paulina brezi mbabala vs matei malugu 2020 tzhc 3990 21 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA MATRIMONIAL APPEAL NO.l OF 2020 (Arising from the of Mafrimonial Appeal No. 2 of 2018 of the District Court of Bahi which originated from the decision of Kigwe Primary Court in Mafrimonial Cause No. 8 of 2018) PAULINA BREZI MBABALA................................................... APPELLANT Vs MATEI MALUGU.................................................................... RESPONDENT Date of Judgment: 21st September, 2020 L. Mansoor, J. JUDGMENT This is the second appeal whereby the respondent herein successfully sued the appellant for divorce and distribution of matrimonial properties at Kigwe Primary Court, but discontented only with the distribution of matrimonial properties (a house). The respondent successfully appealed to the Bahi District Court, then the appellant herein being dissatisfied appealed to this Court raising four grounds of appeal. All the grounds of appeal revolving on one ground to wit, that the lower appellate court failed to assess properly the evidence of the parties hence i wrongfully arrived into a decision that the house be distributed equally to them while the evidence did not show that it was jointly acquired. In this appeal, parties stood by their own, that is, they were unrepresented. I have carefully considered the parties' submissions and I have read and re-evaluated the evidences of both parties presented before the trial court. At first it must be put clear that a heated debate by the parties was on the three roomed house situate at Madukani at Kigwe Village. The issue which lingers before this Court is, is that house a matrimonial property?. The respondent in all his endeavours to establish his interest in the said house before the trial court he said that it is a matrimonial home which they built during their happy love days way back in 2002. That he married the appellant traditionally in 2002 and 2016 they had celebrated their marriage in Christianity values. The respondent did not bring witness (es) to prove the existence of the 2 said traditional marriage nor was there evidence to prove that they started living together in 2002 but contended that in all this time from 2002 that is when they built the house and they have been staying in the house since then. The appellant took a different view, by telling the trial court that by 2012 she started being her concubine until July 2016 when they tied a Christian knot, she denied having celebrated a traditional marriage with the respondent. Since there is no evidence to prove that they married traditionally in 2002 or they started living together before as husband and wife prior 2016 then this Court is going to take the appellant’s assertions to be true putting into considerations that it is indisputable that they married by Christianity rites in 2016. That being the case, then whatever property acquired by them prior to their marriage in 2016 cannot be termed as a matrimonial property. In her testimony the appellant denied to have built the house in dispute with the respondent. When she was cross-examined before the trial court the appellant said she was given the plot by Mzee Simon Andrea. When she was examined by the trial Magistrate she said the house was built by an NGO called KISEDET 3 as an aid to her daughter Beatrice. In her defence before the trial court she did not say as to when the house was built but in her submissions before this Court she said it was built in 2002 and indeed her exhibits tendered before the trial court which are the receipts for buying the building materials like cement, timber etc shows that they were bought in 2002 and the purchase receipts were issued in the name of KISEDET. In a bid to amplify his case the respondent brought three witnesses before the trial court all of whom testified that the disputed house was built by both the appellant and the respondent in 2002; While this Court is agreeing that the respondent might have had his hand in the house, but it finds that he has no interest in it since at the time of construction they were not husband and wife nor were they living together to form a matrimonial property. More so, though they might have been living together in the said house after their marriage in 2016 before it turned sour in 2017 so as to qualify it a matrimonial home, still there is no evidence from the respondent to negate the fact that the house was built by KESEDET as assistance to the appellant to raise her children in a proper home. 4 There was enough proof to prove that the house in dispute was built by an NGO (KISEDET), which makes it not the matrimonial property. In any case, the respondent could not prove by cogent evidenced his contribution towards the acquisition and development of the house in dispute. This Court is well satisfied with the findings of the trial court in that the appellant's evidences proved her case on balance of probabilities. That said, this Court allows this appeal, sets aside the Bahi District Court's decision and its orders and confirms the decision of Kigwe Primary Court. Appeal allowed with no orders as to costs since it is a family matter. Dated and Delivered at Dodoma this 21st September, 2020 21st September, 2020 5