CIVIL APPELA NO 13863 OF 2024 Saidi Mbarapi

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

AT TEMEKE CIVIL APPEAL NO. 13863 OF 2024 (Arising from the decision of the District Court of Temeke at Temeke One Stop-Judicial Centre in Matrimonial Cause No. 90 of2023) SAID HAMIDU MBARAPI........................................................................ APPELLANT

VERSUS

RENITASPACE MICHAEL MTEITE RESPONDENT

JUDGMENT 10th July & 21st August, 2024 BARTHY, J.: The appellant above dissatisfied with the decision of district court of Temeke at Temeke One-Stop Judicial Centre, appeals to this court against the said judgment based on the following grounds; 1. That the trial court erred in law and fact by ordering the distribution of matrimonial assets to which the respondent was given a house at Saku and a plot located at Kigamboni while appellant herein was given a plot located at Msongoia without i establishing the actual values of the matrimonial properties herein in connection to the extent of parties' contribution on acquisition.

2. That the trial court erred in law and fact by holding that the marriage of the parties has irreparably broken down without any proven ground for the same.

3. That the honourable trial court failed totally to analyze the evidence on record by holding that the house at Mbande which was acquired before the marriage be subject to distribution, regardless of the evidence on record proving the same being acquired before marriage.

4. That the trial court erred in law and fact by disregarding appellant's evidence on record when composing judgment, hence the outstanding loan debts of Tsh. 108,000,000/- on records left hanged, as well appellant's degree of contribution on acquisition of properties was not stated in the said judgment. The appellant, therefore, prays to this court to allow the appeal, vary the order regarding the distribution of matrimonial assets, exclude the house 2 at Mbande, and order that all other assets be distributed based on the percentage of contribution by each party. The appellant and respondent were married in a civil ceremony on 8th of September 2012, and had two children together. Despite the early promise of their union, their marriage encountered significant challenges, leading to a prolonged separation of three years. During this time, the respondent left the matrimonial home, and eventually, she sought legal dissolution of the marriage. The trial court granted the decree for divorce, ordered the division of matrimonial assets, determined custody arrangements and maintenance for the children. In the present appeal, the appellant was represented by Mr. Claus Mwainona, a learned advocate who prepared his written submission. The respondent's written submission was prepared by Mr. Respicius Didace, also a learned advocate. In support of the first grounds of appeal, Mr. Mwainona

extensively criticized the trial court's decision on the distribution of matrimonial assets, arguing that the court failed to consider the evidence provided by both parties regarding their contributions. He challenged the awarding of a house to the respondent without proof of a gift from the appellant, despite evidence 3 showing the house was built by the appellant before the marriage using a bank loan. He also contended that the court improperly divided assets without first determining their value, leading to an unequal distribution, citing Antony Maziku vs Elizabeth Maziku, Civil Appeal No. 41 of 2019, to buttress his argument. Regarding the respondent's contribution, Mr. Mwainona noted that the exhibits P5, P6, and P7 did not reveal her earnings, although the appellant insisted to giving the respondent Tsh. 50,000,000 for development purposes. He supported his argument with the case of Yesse Mrisho vs Sania Abdul, Civil Appeal No. 147 of 2016. On the second ground, he argued that the trial court wrongly declared the marriage irreparably broken without sufficient evidence, as the allegations of adultery were not proven, and the only agreed fact was that the petitioner left the matrimonial home. For the third issue, Mr. Mwainona contended that the trial court mistakenly included a house at Mbande, acquired before the marriage, in the asset distribution. He cited Bi Hawa

Mohamed vs Ally Sefu [1983] TLR 32 and Section 114(1) of the Law of Marriage Act, Cap 29, R.E 2019 (the Law of Marriage Act), arguing that the trial magistrate unjustifiably awarded 30% of 4 this house to the respondent, despite it being personal property under Section 60 of the Law of Marriage Act. Lastly, Mr. Mwainona argued that the trial court disregarded the appellant's evidence concerning an outstanding loan of Tsh. 108,000,000, as recorded on page 22 of the proceedings and in Exhibit D2 (salary slip). He referenced section U4(2)(c) of the Law of Marriage Act, which requires debts to be considered in asset division but it was not addressed by the trial magistrate. He prayed for the appeal to be allowed, the trial court's judgment to be varied, the Mbande house to be excluded from the division, a valuation of all jointly acquired properties to be conducted, the Tsh. 108,000,000/- debt to be considered, and the costs of the appeal to be awarded. Mr. Respicius Didace opposed all the grounds of appeal, beginning with the first ground. He argued that the trial court was correct in its division of matrimonial assets, emphasizing that the appellant was awarded a plot at Msongola, 70% of the value of the Mbande property, the plot at Msongola, and 50% of the Mlandizi house (pending the outcome of a related land case). 5 He further contended that the house at Saku was built by the

respondent after marital conflicts began, highlighting that the division of assets should be approached with sound analysis than a strict mathematical formula. He maintained that the appellant had gifted the property to the respondent, who then built a house using her own resources. To support his argument, he cited Bi Hawa Mohamed vs Ally Sefu (supra) and referenced section 114(2)(b) of the Law of Marriage Act, Cap 29, R.E.

2019. On the second ground, Mr. Didace argued that the trial court was correct in finding that the marriage had irreparably broken down. He referenced the respondent's petition, which cited reasons such as the appellant's extramarital affairs, denial of conjugal rights, and acts of cruelty. He noted that the issues in the marriage began in 2014, leading to a failed reconciliation, as evidenced by Exhibit P.2. He also pointed out that the parties had been separated since January 2020, as stated in the divorce petition and not disputed by the appellant. He cited Mayengo vs Malembeka (Pc) Civil Appeal 32 of 2003 [2005] TZCA 54 for reference. Regarding the third ground, Mr. Didace asserted that the trial court did not err in including the Mbande house in the asset distribution, despite it being 6 acquired before the marriage. He argued that witnesses (PW1, PW2, and DW1) testified that the house was the matrimonial home where the parties lived until their separation in 2020. He cited section 114(3) of the Law of Marriage Act for reference. On the fourth ground, concerning the alleged failure to consider the appellant's outstanding loan of Tsh. 108,000,000/- Mr. Didace argued that the appellant failed to connect the loan to the matrimonial properties. He highlighted that DW1, the appellant, could not recall when the loan was taken, leading the trial court to rightfully disregard this

evidence in the asset division. Mr. Didace concluded by requesting the court to dismiss the appeal in its entirety. The appellant did not file a rejoinder submission, leaving this court to determine whether the appeal has merit. Before determining the present appeal, this court considers that it sits as the first appellate Court, it is therefore entitled to re-evaluate the evidence afresh and arrive at its own finding if there is the misdirection of evidence or non-application of law. This was emphasized in the case of Registered Trustees of Holy Spirit Sisters T. vs January Kamili (Civil Appeal No. 193 of 2016) Court of Appeal at Arusha [2018] TZCA 32 (21 August 2018). ' (J 7 In addressing the grounds of appeal, I will begin with the second ground, by determining the issue whether the trial court erred in finding that the marriage between the parties had irreparably broken down without sufficient proof. During the hearing, evidence regarding the allegation of adultery was presented, as documented on page 6 of the typed proceedings. Additionally, the respondent herein had testified that she left the matrimonial home at Mbande and moved to another matrimonial house at Saku in 2020 as seen on page 8 of the typed proceedings. This testimony was corroborated by the appellant's admission in his answer to the petition. The appellant acknowledged that the respondent left the

matrimonial home in 2020, while the petition was filed on 31st March 2023, and the trial court's judgment was delivered on 2nd of May, 2024. Therefore, the parties have been separated for over three years. According to section 107(f) of the Law of Marriage Act, a voluntary separation lasting more than three years is considered sufficient evidence that the marriage has irreparably broken down. The trial court also found sufficient evidence of adultery under Section 107(2)(a) of the Law of Marriage Act, further supporting its conclusion that 8 the marriage had indeed irreparably broken down. Based on this evidence, the trial court held that: The respondent established another family and they got one child unfortunately their relationship didn't go far then they separated, after that the respondent took another woman and he started to live in the same house... hence ground set forth under section 107(2)(a) of the Law of Marriage Act (Cap 29 R.E. 2019) is proved. In light of this, I see no reason to overturn the trial court's findings. As there was sufficient evidence to prove the marriage was irretrievably broken down for the reason of adultery. Therefore, the second ground of appeal lacks merit and is dismissed accordingly. I will now turn to address the first, third and fourth grounds of appeal together, as they are interrelated. The issue to be determined is whether the trial

court erred in law and fact by ordering the distribution of matrimonial assets without establishing the actual values of the properties and the extent of each party's contribution. This includes the inclusion of the Mbande house, which was acquired before the marriage, and the trial court's disregard of the appellant's outstanding loan debt of Tsh. 108,000,000/- in the distribution. 9 Following the grant of a decree of divorce, the court is empowered to order the division of matrimonial assets acquired jointly under Section 114(1) of the Law of Marriage Act. Additionally, section 114(2)(b) and (c) outlines the criteria the court may consider in ordering such a division; "(a) ...N/A (b) the extent of the contributions made by each party in money, property, or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit." In this case, the trial court awarded the petitioner (the respondent in this appeal) the house located at Saku, a 30% share of the house at Mbande, a plot at Kigamboni, and 50% of the value of the Mlandizi farm (subject to the outcome of a pending land case). The appellant was awarded a 70% share of the house at Mbande, a plot at Msongola, and 50% of the value of the Mlandizi farm (again, subject to the outcome of the pending land case). During the trial, the appellant testified that he borrowed

money to purchase two plots and began constructing the property at Mbande, including the framework and house, which costed Tsh. 35,000,000/=. He then took out io another loan to complete the construction in August 2021, which left him indebted to the tune of Tsh. 108,000,000/=. Additionally, he claimed to have been sending money to the respondent from 2012 to 2020, amounting to Tsh. 50,000,000/=, to build the house at Saku. He provided evidence of his loans, including his salary slip, marked as Exhibit D2. He further stated that he built the house at Saku for their children to live in and mentioned that he had been financially supporting the respondent even before their marriage, as she was his friend and lover. He also insisted the construction of the house at Mbande began before their marriage, but the finishing touches were completed after they were married, as seen on pages 22, 26, and 29 of the typed proceedings. The respondent, in her testimony, stated that the house at Mbande served as their matrimonial home, where they lived for eight years before she moved to another matrimonial home at Saku during their separation. Her testimony, found on pages 8 and 11 of the typed proceedings, emphasized that the properties were acquired during the marriage. She further claimed that she was given a plot at Saku as a gift in 2017, and when their marriage began facing difficulties,

she used her funds to construct the house there. She also stated that the other plots were purchased jointly. ii From the parties' submissions, it is clear that the appellant acquired the plots at Saku and Mbande alone, where the disputed houses were later built. It is also undisputed that the construction of the house at Mbande began with the appellant before the marriage, with the respondent involved in supervising its completion, as correctly observed by the trial magistrate on page 8 of the typed judgment. For the court to determine whether these properties qualify as matrimonial assets, it must consider whether they were jointly acquired, improved by one spouse after being acquired by the other, or transformed into a matrimonial home. In the case of Bi Hawa Mohamed vs Ally Sefu (cited by both parties), matrimonial property is defined to include properties acquired by one or both spouses with the intent to use them for the benefit of the entire family. This interpretation aligns with section 114(3) of the Law of Marriage Act, which stipulates that; 114(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. 12 Given that our law does not provide a specific definition of what constitutes

matrimonial property, the Court of Appeal, in the case of Gabriel Nimrod Kurwijila vs. Theresia Hassan Malongo (Civil Appeal No. 102 of 2018), borrowed from India jurisdictions to clarify the concept. The court referred to the definition of "matrimonial assets" as provided in section 4(1) of the Matrimonial Property Act, Chapter 275 of the Revised Statutes, 1989. This statute defines matrimonial assets as; "In this Act. "matrimonial assets" means the matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage, with the exceptions of; (a) gifts, inheritances, trusts or settlements received by one spouse from a person other than the other spouse except to the extent to which they are used for the benefit of both spouses or their children; (b) an award or settlement of damages in court in favour of one spouse; (c) money paid or payable to one spouse under an insurance policy; (d) reasonable personal effects of one spouse; (e) business assets; (f) property exempted under a marriage contract or separation 13 agreement; (g) real and personal property acquired after separation unless the spouses resume cohabitation." In considering the evidence presented before the trial court, it was established that the house at Mbande was transformed into the matrimonial home where the parties resided after their marriage.

During the separation, the respondent moved with her children to the house at Saku, implying that the said house was already constructed before she moved in while living together with the appellant. Consequently, both houses are regarded as matrimonial homes and, therefore, fall under the category of matrimonial properties. Regarding the two plots of land located at Kigamboni and Msongola, which were purchased during the marriage, they are also considered matrimonial assets. As there was no evidence to suggest that these plots were owned as private property by either party, further supporting their classification as matrimonial assets. For the court to issue an order for the division of matrimonial assets jointly acquired by the spouses, the law requires evidence of the extent of each party's contribution or any debt incurred toward the acquisition of such 14 property. In this case, both parties were employed, as demonstrated by exhibits P5, P6, P7, and DI. It is clear that the appellant made significant efforts in purchasing the plots and initiating the construction of the houses, while the respondent contributed by supervising the construction and making some financial contributions. The appellant claiming he continues to service the loan he obtained (exhibit D2) for the construction of the houses, indicating that he made a greater effort than the respondent in acquiring the

properties in question. The respondent's claim that she was gifted the plot at Saku and later constructed a house on it lacks concrete evidence. She did not present a deed of gift or any supporting documentation to substantiate her assertion. According to Section 110(1) and (2) of the Evidence Act, Cap 6, R.E 2022, the burden of proof lies on the party asserting the existence of a fact. In this instance, the respondent failed to meet this burden. The appellant also contended that the house at Saku was intended for the children; however, no evidence was presented to demonstrate that the title to the house was registered in the children's names. In this regard, I am inclined to follow the reasoning in the case of Gabriel Nimrod Kurwijila vs. Theresia Hassan Malongo (supra), where the court excluded a property from 15 being considered a matrimonial asset because the title was held in the name of the child. A similar situation was addressed in the case of Elizabeth A. Komakoma vs. Zephania M. Andendekisye, Civil Appeal No. 171 of 2005 (unreported), where Justice Shangwa (as he then was) held that; The trial Magistrate erred in law by giving the matrimonial house at Kimara Kilungule to the three issues of the marriage. The trial Magistrate had no legal powers to do so, what the trial Magistrate was supposed to do in respect of the said Matrimonial house was to order that it should

be divided between the parties or be sold so that the proceeds of its sale be divided between them. That would be in line with section 114 (1) of the Law of marriage Act (cap 29 R.E 2002) which confers power to the Court to order division of Matrimonial property...' The absence of such evidence in the present case undermines the appellant's claim, as the house remains part of the matrimonial assets subject to division between the parties. Based on the evidence presented by both parties, it is clear that the appellant made a significantly greater contribution toward the acquisition of 16 the contested assets than the respondent. This aligns with the principle established in Helmina Nyoni vs. Yeremia Magoti (Civil Appeal No. 61 of 2020, Court of Appeal at Tabora [2022] TZCA 170), where the court emphasized the importance of assessing each party's contribution when determining the division of assets. In light of this, I find it appropriate to modify the trial court's order regarding the division of matrimonial properties. The house at Saku is to be divided in a ratio of 60% to the appellant and 40% to the respondent. The house at Mbande is to be divided in a ratio of 80% to the appellant and 20% to the respondent, taking into account that the appellant had greater contribution. With regard to the loan issued to him as proved on exhibit D2, it was not clear on exhibit D2 that he

was still servicing the loan of Tsh. 108,000,000/ as claimed. Regarding the plots located at Kigamboni, Msongola, and the farm at Mlandizi (subject to the outcome of the pending land case), these assets are to be divided equally, with each party receiving 50% of their respective values. Given this reasoning, I find that the first, third, and fourth grounds of appeal have been partially successful. 17 Moving forward, I order that a valuation of the houses and landed plots be conducted by an approved valuer. The assets should then be sold, with the proceeds distributed according to the ratios specified above. Alternatively, one party may choose to compensate the other with an amount equivalent to the value of their share. Considering that this is a matrimonial case, I give no order as to costs. I order accordingly. Dated at Temeke this 21st August, 2024. G. N. BARTHY

JUDGE Delivered in the presence of appellant in person, respondent in person and Ms. Bernadina Tayari, RMA. 18