JGMT Neema Steven Ibasa

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA PC CIVIL APPEAL NO. 000027100 OF 2024 NEEMA STEVEN IBASA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS JAPHET MARCO .............................. RESPONDENT / DEFENDANT JUDGMENT MATUMA, J, The parties herein, through Matrimonial Case No. 110 of 2023, divorced at the Primary Court of Mwanza Urban within Nyamagana District. Three landed properties were subjected to distribution which are house No. 2 at Igoma Maghribi A, a guest house at Mwakitoryo Kahama and a two-bed room house at Kahama. In each of the three properties, Supra, the trial Court ordered division at 60% of their respective values to the respondent herein and 40% to the appellant. The respondent Japhet Marco was aggrieved by the order of division of such properties, alleging that his other two wives were disregarded in the properties. The District Court partly allowed the appeal by quashing the orders for division of a house at Igoma and that of Kahama. It, however maintained the division entered by the trial Court in respect of the Guest House. The appellant Neema Steven Ibasa was aggrieved by the Decision of the District Court hence this appeal on two grounds whose complaints are to the effect that 1. The District Court failed to interpret section 114 of the law of Marriage Act as a result entered a wrong decision. Page. 1 2. That the District Court erred to rule out that the house at Igoma is not part of the matrimonial assets. At the hearing of this appeal, both parties were present in person and had the services of learned advocates. M/S Hidaya Haruna learned advocate represented the appellant while Mr. Michael Mlekwa Dudu learned advocate represented the respondent. The learned counsel for the appellant argued the two grounds together in that the appellate magistrate ought to have determined that in terms of section 114 (3) of the law of Marriage Act, properties acquired prior to marriage but substantially improved are liable to be divided upon divorce. She argued that the house at Igoma was bought by the respondent himself and later improved by the joint efforts of the appellant and the respondent. She argued that there is no evidence that the senior wife of the respondent contributed anyhow in the acquisition of such house. She also submitted that the two bed room house at Kahama was wrongly excluded in the division on allegations that it belongs to the second wife of the respondent while the evidence shows that such house and the guest house were built out of the loan obtained jointly by the appellant and the respondent in which the respondent was a borrower and the appellant was a guarantor. She thus asked this Court to allow this appeal. On his part, Mr. Dudu learned advocate submitted in respect of the house at Igoma that the evidence shows that it was bought by the respondent and his senior wife as evidenced by exhibit D5. And that at that time the appellant was not yet married to the respondent. He also submitted that the respondent built a house for the appellant which is at Igoma, and if it is considered, then this appeal ought to be dismissed. In her rejoinder, M/S Hidaya learned counsel insisted that the house at Kahama was built out of debt and thus the appellant is entitled to a share. Having heard the parties for and against this appeal, I take note that the division of the guest house as made by the trial Court and upheld by the 1st appellate Court is not contested. I thus leave it as it is. That means, the appellant shall take 40% and the respondent 60% of its value, subject to the condition set by the trial Court that the percentages shall be taken after the outstanding debt is fully paid. Page. 2 In respect of the house at Igoma, I sustain the decision of the District Court. That house as evidenced by both parties, was bought prior to the appellant marrying the respondent. Most important is that such a house is not even the property of the respondent because exhibit D5 which is a purchase contract of the said house, shows that such house was bought by Tabu Japhet who is said to be the senior wife of the respondent. She bought such house from one Juma Maige on 19/02/2004 at Tshs. 600,000/=. Such contract in its clear terms’ states that; “Mimi Juma Maige ninamuuzia nyuma yangu No.003/119 iliyopo Azimio A Igoma Magharibi. Ninayemuuzia ni ndugu Tabu Japhet kwa makubaliano ya thamani ya Tshs.600,000/= (laki sita) tu. Na fedha hii inalipwa leo tarehe 19/02/2004 bila kubaki deni”. In that respect it was wrong for the trial Court to include this house in the division between the parties, as by doing so would trigger another family dispute between the respondent and his senior wife who was not a party to the dispute at hand. It is quite unfair and in fact illegal for one spouse upon divorce to claim division of properties acquired by another member of the family from which he or she is parting by divorce decree because by doing so is to triggers and leaves behind another dispute in the family. In the instant matter, even if we would agree that there was some development made to the property, it was made by the respondent not to his property but to the property of his senior wife. The appellant is a stranger to the property and cannot claim interest in it. Otherwise, she could pursue her claims through a Civil suit against Tabu Japhet the owner of the property to establish her interests. There is no way Tabu Japhet can be adjudged unheard against the principles of natural justice and the Constitution of the United Republic of Tanzania, 1977 article 13 (6) (a) which provides for a mandatory requirement that when the rights of someone is under determination, such person must be accorder a fully and fair hearing; “Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa Mahakama au chombo kingine kinachohusika, basi mtu huyo atakuwa na haki ya kusikilizwa kwa ukamilifu.” In the circumstances, the first appellate Court properly exonerated the house at Igoma, which belongs to the senior wife of the Respondent. Likewise, it is in evidence and undisputed that the respondent built a house for the appellant. The trial Court ruled out that such house was built out of love and ignored it, while on the other hand ordered the division of a two-bed roomed house at Kahama which was built by the Respondent for his second wife. Page. 3 I might agree with advocate Hidaya Haruna that such house was built out of the loan obtained from a financial institution, but it is on record that the same was for the second wife. It was wrong for the trial court to ignore such fact merely because it was built out of the loan. That loan was not taken out by the appellant. Her role is said to be a guarantor, but the mortgage on such loan was the house of the senior wife. The appellant had no any property mortgaged for the said loan, and the obligation to pay such loan is on the respondent himself and in case of default, it is the house of the senior wife which was put in danger. The appellant therefore stood in the property of the senior wife fraudulently to deceive the Bank that the spouse's consent was that of a relevant wife the fact which is not. In the circumstances, the first appellate Court property exonerated the house at Kahama from the division because that belongs to the second wife, just like the appellant who owns a house at Igoma built by the respondent for her. In other words, the respondent made efforts to ensure that each of his wives owns a house. The appellant should be cool and satisfied with the house built for her by the respondent and the 40% share in the guest house without seeking to bomb on the respondent’s settled homes of the two other wives. In the upshot, this appeal fails in its entirety and is accordingly dismissed. No orders as to costs. It is so ordered. A. MATUMA JUDGE 03/04/2025 Dated at MWANZA this 3rd of April 2025 . A. MATUMA JUDGE OF THE HIGH COURT Page. 4