MATHIAS NKWABI vs MCHELE LUBAO MAHUSHI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LAND APPEAL NO. 4548 OF 2024 (Arising from Land Application No. 98 of 2022 of Kahama District Land and Housing Tribunal for Kahama) MATHIAS NKWABI KABISI………………….……….……………….. APPELLANT VERSUS 1. MCHELE LUBAO MAHUSHI 2. LUCIA MAKOYE MADAKO 3. ROBERT PETER GISUNTE ………………….. RESPONDENTS 4. TIMOTHEO MAGEMBE MAYUNGA 5. SHASHNHALE JUDGMENT Date of Last Order 10.06.2024 Date of Judgment: 23.08.2024 MWAKAHESYA, J.: In the District Land and Housing Tribunal for Kahama (the DLHT) the appellant, Mathias Nkwabi Kabisi, unsuccessfully sued the respondents claiming ownership of a piece of land measuring 64 acres (the suit plot) located in Kakola village, Bulyanhulu Ward, Kahama District – Shinyanga Region. The brief facts are that, the appellant and the second respondent were husband and wife, having contracted a customary marriage in 1981. 1 During the subsistence of their marriage they managed to obtain a number of possessions including landed property. Later on, their marriage turned sour leading to the second respondent petitioning for divorce in Matrimonial Cause No. 31 of 2019 at Lunguya Primary Court (the Primary Court). The Primary Court granted a decree of divorce and ordered division of matrimonial property. After finalizing the divorce, the appellant was surprised to find the third and fourth respondents occupying part of the suit plot, the same claiming to have purchased it from the second respondent, a sale overseen by the fifth respondent who is a court broker. The second respondent did not refute that she is the one who sold 32.1 acres of the suit plot to the third and fourth respondents, claiming that it was her share of the matrimonial property divided by the Primary Court in Matrimonial Cause No. 31 of 2019. This prompted the appellant to file Land Application No. 98 of 2022 at the Kahama District Land and Housing Tribunal (the DLHT) which decided in favour of the respondents. Aggrieved, the appellant has filed the present appeal based on five grounds which are to the effect that: 1. That, the trial learned chairman erred in law and fact when she held that the suit land was among matrimonial properties listed in the division of the matrimonial properties in Matrimonial Cause No. 2 31/2019 while the same was not part of the said division of the matrimonial properties; 2. That, the trial learned chairman erred in law and fact when she failed to consider that the suit land measuring 64.2 acres (surveyed) with Customary Right of Occupancy Na. 53/KHM/KKL/001 was not contested in Matrimonial Cause No. 31/2019 of Luguya Primary Court; 3. That, the trial learned chairman erred in law and fact when she treated the suit land as part of the division of matrimonial properties made in Matrimonial Cause No. 31/2019 while the same is not an appellate court; 4. That, the learned chairman erred in law and fact when she held that the names of the appellant in the Customary Right of Occupancy do not remove the right of the 2 nd respondent in respect of ownership of the suit land while the same are not living as husband and wife, also a marriage cannot operate to change ownership of registered property which is in the name of the appellant; and 5. That, the trial learned chairman erred in law and fact when she failed to consider contradictory judgment of Lunguya Primary 3 Court in Matrimonial Cause No. 31/2019 and the evidence of the 2nd respondent in respect of the size and location of the suit land. The 1st, 3rd and 4th respondents, having been duly informed of the appeal and served with the memorandum of appeal, decided not to show up. Thus, I ordered the appeal to proceed ex parte against them. Meanwhile, by consensus, the appeal was to be argued by way of written submissions in accordance with the following schedule: the appellant’s submission in chief, to be filed on or before 02.05.2024; the 2 nd and 5th respondent’s reply, on or before 13.05.2024; and the appellant’s rejoinder (if necessary) by 20.05.2024. The appellant filed his submission in chief accordingly, the 2 nd respondent filed her reply on 09.05.2024 but paid the filing fees on 27.05.2024. Meanwhile, the 5th respondent did not bother to file his reply at all. In light of the same and considering that the date of filing a document in Court is deemed to be the date when the prerequisite Court fees is paid, I will only consider the appellant’s submission in chief. Submitting on the first ground of appeal, the appellant submitted that the judgment of Lunguya Primary Court in Matrimonial Cause No. 31/2019 does not list the suit land measuring 64.2 acres (Surveyed) with Customary 4 Right of Occupancy No. 53/KHM/KKL/001 as one of the matrimonial properties when dealing with the division of the matrimonial properties. It is appellant’s submission that since the suit land was not among matrimonial properties listed in the division of the matrimonial properties in Matrimonial Cause No. 31/2019, the Hon. Chairman of the DLHT was wrong to hold that the same was among matrimonial properties subject to division between the parties to Matrimonial Cause No.31/2019. A similar argument was made by the appellant when submitting on the second ground of appeal. On the third ground of appeal, it is the appellant’s contention that, the Hon. DLHT Chairman erred in law and fact when she treated the suit land as part of the division of the matrimonial properties made in the Matrimonial Cause No.31/2019 while she was not sitting as an Appellate Court, and had the second respondent not been satisfied with the decision of the Primary Court, she ought to have preferred an appeal or revision in a proper forum. On the fourth ground of appeal, the appellant submitted that, a marriage cannot operate to change ownership of registered property which is in the names of the appellant. 5 The appellant cited the Court of Appeal decision of Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of 2016 (unreported), where the Court held that: “…………From the stated provision and cased cited above, it is clear that, proof of marriage is not only factor for consideration in determining contribution to acquisition of matrimonial assests as propound by second appellate court. Therefore, with due respect, we are of the view that, the assertion by the second appellate judge that once marriage is established between the parties and where there is dispute on matrimonial property then the question of establishing each of the parties to the acquired matrimonial property is not an issue is misconceived, and contrary to the provision of the law guiding on distribution of the matrimonial properties….” On the fifth and final ground of appeal, it was the appellant’s submission that, at page 14, of the typed judgment of the DLHT it reads: - “Baraza limepitia hiyo hukumu ambapo mingoni mwa mali zilizoolozeshwa ni shamba la ekari 64 lililopo kijiji cha Kabale...” The appellant is adamant that, it is clear that there is contradiction between the judgment of the Primary Court and the evidence adduced by the 2nd respondent before the DLHT in respect of the size and location of the suit land where she testified that, the disputed land measuring 64.2 acres (surveyed) with Customary Right of Occupancy No. 53/KHM/KKL/001 located at Kakola Village was among properties listed in the division of the matrimonial properties in Matrimonial Cause No. 31/2019. 6 He submitted further that, since the said contradictions affect the credibility of the 2nd respondent therefore, the evidence of the same in respect of the suit land should have not been acted upon to declare her the lawful owner of 32.1 acres of part of the disputed land allegedly allotted to her by the Lunguya Primary Court vide Matrimonial Cause No. 31/2019. The appellant cited the Court of Appeal decision of Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004 (unreported) where it was held that: “Good reasons for not believing a witness including the fact that the witness or witnesses has given improbable evidence, or the evidence has been materially contradictory by another witness or witnesses”. Thus, he prayed for this court to allow the appeal. Having gleaned at the record and the appellant’s memorandum of appeal and subsequent submission, I shall now proceed to determine the appeal. The appeal boils down to one thing, that is whether the land in dispute was amongst the matrimonial properties ordered to be divided between the appellant and the second respondent by the Primary Court in Matrimonial Cause No. 31 of 2019, the DLHT having found the issue in the 7 affirmative. I quote the relevant part of the judgment of the DLHT, at page 15, it reads: “Nimezingatia pia maoni ya wajumbe wa baraza ambao walishauri kuwa eneo la mgogoro ni mali ya wanandoa kama walivyogawiwa katika shauri la ndoa Na. 31/2019 kutokana na uchambuzi (sic) hapo juu ninatupilia mbali maombi haya”. This passage can conveniently be translated as “ I have considered the opinion of the assessors stating that the land in dispute is amongst the matrimonial properties divided in Matrimonial Cause No. 31/2019 and thus I dismiss this application.” The judgment in Matrimonial Cause No. 31 of 2019 was tendered by the appellant, in the DLHT, as exhibit “P3” on 04.10.2023. At page 3-4 of the said judgment, the Hon. Magistrate listed (at page 2-3), the following as matrimonial properties listed by the second respondent: two houses at Kabale village; a house at Shunu Street – Kahama; a house at Phantom Street – Kahama; two plots at Kakola Village, both of them having several houses; four plots of land at Manzese – Kahama; a farm measuring 64 acres at Kabale Village in Kakola; a farm measuring 10 acres at Kakole; a farm measuring 12 acres at Itetemya Village, Kashishi Ward; a farm measuring 40 acres at Butunga Village; land measuring two acres at Kakola 8 Bulyanhulu; Four plots of land at Magwanji- Kahama hosting two houses; etc. The Primary Court went on to divide the matrimonial properties as follows (at page 8): The appellant was given a farm measuring 28 acres at Kabala Village, Msalala – Kahama; a farm measuring five acres at Kakole – Msalala; a farm measuring six acres at Itetemya – Kashishi; a farm measuring 20 acres at Butunga; two plots of land at Manzese – kahama; a one-acre plot at Kakola, two plots at Magwanji – Kahama; etc. Meanwhile, the 2nd respondent (erstwhile applicant) was given (at page 9): a farm measuring 28 acres at Kabale – Kahama; a farm measuring five acres at Kalole – Kahama; a farm measuring six acres at Itetemya – Kashishi; a farm measuring 20 acres at Butungu; two plots at Manzese – Kahama; a one-acre plot at Kakola; two plots at Magwanji – Kahama; etc. Properties that were to be sold and divided equally were, amongst others: a plot at Kakola which has several houses; four acres of farmland at Kabale; a house located at Shunu; a plot with two houses (one big and one small) a four-acre plot at Kabale; and a house at Phantom – Kahama. 9 There was no mention of the disputed plot in neither parties’ properties allocated by the Primary Court nor amongst the properties to be sold and divided equally. Thus, the contention by the appellant that, the suit land was not among matrimonial properties listed in the division of matrimonial properties in Matrimonial Cause No. 31/2019 and that the same was not part of the said division of the matrimonial properties holds water. The Hon. Chairperson of the DLHT having considered the suit land as amongst the divisible and divided properties in Matrimonial Cause No. 31 of 2019 fell into an error. I thus, find merit in the appeal and allow it with costs. It is so ordered. DATED at SHINYANGA this 23rd day of August, 2024. N.L. MWAKAHESYA JUDGE 10