MALODA YOBWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA PC CIVIL APPEAL NO. 6355 OF 2024 (From the District Court of Mpwapwa in Matrimonial Appeal No. 10 of 2023: Original Matrimonial Cause No. 10 of 2023- Mpwapwa Urban Primary Court) MALODA YOBWA M KA LAG ALE............................. APPELLANT VERSUS ELENA SAKASA........................................................RESPONDENT JUDGMENT Last Order: 23rd August, 2024 Judgment: 29th August, 2024 MASABO, J.:- This is a second appeal. Its nucleus is a matrimonial dispute between the parties, a couple married customarily in 1989. Their marriage was dissolved by a decree of divorce issued by the Primary Court of Mpwapwa at Mpwapwa Urban in Matrimonial Cause No. 10 of 2023. Subsequent to the divorce, the court ordered an equal division of matrimonial properties. Among others things, each of the parties was awarded a house, 25 heads of cattle, 20 goats, 15 sheep and 4 pigs. The parties were also to receive one farm each and the third farm had to be sold and its proceeds shared equally. The distribution ratio enraged the appellant. He appealed to the District Court of Mpwapwa (the first appellate court) in Matrimonial Appeal No. 10 of 2023. The appeal ended successfully. The equal division was varied to the extent Page 1 of 6 that, the respondent lost the house, her heads of cattle were reduced to 15, the goats to 15 and the sheep to 10. The six-acre farm awarded to her was taken away and she was given the 5 acre farm which the trial court had ordered that it be sold and its proceeds equally shared. Still aggrieved, the appellant has filed this appeal on the following grounds:- one, the trial and first appellate court erred in law and fact in deciding in favour of the respondent without proof of her contribution.; two, the lower courts erred in not considering that the appellant's contribution was greater than the respondent's; three, the lower courts erred in law and fact by deciding in favour of the respondent without considering the fact that the appellant adduced reliable and strong evidence against the respondent; fourth, the proceeding of the trial and first appellate court was marred by procedural irregularities. Hearing of the appeal proceeded by way of written submissions. The appellant was represented by Mr. Majaliwa Wiga and Ombeni Ibrahim Likowa learned counsels whereas the respondent appeared in person, unrepresented. The parties filed their submissions on the scheduled dates. In support of the appeal, the counsels for the appellant abandoned grounds number two, three and four. They submitted on the first ground only. They argued that the respondent did not prove her extent of contribution in the acquisition of the matrimonial properties as required by the provision of section 114(2) (a) and (b) of the Law of Marriage Act, Cap 29 R.E.2019. All Page 2 of 6 she did was to list down the alleged properties without proving her contribution. To the contrary the appellant proved his case that he inherited the listed properties from his father who died in 2002. Bolstering their submission, they cited the case of Asia Christopher vs Jafari s/o Said (PC) Matrimonial Appeal No.9 of 2021 [2022] TZHC 10773 TanzLII and prayed that the appeal be allowed with costs. In reply, the respondent submitted that the trial court and the 1st appellate court rightly divided the properties as the evidence adduced was watertight that the properties were acquired during the subsistence of their marriage and that there were joint efforts in their acquisition. The money for acquiring the properties was obtained after selling the farm produce obtained through joint farming. Even the house was acquired through the same way and not after selling the cattle which the appellant inherited from his deceased father. She prayed that the appeal be dismissed and the decision of the first appellate court be upheld. I have carefully considered the grounds for appeal, the record from the lower courts and the submissions of the parties. I shall now proceed to determine the appeal. As held by the lower courts, the court's power for distribution of matrimonial assets is derived from Section 114 (1) of the Marriage Act, Cap 29 R.E 2019 which states that: "The court shall have power, when granting or subsequently to the grant of a decree of separation or divorce, to order the division between the parties or any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset Page 3 of 6 and the division between the parties of the proceeds of sale". Subsection (2) of this provision sets out the criteria to be taken into account in the division of the matrimonial assets and requires the court to consider among other things, the extent of the contributions made by each party in terms of money, property or work towards the acquisition of the assets. Subsection 3 highlights further that, for purposes of distribution of matrimonial assets, assets acquired during the marriage include assets owned before the marriage by one party but substantially improved during the subsistence of the marriage by the other party or by their joint efforts. In the present case, save for the house, the lower courts had a consensus on the joint acquisition of the matrimonial assets distributed between the parties. They however differed on the extent of contribution and the shares that the parties should get. The trial court was of the view that both parties had equal contributions hence, awarded them equal shares. Inversely, the first appellate court found the respondent's contribution less than the respondent's hence a reduction of her share. The extent of contribution in the acquisition of matrimonial assets is, undisputably, a critical aspect in assessing the division of matrimonial assets between spouses in a broken marriage and this, as held by the Court of Appeal while interpreting the provision of section 114 of the Law of Marriage Act in Yesse Mrisho vs Sania Abdul, Civil Appeal No. 147 of 2016 [2023] TZCA 215 TanzLII. Accordingly, since the respondent herein was the one alleging to have contributed to the acquisition of the above listed matrimonial assets, she was duty-bound to prove her extent of contribution. Page 4 of 6 The lower court record shows that, while testifying in the trial court the respondent told the court that they were jointly farming and that they acquired the assets using the proceeds of the farm produce which suggested that her contribution was substantial. Her sole witnesses had a similar story. He even recounted how the appellant who is his father used to tell him how he (the appellant) and the respondent acquired the assets jointly. The appellant's story was that the couple did not jointly acquire the matrimonial properties. Rather, he inherited them from his late father and for the houses, he stated that they were constructed after the respondent left the matrimonial home. His two witnesses stated that the appellant inherited the assets but when asked whether they had an idea of what assets were jointly acquired, they admitted that they had no idea. By dividing the assets between the parties, the lower courts acknowledged that the assets were jointly acquired hence, subject to distribution. It is settled law in our jurisdiction in the second appeal, the court should rarely interfere with concurrent findings of facts by two courts below save where there are mis-directions or non-directions on the evidence, or where there was a miscarriage of justice or a violation of some principle of law or practice (see Shakila Lucas vs Ramadhani Sadiki (Civil Appeal no. 349 of 2020) [2024] TZCA 36 TanzLII. I will, therefore, confine myself to the extent of contribution and the ratio that the parties deserve. Although the respondent did not quantify her contribution, her testimonial that the assets listed were acquired through the farm produce jointly Page 5 of 6 cultivated, suggests that they had a similar contribution. PW2 (their son) who was her sole witness testified that the parties acquired 30 cattle, 40 goats, 30 sheep that they acquired the same through joint farming. The testimony of these two witnesses as to respondent's contribution was not challenged. Thus, I find it to have been established that the respondent had a substantial contribution to the acquisition of the assets above. As for the house, which as per the appellant's evidence was built between 2017 and 2019 when the parties had already separated, I concur with the first appellate court that the respondent did not prove her contribution to their acquisition. That said I see no reason for reversing the decision of the first appellate considering also that as stated by the first appellate court, the domestic roles of the respondent also deserve consideration in apportioning the shares. In the circumstances, I uphold the decision of the first appellate court and dismiss the appeal for lack of merits. No order as to costs. DATED and DELIVERED at Dodoma this 29th day of August 2024 J.L. MASABO JUDGE Page 6 of 6