CIVIL APPEAL NO 63 OF 2023 matrimonialproperties

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL NO 63 OF 2023 (Arising from the District Court of Arumeru in Matrimonial Cause No 3 of2023) MARTIN RICHARD DORIYE........................................... APPELLANT VERSUS TIZIA ELISA MENA BASENER alias TIZIA ELISA DORIYE................................................... RESPONDENT JUDGMENT 15th May & 5th July 2024 Masara, J The Appellant and the Respondent contracted a civil marriage on 24th February 2016 and lived happily for a while before their marriage turned sour due to endless fights and mistrusts between them. While the Appellant alleged adultery against the Respondent, the Respondent, on her part, alleged lack of responsibility on the part of the Appellant towards her and their children. 11 After hearing, the trial court was satisfied that the marriage between the two had broken beyond repair. A decree of divorce was issued and the trial court ordered division of matrimonial properties. It also dealt with custody of children and maintenance. The Appellant did not agree with some aspects of the trial court's judgment, he has preferred this appeal on five grounds as hereunder verbatim reproduced: 1. That, the trial magistrate erred in law and in fact by granting the respondent what was not pleaded in the petition of divorce. 2. That, the magistrate erred in law and fact by dividing properties which are not matrimonial properties to the parties. 3. That, the trial magistrate erred in law and in fact by dividing a company limited by share and Non Governmental Organization as matrimonial assets. 4. That, the trial magistrate erred in law and in fact by granting the respondent what she did not pray for no give evidence to as part of division of matrimonial assets. 5. That, the trial magistrate erred in law and in fact by dividing motor vehicle to the parties make Toyota Land cruiser which do not have registration numbers for proper identification of the said assets. When the matter was called for hearing, Mr Said Said, learned advocate, appeared for the Appellant while Mr Amani Shirima, learned advocate, appeared for the Respondent. Hearing of the appeal proceeded viva voce. 2 | P Submitting in support of the Appeal, Mr Said consolidated grounds 1 and 4, grounds 2 and 3 while ground 5 was argued separately. On grounds 1 and 4 of the Appeal, Mr Said was of the view that it is a cardinal principle of law that a court can only grant reliefs prayed for. He backed up that position with the decision of the Court of Appeal in Dr Abraham Israel Shuma Muro vs National Institute for Medical Research and Another, Civil Application No 68 of 2020. Mr Said argued that the Respondent, at the trial court, prayed for the division of an NGO as well as Nyumbani Hostel Company as part of the matrimonial properties which was not in order. Mr Said was of the view that a company cannot be considered to be a matrimonial property as it has its shareholders and directors who were not part of the matrimonial proceedings. Incidentally, the Respondent had not mentioned those properties in her petition. It was Mr Said's conclusion that the trial magistrate erred in dividing those properties. He went on to state that under section 114(1) of the Law of Marriage Act (LMA), the court upon granting the decree of divorce between parties is enjoined to inquire on the matrimonial properties acquired by parties during the existence of the marriage by their joint efforts. Mr Said referred to the Court of Appeal decision in the 3 | Paf case of Sixbert Bayi Sanka vs Rose Nehemia Samzuqi, Civil Appeal No. 68 of 2022, where it stated that: "Parties are enjoined to explain properties jointly owned and the extent of contribution, so as to inform the division." Reverting to the case under consideration, Mr Said submitted that the Respondent, in her evidence, did not establish the existence of those properties or her contribution towards the acquisition of those properties and or when the said properties were acquired. According to the learned advocate, the same applied to properties mention in items 1 to 4 of the Petition. That, notwithstanding the absence of proof of existence and extent of contribution, the trial magistrate proceeded to distribute the said properties, contrary to what was held in the case of Dr Olivia Michael Kimaro vs Dr Derick David Nyasebwa, HC Civil Appeal No. 51 of 2022, where the Court ruled that properties not proved during the trial cannot be divided as that is a contravention of section 114(1) of LMA. On grounds 2 and 3 combinedly, Mr Said submitted that the trial magistrate erred in distributing properties not jointly owned by parties; to wit, Nyumbani Hostel Company and the NGO which were allocated to the Respondent and Appellant respectively, as those properties are separate legal entities and not matrimonial assets. 4 | Page Submitting on ground 5 of the Appeal, Mr Said conferred that in paragraph 11(5) of the Petition, the Respondent just mentioned the motor vehicle and at page 10 of the proceedings the Respondent agreed that she did not indicate the registration number of the said motor vehicle. That, there was no proof of ownership of the motor vehicle considering that no registration cards were shown by the Respondent; thus, by granting those vehicles to the parties renders the said decree inexecutable, as the Toyota land cruiser with no registration number cannot be identified. That it was wrong for the trial court to believe mere words from the Respondent which may lead to a division of properties belonging to other parties thus causing chaos. Basing on the submission made, the Appellant's counsel prayed that the Appeal be allowed with no orders as to costs. In response, Mr Shirima did not contest that Nyumbani Hostel is a company which is a separate entity. He also conceded that the NGO should not have been divided as matrimonial assets since both parties herein are shareholders in both entities. With regard to the proof of properties, Mr Shirima submitted that at paragraph 11 of the Petition the house at Siwandeti was proved. That there was no dispute, as per paragraph 4 of the Petition, that the two got married on 24/02/2016; hence, properties acquired in 2018 are part sI of the matrimonial properties. That the two lived in the said house until 2022 when they separated. He was thus of the view that the 40% awarded to the Respondent was justified. Regarding the two pieces of land close to the matrimonial home, Mr Shirima submitted that the same were not correctly identified but were awarded to the Appellant which was improper. Mr Shirima did not proffer any different argument regarding grounds 2 and 3 of the Appeal on the ground that the two are the same as grounds 1 and 4. He thus urged the Court to consider his arguments given with regard to grounds 1 and 4. Regarding ground 5 of the Appeal, Mr Shirima acceded to the fact that the two vehicles were not properly identified and therefore should not have been divided between the parties. That, with the exception of the House at Siwandeti the Respondent did not challenge the Appeal. In his rejoinder, Mr Said contested the argument made by Mr Shirima on the house. He was of the view that a petition is just an allegation which cannot be taken to be a proof of joint efforts. That the allegation was not backed up with the proceedings; specifically, the evidence in page 8 where the Respondent stated that she did not want the house at Siwandeti but the trial magistrate awarded her 40 % of the same house. 6 | Page I have considered the records, ground of appeal and submissions by Counsel for the parties. The pertinent issue for determination is whether the Appeal herein is merited. The evidence from the records show that parties lived happily after their marriage and they acquired a house at Siwandeti which they lived in as the matrimonial house until on 1/12/2022 when they separated and the Respondent moved out of the matrimonial house. The dispute between the two, as per the claims of the Respondent, started when the Appellant started to take excessive alcohol which turned him to an irresponsible man, who habitually started to portray cruel behaviour to the Respondent. On the other side, the Appellant's claimed that the Respondent was cheating on him and was disrespecting him before their children, an act that made the Appellant to punish her as a warning. It is not in dispute that during the subsistence of their marriage they acquired some properties. The issue is whether those properties are subject to division as matrimonial properties. I will start with the house at Siwandeti. The Appellant submits that the said house should not have been divided as it is his personal property considering that the Respondent did not prove her contribution towards 7 | its acquisition or whether it was acquired during the existence of the marriage. He also backs his position with the fact that the Respondent, in her testimony specifically stated that she did not want the said house. On the other hand, the Respondent is of the view that the trial magistrate was correct in dividing the said house between the two as the said house is a matrimonial house. It is normative that anything acquired during the subsistence of a marriage becomes a matrimonial property unless the opposite is proved. However, the law has set the criterion when it comes to division of matrimonial properties. Section 114 of the Law of Marriage Act, Cap. 29 R.E 2019 provides as follows: "(1) 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 their joint efforts or to order the parties of the proceeds of sate. (2) In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and 8 | P (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts." From the above provision, it is basically important for a party claiming division over any property to prove three important facts: one, that the said property is a matrimonial property; two, that the property was acquired by joint efforts and lastly, how much each party contributed to the acquisition of the said property (the extent of contribution) See Bi Hawa Mohamed vs Ally Seifu [1983] TLR 23. The Court of Appeal in the case of Tumaini M. Simonga vs Leonia Tumaini Belanga (Civil Appeal No. 117 of 2022) [2023] TZCA 249 Tanzlii cited with approval the decision in Gabriel Nimrod Kurwijila vs Theresia Hassani Malongo (Civil Appeal No. 102 of 2018) where it was held that: "...when the court is faced with a predicament of division of matrimonial assets or properties, the extent of contribution is of utmost importance to be determined. In so doing, the court always rely on the evidence adduced by the parties to prove the extent of contribution." 9I In the matter at hand, the trial court, despite the Respondent's position that she was not interested with the only matrimonial house owned by the parties, went ahead and divided the said property to the Respondent and the Appellant at the rate of 40% and 60% respectively. The authorities cited above enjoin every court, while dealing with the distribution of matrimonial asset, to give regards to the evidence laid down by the parties towards the extent of contribution of the said property. In the appeal under consideration, it is not disputed that the Respondent only pleaded under paragraph 11 of the Petition that during the subsistence of their marriage they acquired matrimonial properties and mentioned their matrimonial house located at Siwandeti. In the Petition, the Respondent, in addition to the prayer for dissolution of the marriage, she also prayed for division of their matrimonial assets. Further, in her evidence before the trial court, specifically at page 8 of the trial court typed proceedings and in the original hand written proceedings, the Respondent reiterated her prayers. For easy of reference, I reproduce hereunder what she stated: "I took care of the children on my own. We have been fighting all the time. I want to work by myself and stay with my kids. That is why I want a divorce and matrimonial assets distribution. About a matrimonial house at Siwandeti, I do not want it, two pieces of land nearby the matrimonial house, I do not want them. The 10 I P a g e assets under paragraph U(i)(ii) and(iii) I am not interested with them." It is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are cogent and good reasons for not believing the witness. Those reasons may include the fact that the witness has given an improbable or implausible evidence, or the evidence has been materially contradicted by another witness or witnesses. See the case of Ally Ngozi vs The Republic (Criminal Appeal No. 216 of 2018) [2020] TZCA 1786 Tanzlii. In this Appeal, Counsel for the Respondent submitted that, since the Respondent pleaded under her Petition before the trial court that they were married on 24/2/2016, properties acquired in 2018 are matrimonial properties. He went on to state that since the two lived in the said house until their separation in 2022, then the 40% awarded to the Respondent is justified. In adjudicating this issue, the law is settled that, in civil litigation, the parties' pleadings set a road map of their cases and are binding upon them. The function of pleading is to give notice of the case which has to be met. See the case of Indo- African Estate Ltd vs District Commissioner for Lindi District & Others (Civil Appeal No. 90 of 2023) [2024] TZCA 450 Tanzlii. 11 I Page In this case, the Respondent, other than stating that she did not want some properties, she did not proffer evidence to prove the extent of her contribution towards the acquisition of the matrimonial properties. The trial court had no basis to award her a portion of the property. I note that there was no any evidence laid down by the Respondent before the trial court evidencing that the said house is a matrimonial home, that the same has been obtained during the subsistence of their marriage and or the extent of her contribution. Having said so, I find merit in grounds 1 and 4 of the Appeal. With regard to ground 2 and 3 of Appeal, the Appellant urges this Court is to decide that the trial court erred in distributing properties not jointly owned by the parties; that is to say Nyumbani Hostel Company as well as an NGO called VIVA. The Respondent acceded to this fact. Section 15(2) of the Companies Act, Cap. 212 provide a general legal principle that, after incorporation, a limited liability company becomes a legal person of its own, separate and distinct from its directors and shareholders. Since a company is a legal person with powers to sue and be sued on its own capacity then it was wrong for the trial court to divide the company to the parties herein. There is consensus among the parties herein that the decision of the trial court in this regard was a serious misdirection. The same argument applies to an NGO which after 12 | P a g e incorporation it cannot be considered to be a matrimonial property even where the couple happens to be founders of the same. That said, I find merit in grounds 2 and 3 of the Appeal. On ground 5 of the Appeal, the issue is whether the trial court was legally justifiable to divide the motor vehicle with no registration number to the Respondent as her share of the matrimonial assets. It is well known position of law that, in civil cases, the burden of proof is on the claimant on a balance of probabilities. That is as per section 110 of the Evidence Act, Cap. 6 [R.E 2019]. In a matrimonial matter, for an asset to be termed as a matrimonial asset or otherwise is a question of evidence. It is undisputed that the Respondent in her petition for divorce only mentioned that they had motor vehicles jointly owned and the trial magistrate proceeded to divide the said vehicles; namely, Toyota Noah to the Respondent while a car make Land Cruiser was granted to the Appellant herein. In normal circumstances, the Respondent was duty bound to prove the existence of the said vehicles and give detailed descriptions of the same, by stating the registration numbers of the said vehicles and proper proof of the same in order to assist the trial court to distribute the same. As correctly submitted by Counsel for parties and on the basis of the decision in the case of Dr Olivia Michael Kimaro (Supra), the court 13 | P a g e cannot order division of the alleged matrimonial properties whose existence is not proved before the trial court. Thus, this Court finds that the trial court erred in dividing properties not identified or proved before it. From the foregoing, this Appeal succeeds in its entirety. The trial court order granting to the Respondent 40% of the house located at Siwandeti is hereby quashed and set aside and in lieu thereof the said house is allocated exclusively to the Appellant herein. Likewise, the order allocating Nyumbani Hostel Company as well as an NGO called VIVA to the parties is set aside. Further, the order allocating motor vehicles to the parties herein is rescinded and set aside. Other orders of the trial court remain undisturbed. This being a matrimonial matter, I direct that each party bears its own costs. DATED at ARUSHA this 5th day of July 2024. asara JUDGE Right of Appeal explained to the parties. 14 | 'a :