20100820 TZHC Dar es Salaam

./ IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM PC. CIVIL APPEAL NO. 43 OF 2009 •• ( Originating from Kinondoni District Court Civ; App. No._ 76/2006) NDIMYAKE AMBOKILE MWAKATAGE...... APPELLANT VERSUS JOHN BOSCO MWAKATAGE ........... . RESPONDENT Date of last Order : 22/6/2010 Date of Judgment : 20/8/2010 JUDGMENT Shangwa, J. . This is an appeal against the judgment and ·decree of the District Court of Kinondoni in Civil Appeal No. 7 6 of 1 0 2006 dated 22 nd May, 2008. The dispute between the parties is matrimonial in nature. It started from the Primary Court of Kawe in Matrimonial Cause No. 9 of 2006 where it was ordered that the matrimonial assets which were acquired by the parties during the subsistence of their marriage should be divided equally. The Respondent 1n this appeal case John Bosco Mwakatage was not satisfied with the decision of the Primary Court of Kawe. He then appealed to the District Court of Kinondoni in Civil Appeal No 76 of 2006 which awarded him ¾ of the matrimonial assets and awarded his former spouse Ndimyake Ambokile Mwakatage ¼ of the matrimonial assets. His former spouce was not satisfied with the decision of the District Court of Kinondoni. She then appealed to this court. She has three grounds of appeal namely: 2 1. That the Honourable District Court Magistrate erred both in law and in facts by proceeding to hear additional evidence contrary to her own ruling dated 22nd November, 2007 where she had ordered that the matter be remitted to the Primary Court for collection of further evidence and while there was -· no application for review of her ruling. I 2. That the Honourable District Magistrate erred both in law and infacts by taking written submissions as additional evidence and relying on the same while submissions are not evidence in law. 3. That the judgment of the District Court does not conform with Order XXXIX 3 .' Rule 31 of the Civil Procedure Code [ Cap 33 R.E 2002]. Upon those grounds, she prayed that the judgment and decree of the Kinondoni District Court should be quashed and set aside with costs so that the decision of the Primary Court of Kawe be left to stand. Before this court, the Appellant was represented by Mr. Simbakalia, Advocate and the Respondent was represented by Mr. Rwebangira Eustrace, Advocate. Both of them argued this appeal by way of written submissions in compliance with the order of this court dated 20 th October, 2009. 4 Counsel for the Respondent submitted that the first ground · of appeal is baseless because the additional evidence was not taken by the District Court of Kinondoni but it was taken by the Primary Court of Kawe following the order of the District Court of Kinondoni to remit the Primary Court's case file so that it may take additional evidence and return the case file to the District Court for determining the appeal. I agree with counsel for the Respondent that additional ~vidence was taken by the Primary Court of Kawe which forwarded the case file to the District Court of Kinondoni for its necessary action. Upon examining the evidence on record as a whole, the District Court of Kinondoni arrived at the decision that the Appellant should have ¼ share of the matrimonial assets and the Respondent should have ¾ share of the same assets. Therefore, the District Court 5 reversed the decision of the Primary Court which ordered for equal distribution of the matrimonial assets. All in all, the first ground of appeal has no merit and it fails. Counsel for the Respondent submitted also that the 2 nd ground of appeal is baseless. He referred the court to page 1 of the typed judgment of the District Court where it can clearly be seen that the Resident Magistrate did consider earlier evidence and additional evidence 1n arriving at the decision of the court which was made. I agree with counsel for the Respondent that in arriving at her judgment, the Resident Magistrate Ms Mshasha did not take written submissions as additional evidence as argued by counsel for appellant but that she did so by taking into consideration earlier evidence and 6 additional evidence concerning the contribution by each party towards the acquisition of the matrimonial assets during_ the subsistence of their marriage. In her judgment, the Resident Magistrate was of the view that the houses and shop cannot be divided equally as it was decided by the Primary Court of Kawe. She said that the Respondent gave evidence which was admitted by the_ trial Primary Court as exhibit P2, P3, P8, P9 and Pl 1 to show that the properties in issue were bought by him while at Dar es Salaam and that the Appellant's contribution was the care and supervision of those properties ( investments and projects) which belonged to him while he was away in Shinyanga Region. She said, in arriving at her decision, she considered the extent of contribution made by each party in money, property or work towards the acquisition of the assets just as it is provided for under S. 114 (2) and ( 1) of 7 the Law of Marriage Act, 1971. I agree with her judgment - and I do uphold it. In gen~ral, the-second ground of appeal has no merit and it fails. Counsel for the Respondent submitted on the third ground of appeal that 0. XXXIX, Rule 31 of the Civil Procedure Code was not offended by the Resident Magistrate on appeal because the judgment she delivered contains· the points for decision, and reasons for decision, and that in her judgment, she took into consideration the extent of contribution made by each party. I entirely agree with counsel for the Respondent that the judgment of the court does not offend the provisions of 0. XXXIX r. 31 of the Civil Procedure Code. I have read it and found that it contains the points for decision and the 8 . f.... ,. reasons for- the decision. For me, I think it is a good judgment. The major point for decision which is contained in the District Court's judgment is whether or not there was evidence to justify equal distribution of the matrimonial assets to the parties. The reasons for the decision which was given by the District Court are also indicated in its judgment. They are as follows: 1. That the evidence on record shows that -· the houses and other properties were bought by the Respondent with his own money. 2. That the Appellant's contribution was mainly to supervise the investments and projects which were left by the Respondent when he was transferred from Dar es Salaam to Shinyanga Region. 9 Thus, the third ground of appeal has no merit as well and it fails. At page 5 of his written submissions, counsel for the Respondent made a comment that the Appellant's grounds of appeal are basically against the procedure and not the finding of the District Court and that there is no ground of appeal questioning the distribution of the matrimonial assets. I entirely agree with him. Worse still none of the grounds of appeal before this court has succeeded. All grounds of appeal have failed. In my view, this appeal has no merit and I cannot interfere with the judgment and decree of the District Court from which it arose. I dismiss it but as parties were once 10 upon a time wife and husband, I order that each party should bear its own costs. ~~ A.Shangwa JUDGE 20/8/2010 Delivered in open court this 20 th August, 2010 in the presence of Mr . . Simbakalia for Appellant and Mr. Eu-stace Rwebangira for the Respondent. ~' ~~ A.Shangwa JUDGE 20/8/2010 11