililipa madeni ya watu na nyingine kutumia" The Appellant could not produce any evidence on the payment of debts he made but he admitted about the existence of the said amount of money in the joint bank account and its withdraw thereof without the consent of the Respondent, therefore there was no any further proof needed from the Respondent pursuant to the provisions of section 60 of the TEA which states that; No fact needs be proved in civil proceedings which parties agree to admit in the hearing. Since the Appellant made an admission of withdrawal of TZS 175,000,000 from the joint account (without consent of the Respondent for allegedly payment of debts) during cross examination, then there was no need to summon witnesses from the bank to prove the existence of the account and the said amount of money. I thus agree with the Respondent in this regard that, proof of cases does not depend on the number of witnesses but the quality of the evidence tendered in court. However, it should also be noted that based on the evidence on record, the Appellant admitted the existence of TZS. 175,000,000, only, apart from the amount of TZS 660,000,000 TZS, which is not in dispute between the parties. In his testimony, he denied to have known about the withdrawal of the remaining balance of TZS 137,500,000. He is recorded to have stated as follows in his testimony; "TZS 137,500,000 siitambui wala siijui chochote" As per the submissions of the parties, the Respondent did not tender any bank document to prove the amount of TZS 137,500,000 to the satisfaction of the court as per section 110 of the Evidence Act. Since there is no any other document tendered by the Respondent and admitted in court to prove the said amount, then it becomes difficult for me to rule on the same. Therefore, following the re-evaluation of evidence, the amount of money which was proved and admitted on record is TSZ 560,000,000, TZS 100,000,000 and TZS 175,000,000 making a total of TZS 835,000,000. Further, this court has observed that the amount of TZS 175, 000,000, which was admitted by the Appellant resulted from the proceeds of plot of land known as plot No. 8 situated at Gerezani Area in Temeke Municipal Dar es salaam, registered under certificate title No. 100881 sold at the rate of 350,00,000/= by the Appellant and his son Gurdith SM2 whereby the money was divided into half between them. The Sales Agreement also bore the names of MALKIT SINGH BANSAL AND GURDITH SINGH BANSAL. There is also spousal consent signed by the parties herein approving sale of the land as a matrimonial property. The evidence is clear that the land was jointly acquired between the parties above on the title, so the Respondent is thus eligible to a share of 175,000,000/= which I grant to 50% each. Based on the share of 50%, each party will be entitled to the total amount of TZS 417,500,000 of the money proved and admitted in the trial Court. Therefore, the Respondent ought to have been awarded by the trial court an amount of TZS 417,500,000 and not TZS 436,250,000 since an amount of TZS 137,500,000 was not proved before the trial court. Based on the case of case of Anthony Masanga (supra) page 9,10 and 11, the Respondent ought to have proved further, the existence of TZS 137,500,000 following the same being disputed by the Appellant, to enable this court to have sufficient materials for its judicial consideration. Having established the amount, which was proved, I proceed to hold that that for avoidance of doubt, the Respondent shall get her share of TZS 417,500,000 from the Joint Account No. 101900096098 Finca Micro Finance Account instead of TZS 436,250,000 ordered by the trial court. Then, the remaining amount of 142,500,000 out of 660,000,000 in the Finca Micro Finance Account shall go to the Appellant instead of TZS 123,750,000 ordered by the Trial court. The remaining amount of the 50% share of the Appellant shall be obtained from Finca Micro Finance Account and Account No. TA 303000533 Letshego Bank Therefore the 2nd and 4th grounds of appeal partly succeed and partly fail. The 2nd ground of appeal partly succeeds to the extent that the Respondent was entitled to TZS 417,000,000 only instead of TZS 436,000,000 as contested by the Appellant. However it partly fails to the extent that the Respondent managed to prove her contribution for 50% share contrary to the assertion by the Appellant. Similarly, the 4th ground of appeal also partly succeeds to the extent that the Respondent could not prove the total amount of TZS 312,000,000,000 but managed to prove the some of TZS 175,000,000 out of TZS 312,000,000 contested by the Appellant. Lastly, on the 5th ground, the Appellant is alleging that, the trial Magistrate erred in law and fact to evaluate evidence, which led to erroneous decisions. The learned counsel cited specific situations in which evidence was wrongly assessed. The learned counsel for the Appellant also disputed the said submissions on each ground. Having digested the rival submissions of the parties, I am of the following firm position on each issue raised; With regard to the issue that the Respondent was a housewife and did not contribute in the income; I repeat my analysis hereinabove which shows that the Respondent as the wife of the Appellant contributed towards acquisition of properties based on the services she rendered within the family (domestic services) and in the family business as well as an enabler of activities. Her contribution is recognized to the extent-analyzed hereinabove With regard to the fact that the Respondent is a foreigner and has no work permit thus she does not deserve her 50 percent shares; I reiterate my position stated above that the said notion has no place in the wording of section 114 of the LMA. The said arguments are irrelevant in terms of consideration to be made by the court under section 114 of the Law of Marriage Act since under this section, efforts made by the wife in a marriage are not excluded based on citizenship or residence of a particular spouse. The respondent wife does not need to be permitted by the government to serve her husband. This court has noted and observed her efforts for 52 years to the extent proved before the court on the acquisition of matrimonial properties. With regard to the consent of the sale of the land done by the Appellant and his son Gurdith, I agree with the Respondent that section 59 of the LMA recognizes the spouse interests in any matrimonial property and that the Respondent signed because she had an interest in the property. The wording of the consent is very clear that the property being sold was a matrimonial property and the proceeds were put in the joint account. Hence she deserved an equal share. ".................. I hereby give my consent to Malkit Singh Bansal (my husband) to sale the above stated property which is our matrimonial property”. Therefore, I agree with the trial court the manner in which it evaluated evidence based on the issues raised on this ground of appeal. In the upshot, based on the analysis above, this appeal is partly allowed and partly dismissed to the extent analyzed herein above. For the avoidance of doubt, I summarize the orders as follows; 1. The 1st and 3rd grounds of Appeal are hereby dismissed in their entirety. I uphold the order for separation for three years granted by the trial court. 2. The second ground of Appeal is partly allowed to the extent that the Respondent managed to prove the half total amount of TZS 417,000,000 (instead of TZS 436,250,000,) resulting from the total figure of TZS 835,000,000. The 2nd ground of appeal is partly dismissed to the extent that the Respondent did not contribute to the acquisition of matrimonial assets. I hold that the Respondent contributed to the acquisition of matrimonial assets (money) for 50% and that each party is entitled to 50% share. In this case the Respondent is entitled to the amount of TZS 417,500,000 only which was proved. The said amount of TZS 417,500,000 shall be paid from Finca Micro Finance Bank Account no. 101900096098. The remaining balance of 50% shall paid to the Appellant from the Finca Micro Finance bank Account and Letshego Bank Account no. TA-303 000 533. 3. The 4th ground of Appeal is partly allowed to the extent that the only amount of money proved in court by admission of the Appellant was TZS 175,000,000 out of total amount of TZS 312,000,000, wrongly awarded by the trial court. No proof of remaining balance of TZS 137,500,000, was tendered in court. 4. The 5th ground of Appeal is dismissed in its entirety based on the issues raised by the Appellant on this ground. 5. Each party shall bear its own costs. It is so ordered The right of Appeal is fully explained. Dated at Temeke this 30 day of September 2024 S.D MWAIPOPO JUDGE 30/09/2024