NICKSON MBELE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA PC CIVIL APPEAL NO. 11812 OF 2024 (From the District Court of Dodoma in Matrimonial Appeal No. 15 of 2023: Original Matrimonial Cause No. 79 of 2022- Makang'wa Urban Primary Court) NICKSON MBELE.......................................................... APPELLANT

VERSUS HALIMA MESHACK SONGO.......................................... RESPONDENT

JUDGMENT 15th & 29th November, 2024 MASABO, J.:- This is a second appeal. The appellant is disgruntled by the decision of the District Court of Dodoma (the first appellate court) in Matrimonial Appeal No. 15 of 2023 which partly allowed his appeal from the decision of Makang'wa Primary Court in Matrimonial Cause No. 79 of 2022. The nucleus of the appeal is a matrimonial dispute between the parties, a couple married in 2016 in accordance with customary rites. During the subsistence of their marriage, they were blessed with one child who was thirteen years old when the matter was before the trial court in 2022. The appellant moved the trial court praying for divorce. Convinced that the marriage between the parties was beyond repair, the trial court dissolved the marriage, distributed the matrimonial assets, placed the issue under the custody of the appellant. With regard to the distribution of matrimonial Page 1 of 11 assets, the respondent was given five herds of cattle and home utensils whereas the appellant was given a milling machine and a motorcycle. The orders in respect of the distribution of matrimonial assets enraged the appellant. He appealed to the first appellate court which partly allowed the appeal to the extent that the house at Fufu was given to the respondent whereas the rest of the properties were given to the appellant. Aggrieved further he has filed this

appeal on the following grounds: - one, the lower courts erred in giving the matrimonial house to the respondent instead of dividing it between both parties; two, it was not proved that the matrimonial properties were acquired by joint efforts; three, the lower courts erred in disregarding the evidence adduced by the appellant; four, the lower courts erred in disregarding the evidence adduced by the appellant that the house was the only matrimonial asset acquired by the parties during the subsistence of their marriage. Hearing of the appeal proceeded by way of written submissions. The appellant was represented by Mr. John Chigongo whereas the respondent had no representation. Both parties filed their submissions on time In support of the appeal, Mr. Chigongo consolidated the first and fourth grounds of appeal and submitted that the evidence adduced before the trial court was to the effect that, the matrimonial house was acquired by joint efforts of the parties. There was no evidence that it belonged to the respondent's parents. Thus, it ought to have been divided equally to the Page 2 of 11 couple. Even if it was built on the respondent's parent land, the proper remedy was to have it sold and the proceeds therefrom equally distributed to the parties. He cited section 114(1) of the Marriage Act and the case of Samwel Moyo vs Mary Cassian Kayombo [1999] TLR 197 in support of his

submission that the matrimonial assets jointly acquired by the parties during the subsistence of the marriage must be distributed. The second and third grounds of appeal were also consolidated and argued as one. Mr. Chigongo argued that there were no other matrimonial assets other than the house which was jointly acquired. There were neither herds of cattle nor milling machines. He proceeded to submit that even it was to be assumed that they existed and were acquired jointly by the parties as alleged by the respondent, the evidence adduced by PW1 and PW2 did not state when and how the said properties were acquired and where are they. It was submitted further that, although it was alleged that there was a motorcycle, its registration number, type and model were not stated. He proceeded to argue that even though the milling machine was mentioned by the respondent, its type and make and how it was acquired were not disclosed. In any case, it was stated that it belonged to the appellant's mother a fact which was not disputed by the respondent. Moreover, it was argued that the decision of the first appellate court was seriously misdirected as it was not based on the facts adduced and the grounds of appeal. In reply, the respondent submitted that the lower courts were right in not distributing the house to the parties because the conditions for the Page 3 of 11 distribution of the

matrimonial house were not met. The house was erected on the land owned by the respondent's parents, thus not a matrimonial property subject to division. In fortification, she cited the case of Mackson Kabula v Tedi Sadock, (PC) Matrimonial Appeal No. 01 of 2021, HCT at Kigoma (Unreported) and Rehema Hassan Athuman v Mackdonald A. Magoha, Civil Appeal No. 16 of 2022, HCT at Temeke (Unreported) where just like in the present case, the house was erected in another person's land. The court held that such property is not matrimonial and thus not subject to division upon dissolution of marriage. She concluded that, since in the present case the parties agree that the house was erected not on their land but on the respondent's parent's land, the house cannot be divided as a matrimonial asset because you cannot divide the house while leaving the land where the house is erected. Thus, the lower courts were right for not dividing the said house. The first and fourth grounds of appeal were argued to have no merits. It was argued further that the decision of the lower court was in line with the provision of section 144 of the Law of Marriage Act. Had the appellant carefully analysed the evidence in the record, he would not have faulted the lower courts' restraint from subjecting the house to distribution as a matrimonial asset. In support of her submission, she cited the case

Gabriel Nimrod Kurwijila v. Theresia Hassani Maiongo, Civil Appeal No. 102 where the Court of Appeal held that the phrase 'matrimonial property' has a similar meaning to 'matrimonial asset' and it includes a matrimonial home or Page 4 of 11 homes and all other real and personal properties acquired by either or both spouses before or during their marriage. With regard to the evidence given by DW1 and DW2, it was submitted that this court cannot re-evaluate evidence unless there is an injustice. It was argued that the burden of proof with regard to the milling machine was not discharged as there was no proof that the roof that the milling machine belonged to the appellant's mother. The trial and appellate court made no error in the analysis of the evidence and in their concurrent decisions. The respondent argued further that, the appellant tried to hide some of the matrimonial properties when he testified that some properties belonged to his mother whereas they were matrimonial assets. As regards the house, it was submitted that it is not a matrimonial asset as it is located into the respondent's parents. On the second and third grounds, it was argued that the evidence adduced during the trial demonstrates the existence of properties. She argued that the motorcycle is a matrimonial asset as it was jointly acquired during the subsistence of their marriage. With regard to 11 heads

of cattle and milling machines, it was submitted that they existed and were subject to distribution. In conclusion, she prayed that the court dismiss the appeal as it has no merit. I have carefully considered the grounds of appeal alongside the records and submissions of both parties and I shall now proceed to determine the appeal. I shall do so mindful that the two lower courts have concurrent findings in matters complained against by the appellant. They were both satisfied that Page 5 of 11 the couple had jointly acquired matrimonial properties and distributed such properties. It is a settled principle of the law that second appellate courts should be reluctant to interfere with concurrent findings of the lower courts below except in cases where it is obvious that such findings are based on misdirection or misapprehension of evidence or violation of some principles of law or procedure thereby occasioning a miscarriage of justice (see Amratlal Damodar Maltaser and Another t/a Zanzibar Silk Stores vs. A.H Jariwala t/a Zanzibar Hotel [1980] TLR 31, Neli Manase Foya vs. Damian Mlinga [2005] TLR 167 and Helmina Nyoni vs. Yeremia Magoti, Civil Appeal No. 61 of 2020, [2022] TZCA 170 (Tanzlii). In Neli Manase Foya vs. Damian Mlinga (supra) on page 172, the Court of Appeal had the following to say: "It has often been stated that a second appellate court should be reluctant to

interfere with a finding of fact by a trial court, more so where a first appellate court has concurrent with a finding of fact. The District Court which was the first appellate court, concurred with the finding of the fact by the Primary Court. So did the High Court itself, which considered and evaluated the evidence upon which both the lower courts could make concurrent findings." In view of these authorities, I shall carefully consider whether the concurrent findings of the lower courts were wrongly arrived at as a result of misdirection or misapprehension of evidence and whether there is a violation of some principles of law or procedure occasioning a miscarriage of justice. Page 6 of 11 The law permits the court while granting a decree of divorce or separation to subsequently distribute matrimonial assets acquired by the couple or developed by their joint efforts during the subsistence of their marriage. This is provided for under section 114 of the Law of Marriage Act, Cap 29 RE 2019 which states that: - "114 (1) The Court shall have power when granting or subsequent to the grant of a decree of separation or divorce to the division between the parties of matrimonial assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of the sale.

2. In exercising the power conferred by sub section (1), the Court shall have regard to- 1. The customs of the community to which the parties belong; 2. The extent of the contribution made by each party in money, property or work towards the acquisition of the assets; 3. Any debts owing by either party which were contracted for their joint benefit; 4. The needs of infant 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 their joint efforts, [emphasis added]. Page 7 of 11 Accordingly, the assets acquiescent to distribution are those jointly acquired by the spouses during the subsistence of marriage and those acquired by one spouse prior to the marriage but substantially improved during the subsistence of marriage (See Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 [2020] TZCA 31 TanzLII, National Bank of Commerce Limited vs Nurbano Abdallah Mulla, Civil Appeal No. 283 of 2017 [2020] TZCA 238 TanzLII, Yesse Mrisho vs Sania Abdul, Civil Appeal No. 147 of 2016 [2019] 214 TanzLII, Tumaini M. Simonga vs Leonia Tumaini Balenga, Civil Appeal No. 117 of 2022 [2023]

249 TanzLII and Shakila Lucas vs Ramadhani Sadiki Civil Appeal No. 349 of 2020 [2024] TZCA 36 TanzLII.) From these cases and a plethora of other authorities, it is now settled that when invited to distribute assets subsequent to the dissolution of marriage, the court must consider whether there was a joint acquisition and the nature and extent of contribution by each of the parties in the acquisition or the substantial improvement of such assets. In Bi Hawa Mohamed vs Ally Sefu, [1983] TLR, 32, the Court of Appeal stated thus: "... the assets envisaged thereat must firstly be matrimonial assets; and secondly, they must have been acquired by them during the marriage by their joint efforts". (Emphasis supplied) In Yesse Mrisho (supra), it was held that: "There is no doubt that a court, when determining such contribution must also scrutinize the contribution or efforts of each party to the marriage in acquisition of matrimonial assets. Page 8 of 11 This was also the position given in the case of Gabriel Nimrod Kurwijila (supra), where the Court of Appeal stated as follows: "The extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property... In resolving the issue of extent of contribution, the court will mostly rely on the evidence adduced by the parties to prove the extent of contribution",

(Emphasis added) In the present case, the trial court record reveals that when the respondent testified in chief, she did not mention the properties they acquired during the subsistence of their marriage and naturally, the contribution by either of them did not arise. The first time she mentioned the assets was when she was answering a question put to her by the court for clarification. She casually mentioned that they acquired two houses located at Fufu village, utensils, 11 herds of cattle, a milling machine and a motorcycle. Likewise, the appellant when giving his evidence in chief did not state the properties they acquired. He too mentioned them when answering a clarification question posed to him by the court. He stated that they have a house but the same is not a matrimonial property as was erected on the land given to them by the respondent's parents. He added that, apart from that, they do not have any property. His witness, DW2, stated that the parties had no matrimonial property. When cross-examined by the respondent on the milling machine, DW2 replied that it belonged to the appellant's mother. The immediate question under the circumstances is whether there was sufficient evidence to support the distribution of assets. Page 9 of 11 In my firm view, this question attracts a negative answer as there was no such evidence. As stated above, the parties never mentioned

such assets in their evidence in chief. They casually mentioned them when answering questions for clarification from the court, which means that whatever was said by each of them was not tested in cross examination as the opponent party had no such opportunity. Thus, it remained uncertain whether what was said and stated was correct or wrong. The existence of such assets, can therefore not be said to have been proved. I have also observed that no evidence was given as to how the mentioned assets were acquired and the extent of contribution by each party if any. Also, even if it was to be believed that the mentioned assets exist, there would still be no materials on which to gauge the contribution and the shares that the parties should receive. In the foregoing, I am convinced that the two lower courts misapprehended the evidence on record and in so doing, they went on to distribute the properties although there was no concrete evidence of their existence and the nature and extent of contribution by each party. That said, the appeal is allowed. The order on the division of the matrimonial property issued by the trial court is quashed and set aside. It is further ordered that, the record be remitted to the trial court so that it can re-hear the parties and their witnesses if any on the existence or otherwise of the matrimonial assets and make the necessary orders as to the distribution of Page 10 of 11 such assets if any. This being the matrimonial cause each party to bear his/her own costs. It is so ordered. DATED and DELIVERED at Dodoma this 29th day of November 2024 Page 11 of 11