JUDGMENT Melkion Osmund Kihwili vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA PC. CIVIL APPEAL NO. 20172 OF 2024 (Arising from Mbinga District Court in Matrimonial Appeal No. 13520 of 2024, Original Matrimonial Cause No. 03 of 2024 of Ndengu Primary Court) MELKION OSMUND KIHWILI…...…………………………………………. APPELLANT VERSUS ROZA GERVAS NOMBO…….……………………………………………... RESPONDENT JUDGMENT Date of Last Order: 09/10/2024. Date of Judgment: 07/11/2024. KAWISHE, J.: This is a second appeal between the parties herein. The first attempt was made before Mbinga District Court (the first appellate court) vide Matrimonial Appeal No. 13520 of 2024 which arose from Ndengu Primary Court (trial court) in Matrimonial Cause No. 03 of 2024. 1 The brief background to this appeal runs as follows, that the respondent filed a matrimonial cause before the trial court requesting for division of jointly acquired properties between her and the appellant. After full trial, the trial court found the parties were not duly married. The trial court found the parties were living under presumption of marriage in accordance to the provision of 160(1) of the Law of Marriage Act (Cap. 29, R.E 2019) and proceeded to make orders for division of the jointly acquired matrimonial properties. The respondent was aggrieved by the decision of the trial court and she successful preferred an appeal before the first appellate court. Dissatisfied with the decision of the first appellate court, the appellant filed an appeal before this court. He has knocked the doors of this court armed with six grounds of appeal to impugn the first appellate court’s decision. For easy of reference and clarity, I find it is important to reproduce the grounds of appeal as I hereby do: 1. That, the first appellate court erred in law and facts by deciding the case without considering the evidence adduced by the appellant herein. 2. That, the learned magistrate erred in law and fact by ordering that the farm with 416 coffee trees to be given to the respondent while no contribution was made by her in the acquisition of the said property. 2 3. That, the learned magistrate erred in law for making analysis on assumption rather than the evidence that was taken before the trial. 4. That, the learned magistrate erred both in point of law and fact in deciding the case in favor of the respondent while it did not properly evaluate the evidence on record. 5. That, the learned magistrate erred both in point of law and fact by allowing an appeal in favor of the respondent while her evidence in the trial court was weak. 6. That, the learned magistrate erred both in point of law and fact for ordering division of matrimonial properties without considering the contribution of the respondent in acquisition of the said matrimonial properties. Basing on the above grounds of appeal, the appellant prayed for this appeal to be allowed by quashing the judgment and orders of the first appellate court with costs. Before this court, both parties were unrepresented. They fended for themselves. By the parties’ consent, the appeal was disposed of by way of written submission. Both parties adhered to the orders scheduled by this court. Arguing in support of the first ground of appeal, the appellant submitted that, the first appellate court wrongly decided in favour of the respondent in ordering that the respondent be given a coffee farm with 416 coffee trees while there was no evidence to prove the contribution made by the respondent in its acquisition. He submitted that; the first 3 appellate court assumed that the respondent made some contribution in the acquisition of the coffee farms which is contrary to the Law of Marriage Act (Cap. 29, R. E 2019). He averred that, the respondent was to prove on the balance of probabilities that the coffee farms were acquired by their joint efforts. The second and sixth grounds of appeal were jointly argued by the appellant. His submission was anchored on the division of the coffee farm containing 416 coffee trees. The appellant insisted that, section 114 (2) of the Law of Marriage Act (supra) requires the court to take into consideration the extent of contributions made by each spouse in the acquisition of the matrimonial properties before making an order for division. In his view, the first appellate court failed to abide with that legal requirement. To cement his proposition, he referred to the decision of the Court of Appeal in the case of Gabriel Nimrod Kurwijila vs. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 (TanzLII). In respect to the third and fourth grounds of appeal, the appellant submitted that, for fair adjudication of matrimonial disputes, the court must properly apply the legal principles and critically scrutinize the evidence tabled before it and not to make assumptions. He averred that, the first 4 appellate court’s decision was grounded upon assumption and not by objectively evaluating the testimony given by the parties before the trial court. Moreover, he argued that, failure to make proper evaluation of evidence resulted into a decision without logical reasoning in the division of matrimonial properties. With regard to the fifth ground of appeal, the appellant claimed that, the evidence given by the respondent before the trial court fell short to the legal standards to enable the first appellate court to reach into the decision it made. He stated that, the evidence given by the respondent before the trial court lacks evidential value to prove for the grant of what was granted by the first appellate court. In the event, the appellant prayed for this appeal to be allowed and the decision of the first appellate court in respect to the matrimonial properties be set aside. Countering the grounds in her submission, the respondent resisted the appeal. She argued that, it is a general rule that, the burden of proof is upon the one who alleges on the existence of a certain fact as provided under section 110 (1) of the Evidence Act (Cap. 6, R.E. 2022). The respondent contended further that, the evidence given before the trial court proved that the parties lived as husband and wife from 2014 to 2023 5 and managed to acquire among the properties the three coffee farms. The respondent stated that, the first appellate court was correct in ordering the respondent to be given one coffee farm with 416 coffee trees and the appellant to remain with the other two farms with 819 and 310 coffee trees. She avowed that, the evidence adduced before the trial court properly proved her contribution in the acquisition of the matrimonial properties. She relied on the provisions of section of 114 (2) of the Law of Marriage Act (supra) and the decision made in Zawadi Abdallah vs. Ibrahim Idd, Civil Appeal No. 10 of 1980 (unreported). Furthermore, the respondent submitted that, the first appellate court properly evaluated the evidence given before the trial court and reached to the decision it made. That it was backed up by the heavier evidence given by the respondent in comparison to that of the appellant. She prayed for this appeal to be dismissed with costs and the decision of the first appellate court be upheld. In his short rejoinder submission, the appellant contended that, section 110 (1) of the Evidence Act (supra) is not applicable in Primary Courts and the relevant law is the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations GN. No. 22 of 1964 & GN. No. 66 of 1972. 6 Besides, he argued that, the respondent was the one who alleged that they acquired the coffee farms and one of them was bought but she never even mentioned a person from who the farm was bought. He insisted that, the respondent’s evidence was weak compared to that of the appellant and the respondent failed to prove her contribution in the acquisition of matrimonial properties. He contended that, the first appellate court’s decision was based on an assumption. Finally, he reiterated his prayer made in his submission in chief for the appeal to be allowed with costs and the decision of the first appellate court be quashed. Having judiciously pursued the submissions made by both parties, I find the appellant’s complaints in this appeal are in respect of the division of coffee farm. The appellant is complaining as to why the first appellate court found the coffee farms were jointly acquired by the parties and an order for the division. Therefore, the issue to be answered is whether this appeal has merit. From the appellant’s submission made in this appeal, it is in his view that, the respondent failed to prove that the coffee farms were acquired by their joint effort as her evidence was weaker to prove the same. It is the appellant’s claim that the respondent told the trial court that, one of the 7 coffee farms was acquired through purchase but the respondent failed even to name the person from whom the farm was bought. The respondent denied the appellant’s assertion arguing that, her testimony was clear on the acquisition of the disputed land. It is trite law that, the burden of proof is upon a person who alleges on the existence of facts to prove that those facts exist as per section 110 (1) and (2) of the Evidence Act, (Cap. 6, R.E 2019). In civil matters, such fact is said to have been proved when its existence is established by a preponderance of probability in accordance to section 3 of the Evidence Act (supra). It is in that respect, the Court of Appeal in Godfrey Sayi vs. Anna Siame as Legal Representative of the Late Mary Mndolwa, Civil Appeal No. 114 of 2012 (unreported) held that: "It is similarly common knowledge that in civil proceedings, the party with legal burden also bears the evidential burden and the standard in each case is on a balance of probabilities." Matrimonial cases are among the civil matters. Accordingly, in the determination of the appeal at hand this court will be guided by the above principles. I have scrutinized the submissions made in this appeal and the testimonies given before the trial court and found that, among the 8 properties which were alleged by the respondent to be jointly acquired were the coffee farms. The respondent in her testimony told the trial court that, they lived together as wife and husband and they engaged in agricultural activities and they managed to establish two farms and the third farm was acquired by purchase. Her testimony was corroborated by her father who testified as PW2. In his testimony, the appellant claimed that, the two farms were left by his late father and they are not yet distributed to the lawful heirs. His testimony was corroborated by DW2. It was from that testimony that the first appellate court found the coffee farms were acquired by the parties in their joint efforts and proceeded to order for the division of the farms among the parties. The wording of section 114(2) of the Law of Marriage Act (supra) was deeply meditated by the Court of Appeal in the case of Gabriel Nimrod Kurwijila vs. Theresia Hassani Malongo (supra), that before making an order for division of matrimonial properties, courts must take into the consideration the extent of contributions made by each spouse in the acquisition. From the competing testimonies, submissions made by both parties and the decision of the first appellate court, I have observed the following. 9 The respondent in her testimony told the trial court that, two farms were acquired in 2014 and 2016 and the third farm was acquired in 2021 through purchase. The available evidence clearly shows that, the respondent started living together with the appellant in July, 2014 and separated in December, 2014. They resumed their relationship in 2017 and continued living together up to 2023. As stated early herein above, the respondent was the one filed the matter before the trial court. She was bound to prove her claims as required under section 110 of the Evidence Act (supra). Apart from the respondent, the other witness was her father (PW2). It is my view that, the testimony given by PW2 was to be corroborated with the evidence of another independent witness. He was a witness with his interest to serve. Corroboration of his evidence was crucial. The Court of Appeal had an opportunity of setting the position of this scenario. In the case of Godfrey Elisalia & Others vs. Republic (Criminal Appeal No.39 of 2022) [2023] TZCA 17325 (12 June 2023) while citing the case of Hassan Mzee Mfaume vs. Republic [1981] T.L.R. 167, the Court stated that: "Furthermore, it would appear that the witness Asha (PW5) whose evidence tends to implicate the appellant, was a person with an 10 interest of her own to serve in the matter... Once it is held that Asha was a witness with an interest of her own to serve, then her evidence requires dose scrutiny and, as a matter of procedure, corroboration." In line with the principle established under the passaged quoted, for instance, the testimony on the purchased coffee farm, the respondent was to call the seller or any other neighbour bordering to the farm to corroborate PW2’s evidence. From these facts, I find the trial court was correct in ignoring the respondent’s evidence that the coffee farms were not acquired by the parties when they were living together as it did on the house (13X9.5 M). Her evidence was weak compared to that given by the appellant that the coffee farms were left by his late father. She failed to abide with the legal requirement of proving her contribution in the acquisition. Furthermore, the respondent claimed that, the third coffee farm was acquired through purchase. The respondent mentioned people bordering with that farm but neither the seller not the people bordering with their farm was called to testify in court. A perusal on the trial court’s typed proceedings, this court found that when cross examined by the 11 appellant/respondent before the trial court, as per page 8 of the typed proceedings she replied that: “Mwaka 2021 tulinunua shamba la kahawa kwa Beno Faustine Nzuyu, siyo shahidi wangu sina haja ya kumuita shahidi kwa sababu shamba lipo sina kielelezo kuonesha kununua shamba.” Literally translated, in 2021 we purchased coffee farm from one Beno Faustine Nzuyu, who is not my witness, no need to call him as the farm is there. I have no exhibit to prove purchase of the farm. It is my considered view that, to build her case and prove the same, the respondent was duty bound to call the seller she named during cross examination, one Beno Faustine Nzuyu as her witness to testify that they jointly or otherwise bought the coffee farm from him. To the contrary, she replied that, there was no need to call him as witness. Given the fact that, the major issue was the purchase of the coffee farm, she ought to have called Beno Faustine Nzuyu as her witness to corroborate PW2’s evidence who was a witness with his own interest to serve. PW2 is the father of the respondent, for obvious reasons has his own interest to serve. She added that, she had no evidence to show on the purchase of the said coffee farm. It would have made a difference if the respondent could have called Beno Faustine Nzuyu as her witness to adduce oral evidence proving that they purchased 12 the coffee farm from him if at all it was so. This would have saved her boat from sinking. The mere words that they jointly acquired the coffee farm proved futile. Plainly, the provisions of section 110(1) of the Evidence Act, (supra) insist on proving allegations by the person who alleges the existence of certain facts. The Court of Appeal clearly amplified the cited provisions in the case of Barelia Karangirangi vs. Asteria Nyalambwa (Civil Appeal No. 237 of 2015) [2019] TZCA 51 (1 April 2019). The Court stated that: “At this juncture, we think it is pertinent to state the principle governing proof of case in civil suits. The general rule is that he who alleges must prove.” This position of the Court of Appeal binds on the subordinate courts. The appeal at hand falls within the perimeters of the decision of the Court of Appeal in the above excerpt. The records available clearly depict that the respondent did not prove her allegations that they acquired the coffee farm together with the appellant. Therefore, it is my humble consideration that the finding made by the first appellate court that the coffee farms were jointly acquired by the parties was not properly made taking into consideration the available 13 testimonies. As a result thereof, the issue raised, whether the appeal has merit, is answered in the affirmative. Finally, based on what I have endeavored to state herein above, the appeal has merit thus, it is allowed. The decision and orders of the first appellate court in respect to the coffee farms are set aside. The decision of the trial court is upheld. This being a matrimonial dispute, each party must bear his or her own costs. It is so ordered. DATED and DELIVERED at SONGEA this 07th day of November, 2024. E. L. KAWISHE JUDGE 14 COURT: Judgment delivered in the presence of the appellant, Mr. Melkioni Kihwili and in the presence of Ms. Roza Nombo, the respondent. Right of appeal explained. E. L. KAWISHE JUDGE 07/11/2024 15