oc ommy tanzlii CIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA (TEMEKE SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE

AT TEMEKE CIVIL APPEAL NO. 24856 OF 2024 (Originating from Matrimonial Cause No. 285 of2023 of the District Court of Terneke One Stop Judicial Centre at Temeke ) P.S. S.......................................................................................... APPELLANT

VERSUS J.A.M..................................................................................... RESPONDENT

JUDGMENT Date of last order: 28/02/2025 Date of Judgment: 13/03/2025 OMARI, J.: Being dissatisfied with the Judgment and decree of the District Court of Temeke One Stop Judicial Centre at Temeke in Matrimonial Cause No. 285 of 2023 the Appellant herein knocked the doors of this court seeking for it to reduce the percent if the distribution of the properties and costs of the appeal to be borne by the Respondent on the basis of the following four grounds: I. ♦ 1. That, the Hon. Magistrate erred in law and fact in division of matrimonial assets without any regard to the extent of contribution made by each party and without any inclination towards equality of division and the Respondent does not have direct contribution towards the said property.

2. That, the trial court erred in law and fact for determining the case without evaluating properly the evidence on record.

3. That, the magistrate erred both in law and fact by dividing the matrimonial assets without taking into consideration the value of the assets.

4. That. The Hon. Magistrate erred in law and in fact in division of the matrimonial asset without regarding the livelihood of the whole family depends on the said property. The Respondent appeared to contest the appeal. When the appeal was fixed for hearing both parties appeared. The Respondent informed this court she is a beneficiary of legal assistance from the Tanzania Women Lawyer's Association (TAWLA). This being the case, after consultation with the parties it was agreed that the appeal be heard in writing. A scheduling order was entered, to which the parties complied. Mr. Jimmy Mabula commenced his submission on behalf of the Appellant with an explanation that the district court judgment attributed the Respondent contribution to purchase TZS 50,000 out of the purchase price of the house of TZS 300,000 something which is not true as the said house was bought prior to the parties' marriage and the Appellant paid TZS 70,000 as per the sale agreement and transfer documents. This, according to counsel means the court did not consider the provisions of section 114 of the Law of Marriage Act, Cap 29 R.E. 2002 (the LMA) as giving the Respondent 35% is too high as she did not make a financial contribution. Having been acquired before marriage, there is no contribution through her domestic work as a wife, as the purchase of the house was completed by the Appellant and his family.

Mr. Mabula then commented that even the case of Bi. Hawa Mohammed does not support the distribution for there is no contribution because the house was acquired 10 years before the marriage. Further to that the said house is used by the children of the Appellant's deceased wife and it is the only property he depends on. According to counsel, the division is not fair as it does not consider when the house was acquired. Mr. Mabula concluded his submission by piaying that this court allows the appeal and the decision of the district court be quashed and set aside, the court reduce the percentage of the distribution of the properties and give the respondent what she deserves according to her contribution. When it was her turn Ms. Ndyanabo submitted on the four grounds of appeal seriatim. On the first ground of appeal she explained that her client filed a petition seeking a decree of divorce and division of matrimonial properties that the couple acquired in the course of their marriage. This, according to counsel is in conformity with section 114(l)(b) of the LMA. Therefore, the Appellant cannot feel that her client has no right to the properties or that the court's division is wrong. Counsel further explained that, the parties bought a property in Kigilagila Kiwalani for TZS 300,000 in which the Respondent contributed TZS 50,000 as her testimony which was corroborated by PW2 and PW3

during trial. And, according to her this was the only evidence that was led, thus, it is what the trial court relied upon in reaching its decision. As regards the second ground of appeal counsel argued that it is the evidence that was adduced in court that the trial court used to reach its decision. According to Ms. Ndyanabo, the record shows that in addition to herself the Respondent called two other witnesses whose evidence regarding the parties' marriage was uncontroverted. In her view it is wrong to argue that the evidence was wrongly analysed. Submitting on the third ground of appeal, Ms. Ndyanabo explained that valuation and value of an asset is a matter to be explored at the execution stage not at trial. As for the fourth ground of appeal counsel submitted that according to the law matrimonial assets belong to the husband and wife and are to be; in case of a divorce, divided between them. In her view the Appellant's submission on the fourth ground is based on sentiments. Counsel concluded with a prayer that the appeal be dismissed on account of the Appellant's failure to give any sound and solid grounds to sustain the appeal. No rejoinder was filed by the Appellant. After going through the submissions made by counsel for either side, I am of the view that there is only one issue for determination, that is, whether the appeal is meritorious. Before going into the grounds

of appeal, I wish to indulge on three things as follows. The first is to give a brief background of the matter so that context is supplied. The Respondent herein Petitioned for divorce seeking, in addition to a divorce decree; division of matrimonial property. The matter was heard ex parte on account of the Appellant's omission to file an Answer to the Petition. The Respondent's Petition and testimony, which was corroborated by the witnesses, was that in the course of their marriage, the parties bought a run-down house for TZS 300,000 to which she contributed TZS 50,000. The said house was demolished and a new one constructed. As rightly observed by the trial magistrate, the Respondent did not state how she contributed to the later development. She, the Respondent also stated that they have a motor vehicle, however, since she did not give any particulars regarding the said vehicle, the trial court did not treat it as matrimonial property. As a result, on account of her contribution to the purchase of the original house, the trial court only awarded her 35% of the house. This is what the Appellant herein is complaining about. The second point I wish to indulge on is that I am aware that, this, being the first appellate court, I have a role to re-evaluate the evidence on record in order to reach my own conclusion if need be. This is an established practice having roots in

precedent see for example the case of Keimu Said v. Republic, Criminal Appeal No. 391 of 2019, Hassan Mohammed Mfaume v. Republic, (1981) T.L.R 167 Faki Said Mtanda v. Republic, Criminal Application No.249 of 2014 and Rashid Abiki Nguwa v. Ramadhan Hassan Kuteya and Another, Civil Appeal No. 421 of 2021. Therefore, while determining the grounds of appeal, I have gone through the record of the trial court and looked into the evidence on record. The third and last point is that this court can only concern itself with a matter that was at issue at the trial. In the case of Richard Majenga v. Specioza Sylivester, (Civil Appeal No. 208 of 2018) [2020] TZCA 227 the Court of Appeal stated: "It is a settled principle of the law that at an appellate level the court only deals with matters that have been decided upon by the lower court." This means a new matter or issue cannot be brought up at the appeal stage. Having said the above, I now proceed to discuss the grounds of appeal. Since they all pivot on the division of the house not being fair I shall discuss them jointly. In a matrimonial matter, where a court has considered the evidence and sees it fit to grant a decree of divorce it is then wither when or subsequent to granting the decree guided by section 114 of the LMA to order the division of matrimonial property, if any. When doing so the court relies on evidence of there being

matrimonial property jointly acquired by the parties. This is so because as per the cases of Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018, Pulcheria Pundungu v. Samwel Huma Pundungu [1985] T.L.R 11 and that of Samwel Moyo v. Mary Cassian Kayombo (1999) T.L.R 197, in exercising the powers conferred under section 114 of the LMA a court has to ensure that when dividing property; that the assets set for distribution must be matrimonial assets, they must have been acquired by the parties during the subsistence of the marriage and they must have been acquired by the joint efforts of the parties. It is after establishing all of this that the court can move on to determine the extent of distribution by either party based on the evidence adduced, see Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo (supra). I have gone through the evidence adduced at the trial, the Respondent not only pleaded that she contributed to the acquisition of the house but also adduced evidence to show how she did so, that is she contributed TZS 50,000. The Appellant herein is challenging this stating that the house was bought by his family and it was TZS 70,000 as is shown in the sale agreement. There is no evidence of either claim that was adduced during the trial; thus, this is a new issue that he is bringing in by way of appeal. Moreover, the Appellant is

complaining that the said house is a family house and the only property he has with his other family. Section 114 of the LMA, which as already stated gives power to the court to divide matrimonial property when or subsequent to granting a decree of divorce sets the above named conditions, sentimental value is not one of the conditions. Likewise, the learned counsel's argument that the Appellant now lives with his other family is a futile one since the Respondent is entitled to her contribution to the acquisition of the property which the trial court after considering the evidence and circumstances there at gauged at a meagre 35% on the basis of her failure to show her contribution to the developments that came after the purchase. After having considered the evidence on record I see no reason to disagree with the trial court's decision to award 35% of the house based on the contribution the Respondent made at the time of purchasing the rundown house, which led to the building of the house in dispute. The Appellant is also complaining that the trial court did not order a valuation of the house before awarding the Respondent the stated 35%. On this, I agree with Ms. Ndyanabo that it is not the function of the trial court to order a valuation, that if need be can be done by the executing court. As provided for in section 114 of the LMA and the cases of Gabriel Nimrod Kurwijila v.

Theresia Hassani Malongo (supra), Pulcheria Pundungu v. Samwel Huma Pundungu (supra) and Samwel Moyo v. Mary Cassian Kayombo (supra), what the trial court needs to establish from the evidence is that the assets set for distribution are matrimonial assets, they must have been acquired by the parties during the subsistence of the marriage and they must have been acquired by the joint efforts of the parties. Additionally, the trial court has to look at the extent of contribution by either party based on the evidence adduced. In the case at hand, the Respondent has met all the above conditions and has explained the extent of her contribution, thus, leading the court to award her 35% of the house in dispute. While I empathize with the Appellant's concern that this is a family home and the only property he is depend on, being the said house is matrimonial property jointly acquired by the parties it is them who are best suited to discuss and reach an agreement that is better suitable in their circumstances as this court cannot impose that the two be forced to live together or co-own the property since the reality is they are now no longer husband and wife. From the foregoing analysis I find no fault with the findings of the trial court. I hereby dismiss the appeal and uphold the decision of the trial court. This being the matrimonial matter, each party is to bear its own costs. A.ATOMAR

JUDGE 13/03/2025 Judgment dated and delivered on 13th March, 2025 in the presence of Jimmy Mabula advocate for the Appellant. A.ATOMARI

JUDGE 13/03/2025