martha mhewa vs fed mtuluwa 2023 tzhc 21737 12 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) ATIRINGA PC MARTIMONIAL APPEAL NO. 1 OF 2023 (Arising from Matrimonial Appeal No. 12/2020 of the District Court o f Njombe at Njombe before Hon. MJ. Kayombo, SRM, Original Matrimonial Cause No. 21/2020 of the Primary Court o f Njombe District at Njombe Urban before Hon. C.J. Mwananzumi, PCM) MARTHA MHEWA............................................................APPELLANT VERSUS FED MTULUWA ............................................................RESPONDENT JUDGMENT If f 1August & 12th October, 2023 I.C MUGETA, J: The appellant cohabited with the respondent from 2011 and acquired a status of husband and wife. They were blessed with four issues. Unfortunately, their relationship turned sour. The appellant petitioned for divorce before the Primary Court of Njombe District at Njombe Urban (the trial court). Upon hearing the parties, even if not explicitly stated, the trial court was satisfied the marriage was presumed, it granted divorce. Consequently, it awarded the appellant a four-room mud house situated at Kambarage street whereas the respondent was awarded two houses, one at Kambarage Street (big house) and another one at Igagala village. The appellant was granted Page 1 of 12 custody of the three younger children. However, the trial court did not make an order for maintenance of the said children. Aggrieved by the trial court's judgment, the appellant appealed to the District Court. The main complaints were on the division of matrimonial properties and maintenance of the children. The 1st appellate court advised the appellant to make a fresh application on the maintenance of the children. The first appellate court did not disturb the trial court's division of matrimonial properties. Believing that justice has not been served, the appellant filed her appeal to this court on seven grounds. However, during hearing she abandoned the 1st, 2nd and 7th grounds. The remaining grounds can be summarized as follows: 1. The 1st appellate court failed to uphold the decision of the trial court on division of matrimonial properties. 2. The 1st trial court erred in delivering the judgment on the date other that that was appointed and notified to the parties. 3. The 1st appellate court erred in law and facts by failing to impose the respondent with legal duty of maintaining the children. Page 2 of 12 In supporting her 1st ground, the appellant submitted that the distribution of the properties was unfair as she ought to have been given the matrimonial house taking into consideration her contribution to the construction of the said house. She argued that she was engaged in chicken and pigs rearing, running a cafe and farming businesses where she earned money that was used to run the family. By that income, the appellant submitted, she added a four roomed mud house for the purpose of animal keeping which is the house she was given. She contended further that she deserves to be given two acres which she brought out of the five acres of pine trees farm which was given to the respondent. The appellant's other grievance is on the Tshs. 20,000,000/= which was in their joint bank account. She urged the court to award her Tshs. 5,000,000/= so that she could start a business. In her view, the respondent ought to have retained the house at Igagala only where he lives with his parents. On the 2nd ground, she submitted that the trial court delayed in delivering the judgment without justifiable reasons and delivered it without her notice. Further, on the last ground she argued that the 1st appellate court failed to order the respondent to maintain the children. Page 3 of 12 The respondent's counsel resisted the appeal. In his view, this court has no jurisdiction to entertain the appellant's 1st ground as it is based on evaluation of evidence which did not feature in the 1st appeal before the District Court. To support his argument, he cited the case of Hadija Ally v. George Masunga Misingi, Civil Appeal No. 384/2019, Court of Appeal - Dar es Salaam where it was held that matters not raised at the 1st appellate court cannot be raised at the second appellate court. In the alternative, he submitted that the respondent did not point out any violations by the trial and 1st appellate court. In his view, the appellant has given new evidence at this level. On the 2nd ground, the learned counsel submitted that the proceedings culminated on 25/06/2020 and the judgment was delivered on 27/7/2020. Thus, the judgment was delivered within time. On the last ground, he submitted that the respondent has been maintaining the children. In rejoinder, the appellant reiterated her submissions in chief. In disposing of the appeal, I will discuss the grounds as argued by the parties. The main complaint in the 1st ground is distribution of properties acquired jointly by both parties. I do not agree with the Page 4 of 12 respondent's counsel that this is a new ground not raised at the 1st appellate court. The record shows that the appellant has all along been complaining on the distribution of the jointly acquired properties. This was the 2nd ground of appeal in her petition of appeal before the District Court. The only difference is the wording of the grounds. From the evidence before the trial court, the appellant testified to have built the three houses together with the respondent. She testified further that they owned a 5 acres trees farm at Igagala, one motorcycle and had Tshs. 20,000,000/= in their joint account. After this evidence the respondent is recorded saying: "Mdaiwa: Nakubaliana na maeiezo yaliyotolewa na mdai ni ya kweti" Upon that statement, the case was fixed for judgment on 4/6/2020. The proceedings of 4/6/2020 are somewhat controversial. The respondent is recorded absent and one Kado Godfrey Mtuluwa reported that he was suffering from diarrhoea. Then the case was adjourned to 10/6/2020. However, immediately thereafter, the respondent is reported saying: "Kuhusu mali ninaomba nitoe maelezo yangu kwa sababu mdai hajataja mali zote". Page 5 of 12 Then the defence case started. The respondent listed additional properties as 8 acres of timber tress on the land given by his in laws at Usalule, a shop worth Tshs. 7,000,000/=, M-Pesa business worth Tshs. 3.000.000/= and "mgahawa" worth Tshs. 3,000,000/=. Regarding Tshs. 20.000.000/= in their joint account he testified that the money was spent by the appellant to buy 2 "bodaboda" and to start the appellant's shop, M-Pesa and Mgahawa businesses. That he remained with Tshs. 700,000/= only. The respondent summoned Yasinta Mlyuka (SU2) to support him about the tree farm at Usalule. This was on 15/6/2020. Her evidence, however, shows that the appellant cultivated that land before she got married and after she married the appellant, SU2 saw her planting the trees in the absence of the respondent. Even when cross examined by the respondent, she maintained that she never saw the respondent planting the trees. It appears to me that the respondent testified on 10/6/2020 not 4/6/2020 but the trial magistrate did not record the coram for the day. This conclusion draws support from the fact that the evidence of the respondent (SMI) is signed for 10/6/2020. It is not clear how and why the trial magistrate reopened the proceedings after they were scheduled for judgment. Page 6 of 12 For the sake of justice, with view of having the dispute between the parties settled, I shall tolerate the guff in the proceedings of 4/6/2020 by assuming that the evidence of the respondent was taken on 10/6/2020 the learned trial magistrate inadvertently failed to record the coram and to state reasons for reopening the proceedings. This error did not prejudice any party nor occasioned a failure of justice. Therefore, they are tolerable under section 37(2) of the Magistrates Courts' Act [Cap. 11 R.E 2022]. In its judgment, the trial court did not discuss fully nor divided all the properties listed by the respondent as additional properties beside those listed by the appellant. I can't condemn the trial court by taking that course because the evidence of the respondent was an afterthought. He never, cross examined the appellant on those properties to form a basis for tendering evidence about their existence. In the petition for divorce the appellant listed the following properties as matrimonial assets: three houses, a five acres trees farm at Igagala, and motorcycle. On 22/5/2020, the petition was read to the respondent and this is what was recored: "Mahakama: Mdaiwa amesomewa madai yake kwa lugha anayoifahamu naye anajibu kwa maneno yake mwenyewe. Page 7 of 12 Madai hayo ni ya kweli ndoa yetu ivunjike na tugawane ma/i zetu" This admission without any addition estops the respondent to list other properties after the petitioner/appellant testified. Therefore, properties subject of the litigation are just those listed in the petition. Back to the issue of division of the matrimonial properties. This is second appellate court. Its functions are limited to matters of law not facts. Edwin Mhando v. R [1980] T.L.R 174. The appeal is against concurrent findings of the two lower courts. The principle was were such finding can be interfered with was stated in Amratlal D.M t/a Zanzibar Hotel [1980] T.LR 31 that: "An appellate court should not disturb concurrent findings o f fact unless it is clearly shown that there has been a misapprehension o f evidence, miscarriage o f justice or a violation o f some principle of law or practice" The evidence of the appellant that she participated fully in the acquisition of the properties is unchallenged. In that regard the trial court ought to have divided the properties equally between the parties. The first appellate court held, without assigning reasons, that not in all cases the properties ought to be divided equally. I agree with her but reasons must be given were the evidence is overwhelming that each Page 8 of 12 party made substantial contribution like in this case. I find no reasons why in this case the properties should not be divided equally. In this regard, both the trial court and the first appellate court misapprehended the evidence which is sufficient reason for me to interfere with their concurrent finding. The properties which the appellant listed and the respondent admitted as matrimonial assets are three houses, a 5 acres trees farm, a motorcycle and Tshs. 20,000,000/=. However, Tshs. 20,000,000/= which appears in evidence was not listed in the petition. The appellant cannot be allowed to benefit from evidence which departs from the pleadings. The trial court said nothing about this evidence. I cannot fault it. Regarding the houses, the trial court visited the locus in quo and described their status. The description of the lone house at Kambarage which was given to the appellant shows it is of the lowest grade among the three. This is unacceptable considering her contribution in their acquisition. While I uphold the decision that the respondent retain the house at Igagala, I award the appellant the finished 11 rooms house at Kambarage. The remaining 4 rooms house at Kambarage shall be sold Page 9 of 12 and the proceeds thereof be divided equally between the parties with option of one to buy out the other after the house has been valued. Regarding the trees farm at Igagala, the appellant testified that it measures 5 acres and that when they married, the respondent had 3 acres and they added 2 acres. It means they jointly acquired 2 acres, therefore, the appellant is entitled to 1 acre only of the trees at Igagala. The 1 motorcycle is given to the appellant. For the foregoing, I find merits in the first ground of appeal. I allow it. Regarding the judgment being delivered on unappointed date without notice to the appellant, I find merits in this complaint too. After the respondent testified, the case was fixed for judgment on 16/7/2020. However, it was not delivered until on 29/07/2020. The same does not show if it was read to any of the parties. This, indeed, is an irregularity but it never prejudiced any party or occasioned failure of justice. However, it is a good practice that a judgment should always show its delivery date and before whom it has been delivered. Counsel for the respondent misconceived the second complaint by thinking it was about the judgment being delivered beyond the prescribed 90 days. Page 10 of 12 On maintenance, the district court ordered the appellant to file a fresh application. The appellant had petitioned for divorce, division of the matrimonial properties and maintenance of the children. The trial court did not address this issue at all despite ordering the appellant to have custody of 3 issues. The learned first appellate court magistrate might have avoided to face it head on because there is no evidence on record about the means of the parties. However, it was not right for her to order filing of a fresh case instead of directing the trial court to obtain evidence from the parties and decide the issue. I direct the trial court to require the parties to give evidence on maintenance and decide the issue of maintenance considering the current status of the age of the children and the place where they stay. The learned counsel for the respondent submission that the respondent maintains the children might be true but the complaint is that no such order was made to compel him which is a fact. The third complaint has merits too. Finally, a word about the general conduct of the trial. The trial commenced without framing of issues. This might be the reason the trial magistrate over looked the issue of maintenance in its judgment. I have considered this defect and I am of the view that it did not occasion any failure of justice nor prejudiced any part as finally, except for the issue Page 11 of 12 of maintenance, other pertinent issues of divorce, custody of the children and division of the matrimonial assets were addressed. For the foregoing, the appeal succeeds. No order as to costs. I.C. MUGETA , JUDGE ^ 12/ 10/2023 Court: Delivered in the presence of the appellant in person and Mr. Innocent Kibadu, learned advocate for the respondent. Sgd. MALEWO M.A. DEPUTY REGISTRAR 12/ 10/2023 Page 12 of 12