SALAMA MOHAMED VS ALLY ABDALLAH Draft JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA PC CIVIL APPEAL NO 19764 OF 2024 (Arising from the District Court of Dodoma in Civil Appeal No. 561 of 2023; Original from Primary Court of Dodoma Urban in Matrimonial Cause No 92 of 2023) BETWEEN SALMA MOHAMED ……………………………….APPELLANT VERSUS ALLY ABDALLAH ………………….………….RESPONDENT JUDGMENT Date of last order: 05/12/ 2024 Date of Judgment: 20/02/ 2025 LONGOPA, J.: The appellant and respondent were wife and husband whose marriage came to an end through the divorce decree granted by Dodoma Urban Primary Court in Matrimonial Cause No 92 of 2023. The only issue of contention between the parties is division of matrimonial properties namely the house at Plot No. 314 Block BG Nzuguni B within Dodoma City. The trial Primary Court ordered 50/50 share of the division of the house. That 1|Page decision aggrieved the respondent who challenged the order to the District Court of Dodoma which in its decision dated 18th June 2024 reverse the decision of the trial Court on the division to 30% to 70% share respectively to the appellant and respondent. This determination aggrieved the appellant who preferred an appeal against the division to this Court. On 14th August 2024, the appellant instituted an appeal to challenge a judgment of the first appellate District Court on total of four grounds of appeal, namely: 1. That the trial court erred in law and facts to order division of matrimonial properties to respondent that of 70% and appellant30% without consider her contribution in acquisition of those properties 2. That the trial erred in law and fact for deciding in favour of the respondent without considering that the appellant contribution in acquiring the matrimonial asset is great or the same as the respondent. 2|Page 3. That, the trial Magistrate erred in law and fact by deciding in favour of the respondent without considering the fact that the appellant adduced reliable and strong evidence against the respondent. 4. That the whole proceedings was marred by procedural irregularities which led to unwanted judgment and order of the Court. These grounds were vehemently opposed by the respondent who reiterated that the first appellate court considered all contribution in acquisition of matrimonial properties to order division to spouse. It was stated further that the respondent is the greater contributor towards acquisition of matrimonial properties. Further, it was averred that the first appellate court decided the case based on greater weight of the evidence of the respondent in the case. The parties were heard in this appeal orally on 5th December 2024. The appellant enjoyed the legal services of Mr. Majaliwa Wiga while the 3|Page respondent enjoyed the legal services of Mr. Cosmas Mataba, both learned advocates. It was the counsel for the appellant’s submission that out of four grounds of appeal, two of them namely the 3rd and 4th grounds were abandoned and the remaining grounds, the 1st and 2nd grounds of appeal were argued jointly as they are related. With regard to the remaining grounds, it was submitted that there was an error on the part of the 1st appellate court to order division of 30% and 70% share of the matrimonial assets to the appellant and respondent respectively without considering her contribution to the acquisition of the matrimonial assets. It was argued that Section 114(2) of the Law of Marriage Act, Cap 29 R.E. 2019 provides for the factors to be considered for division of matrimonial assets including the extent of contribution of each party to the acquisition of the asset in terms of monetary contribution, asset or work. 4|Page The fundamental principle is the contribution of each spouse towards the acquisition of such matrimonial property. If the parties acquired any asset during subsistence of the marriage or the existing property was improved during the existence of marriage, such property would be subject of division of matrimonial asset based on the contribution of each spouse. It was stated that the appellant’s contribution towards the acquisition of the house located at Plot 314 Block BG Nzuguni B within Dodoma District and Region was demonstrated in page 9 of the Proceedings of the Primary Court where the appellant stated to have contributed by transporting windows, fittings of the windows in the house, installation of electricity and water connection, purchase of cement and bought 200 block bricks and that she borrowed money from Amka Group worth TZS 3,000, 000/= (Three million shillings). Further, it was argued that the appellant also was involved in supervision of the workmen/ masonry. At page 6 of the proceedings, the appellant stated to have been an entrepreneur thus could manage to 5|Page contribute towards acquisition. At page 8 of the proceedings the Letter of Offer was tendered which is registered in the joint names of the appellant and respondent. At page 13 of the proceedings of the Primary Court indicates that the respondent did not ask any cross-examination questions. According to submission by the appellant, it is settled principle that failure to cross examine the witness on material evidence means acceptance of that evidence. The failure by the respondent to cross- examine the appellant meant that respondent acknowledged the contribution of the appellant. Moreover, the appellant reiterated that SU 1, the respondent at page 18 of the proceedings of the Primary Court and page 8 of the judgment of the trial court indicates that the respondent admitted to have purchased the land some 18 years back before the incident of division of matrimonial asset but did not develop the same. It was upon marriage that was celebrated on 10th August 2007 as indicated in page 6 of the trial Court’s Proceedings such land was developed. It was pointed out that the 6|Page respondent admitted that the appellant and respondent did participate in developing the land. The appellant, as acknowledged by the respondent on page 19 of the trial Court proceedings, used to visit the workmen who were constructing the house. The appellant further reiterated that at page 6 of the proceedings it is indicated the respondent was a mechanics but did not state what was his contribution to the development of the land in question. It was argued that the respondent stated to have borrowed the money from Pride Tanzania Limited for the construction of the house but did not tender any documents regarding the borrowing of the money. According to the appellant, at page 18 of the proceedings and page 8 of the judgment of the trial court the respondent stated to have purchased the land from someone but he did not tender any evidence/ documentary evidence on the sale agreement. In the decision of the District Court at page 8, where it stated that the appellant was solely domestic wife who supervised the construction 7|Page was misplaced. This was not correct as evidence indicated that the appellant was an entrepreneur. However, proceedings are silent on the nature of activities that she undertook in the entrepreneurship were not stated in evidence. The decision of the District Court, which was the first appellate court, stated that acquisition was contributed largely by business activities of the respondent was not supported by evidence. This was a new fact that the District Court introduced in the judgment. The first appellate court should not have interfered with the decision of trial court. It was the appellant’s firm submission that a party alleging contribution on certain properties should prove the extent of contribution in line with section 110 of the Evidence Act, Cap 6 R.E. 2022. In the case of Bibie Maulid vs Mohamed Ibrahim [1989] TLR 162, the position of the law was stated that there must be evidence to show the extent of contribution before an order of division of matrimonial asset. 8|Page The appellant argued that the absence of the evidence on the respondent’s side to have contributed towards acquisition of matrimonial asset, it is fatal. The evidence may be of oral or documentary in nature regarding the extent of contribution towards acquisition of matrimonial assets. The appellant tendered exhibit to show that the property was owned jointly. The division of matrimonial property is not mechanical process, each party is enjoined to prove contribution towards acquisition. In the case of Dr. Olima Michael Kimaro vs Dr. Dereck David Nyaswepa, HC Civil Appeal No 51/ 2022 (TANZLII) the property not proved during the trial cannot be divided as it is the contravention of Section 114 of the LMA. It was the appellant’s view that the 1st appellate Court ordered 30% and 70% share division between the appellant and respondent respectively without proof of the contribution is in contravention of section 114 of the Law of Marriage Act. 9|Page According to the appellant, it should be noted that at page 7 of the judgment of District Court (the first appellate Court) erred to disturb the division of the matrimonial property. It was thus, the appellants prayer that this Court be pleased to allow the appeal by quashing and setting aside the decision of the first appellate Court and restate the decision of the Primary Court that division of matrimonial property be by 50% share to each of the appellant and respondent. The appellant prays for no orders as to costs. On the other hand, the counsel for the respondent argued that it is true that section 114 of the Law of Marriage Act, Cap 29 RE. 2019 provides guidelines on division of matrimonial assets. The main factor that must guide is the extent of contribution of each in terms of money, property or work. It was the respondent’s view that at page 3 of the Primary Court decision, it is clear that there is recognition by the appellant that land in question belonged to the respondent. It is on record that Exhibit P.3 was objected by the respondent to have been forged but the objection was dismissed as the same was considered to be a criminal matter. 10 | P a g e Moreover, according to the respondent it was on record that appellant stated to have contributed a total of 200 bricks which is too little in terms of construction of a house. It was reiterated that division of matrimonial assets between the appellant and respondent should not be equal as the contribution was not equal between the parties. The extent of contribution towards acquisition or improvement of the asset was different. The appellant contributed a little compared to the respondent. Indeed, the allegation of the appellant to have borrowed the money has no evidence at all on whether the same was actually borrowed and applied to the improvement/ acquisition of the matrimonial asset. The respondent further averred that fitting of the windows, installation of the portable clean water services and electricity was not proved by the appellant. The only revelation in the proceedings was indicated that the appellant bought only 3 bags of cement as her contribution towards the acquisition of the matrimonial asset. 11 | P a g e According to the respondent, it was true that SM 1 was not cross examined as the respondent was alone on that without his advocate and the trial court did not explain the right to cross examine the appellant to the respondent in order to exercise his right. Additionally, it was argued by the respondent that Mechanics as a profession is a business/ professional carrier of business nature that brings the money/ income. The respondent being a main bread earner for the family had source of income from his mechanics work. It is also stated that the original certificate of ownership was in possession of Pride Tanzania Limited where it was advanced as security for the loan the respondent took to develop the land. Furthermore, the contribution of the appellant as so-called entrepreneur was not proved as to the nature of activities in entrepreneurship the appellant was undertaking was not stated as well as the amount of income arising from such entrepreneurship was not stated at all. 12 | P a g e It was submitted that respondent acknowledges that there is contribution of the appellant in the existing matrimonial house but not to the extent of contribution entitling her to 50/50 share of the house as she did not contribute in equal terms with the respondent. Apart from that, it was argued by the respondent that the appellant also contributed towards squandering the assets of the matrimonial asset. Regarding the ownership of the land and person who purchased the land, the respondent stated that trial court’s proceedings are lucid that he acquired the land prior to marriage and called one Peris Petro Liumi who sold the land to the respondent in 2005 to testify before the Court on such fact regarding acquisition of the land in question. It was the respondent’s prayer that the decision of the District Court be maintained and upheld for being correct decision as the extent of contribution was not equal between the parties thus these parties could not have a division of matrimonial asset that provides for equal sharing of the asset. As such, it was a prayer that this appeal be dismissed for lack of 13 | P a g e merits and each party be called upon to bear his/ her costs of the case as it originates from matrimonial cause. In rejoinder, the appellant reiterated that number of cement bags were not stated and the fact that respondent did not cross-examine the SM1 meant that he agreed with the testimony of the appellant. Regarding the original certificate being deposited and taken to Pride Tanzania Limited as a security to the loan, it was submitted that the respondent failed to bring them/ evidence thus the respondent proceeded to testify without the certificate. The appellant concluded by reiterating that the respondent did not state the extent of contribution thus the appellant was entitled to 50% share of the division of matrimonial asset. Having heard rival submissions of the parties, I have dispassionately considered the available record to ascertain the validity or otherwise. It is pertinent that the main question to address the appeal is whether the was 14 | P a g e proof regarding contribution of the parties to the matrimonial property i.e. the house at Plot No. 314 Block BG Nzuguni B within Dodoma City. There are only two guiding principles in addressing the appeal, namely: one, criteria for division of matrimonial property. Two, the burden and standard of proof of the case. With regard to the criterion for the division of matrimonial assets upon the divorce decree being granted, Section 114 of the Law of Marriage Act, Cap 29 R.E. 2019. In particular, section 114(1) and 2(b) of the Act emphasize on joint acquisition and improvement of the property and the extent of contribution by each of the parties. This was illustrated in the case of Yesse Mrisho vs Sania Abdul (Civil Appeal No 147 of 2016) [2019] TZCA 597 (7 November 2019) (TANZLII), at page 9-12, where the Court of Appeal stated that: Section 114 of the LMA provides for division of properties acquired by parties by their efforts during the pendency of 15 | P a g e matrimony, and it requires the courts, when considering this issue, to ensure that the extent of contribution of each party is the prime factor. The assets to be determined are also those which may have been owned by one party but improved by the other party during the marriage on joint efforts. The principle drawn from Bi Hawa Mohamed vs Ally Seif (supra) is unambiguous, stating that the efforts made towards acquisition of the said matrimonial property must be assessed and determined, and as also discussed in Bibie Maulid vs Mohamed Ibrahim (supra), the contribution granted should not necessarily lead to 50% share each, since it is dependent on a party's contribution which is the determining factor of what share one should receive and each case has to be considered on its own circumstances. From the provision of section 114(1) and 2(b) of the Law of Marriage Act, the main criterion in determining the share of division of matrimonial 16 | P a g e asset upon decree of divorce being granted is the extent of contribution. The parties should have demonstrated their respective contribution towards acquisition of the said property. It is on record that evidence of the appellant reveals two opposite versions. One, that the land was acquired by the respondent before marriage but was undeveloped until when the appellant and respondent developed it jointly. Two, Exhibit P.3 revealed that the land was jointly acquired. On the other hand, the respondent does not object that appellant contributed towards developing the land thus entitled to a certain share which is lesser to 50 percent. However, it is respondent’s view that the land was acquired prior to the marriage between the parties. Further, the appellant reiterated she sometimes visited the site to supervise the masonry/workmen at the site. Indeed, such supervision if any accounts towards contribution in the acquisition of the property. It is the law in this jurisdiction that participation in supervision of construction counts in joint efforts towards acquisition of matrimonial 17 | P a g e assets. In the case of Hidaya Ally vs Amiri Mlugu (Civil Appeal 105 of 2008) [2016] TZCA 323 (27 January 2016) (TANZLII), at page 10, the Court of Appeal held that: Having said that the High Court properly upheld the lower court’s finding that the respondent was seen supervising the construction, we are settled that he was properly adjudged to have been entitled to the share thereof. Also, we agree with reasoning that the award of 25% in the circumstances of this case was fair. It is indeed the position of both appellant and respondent that appellant’s contribution can be attributed to several aspects relating the acquisition and/ or improvement of the matrimonial property. The fact that appellant contributed to some efforts in terms of bricks, cement bags and visiting the construction site would entitle the appellant to some percent. The main and pertinent question is what percentage would be appropriate in the circumstances given that the 1st appellate court found that appellant was entitled to 30% share while the respondent was entitled 18 | P a g e to 70%. In this appeal, it is the appellant contention that she is entitled to 50% share of the property given the weight of evidence on record as determined by trial Court. That submission was opposed by the respondent. At this juncture, the principles relating to standard and burden of proof come into play. To determine that aspect, the principle in the case of Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020) (TANZLII), at pages 12-13, the Court reiterated that: It was expected for him to adduce evidence showing his extent of contribution on each and every property but such evidence was not forthwith coming. The issue of extent of contribution made by each party does not necessarily mean monetary contribution; it can either be property, or work or even advice towards the acquiring of the matrimonial property. It is clear therefore that extent of contribution by a party in a matrimonial proceeding is a 19 | P a g e question of evidence. Once there is no evidence adduced to that effect, the appellant cannot blame the High Court Judge for not considering the same in its decision. In our view, the issue of equality of division as envisaged under section 114 (2) of LMA cannot arise also where there is no evidence to prove extent of contribution. The evidence on record reveals that appellant contributed efforts in terms of cement bags, 200 bricks, transporting the windows and supervision of fixing them as well visiting the construction site to supervise construction and so on. All these efforts entitled the appellant to division of the matrimonial assets. It is the law that equality in sharing of the matrimonial property is not automatic once existence of marriage is proved and decree of divorce is granted thereto. It depends on the extent/ level of contribution by each party as assessed by the Court in accordance with the available evidence 20 | P a g e on record. Equal division of the matrimonial asset is not ordered at whims of the court rather it is subject of proof vide evidence. In the instant appeal, the records are explicit that the 50% share in division of matrimonial properties is not supported by evidence. The evidence on record is that land was acquired by the respondent prior to marriage. The joint development of the same entitles the appellant to percentage of share but not to the extent of 50% share. Indeed, this court concurs with the appellant’s submission that failure to cross-examine the appellant’s version of evidence precludes the respondent from denying to have accepted the truth of the evidence. Indeed, the Court is guided by the principle in Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) (TANZLII), at page 20, the Court stated that: Indeed, PW1 was not contradicted in this regard during cross-examination. More often than not, the Court has held 21 | P a g e that failure to cross-examine a witness on a particular important point may lead the court to infer that the cross- examining party accepts the witness' evidence and it will be difficult to suggest that the evidence should be rejected. For instance, in Shadrack Balinago vs. Fikiri Mohamed @ Hamza, Tanzania National Roads Agency (TANROADS) and Attorney General, Civil Appeal No. 223 of 2017 (unreported) it stated: "As rightly observed by the learned trial judge in her judgment, the appellant did not cross-examine the first respondent on the above piece of evidence. We would, therefore, agree with the learned judge's inference that the appellant's failure to cross-examine the first respondent amounted to acceptance of the truthfulness of the appellant's account." It should be stated at this juncture that the evidence that was not contradicted vide cross-examination is only related to that there was limited contribution of the appellant towards acquisition of the property. That is restricted to appellant contribution towards the development of the 22 | P a g e asset namely buying some 200 bricks, some cement bags, transporting the windows and supervision of fixing the same as well visiting the site to supervise construction. The aspects of the appellant borrowing money from Amka Group as well as being an entrepreneur lacked cogent proof to have existed and their role in acquisition of the matrimonial asset. The activities of entrepreneurial nature of the appellant were never disclosed even her income arising from such activities. It cannot therefore be adjudged that she contributed equally to the same level with the respondent. However, the aspect of joint ownership of the land in question was categorically rebutted by the respondent’s evidence as the person who sold the land to the respondent testified to that fact. In the circumstances, the finding by the 1st appellate court that there was no evidence to warrant the appellant’s share to be 50% was correct and legally acceptable. In absence of evidence of equal contribution 23 | P a g e rendered the trial court’s finding of 50% share unsupported by any evidence on record. The evidence on record fell short of the legal requirement that it is a duty of the person who wishes the Court to rule in his/her favour to prove on balance of probability as envisaged in sections 3(2) (b) and 110 of the Evidence Act, Cap 6 R.E. 2019. The appellant did not discharge the burden of proof that she was entitled to equal share of the division of matrimonial asset given that there was unequal contribution whereas it is evident that the respondent was the bride earner for the family who contributed significantly to the acquisition of the said matrimonial assets. Given the fact that it was the appellant who wished the trial court to believe that she contributed towards acquisition of the matrimonial asset, it was incumbent upon the appellant to adduce sufficient evidence to prove. This is illustrative in the principle in the case of Maria Amandus Kavishe vs Nora Waziri Mzeru and Another (Civil Appeal 365 of 2019 [2023] 24 | P a g e TZCA 31 (20 February 2023) (TANZLII), at pages 15-16, the Court lucidly stated that: It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies, discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case. We seek inspiration from the extract in Sarkar's Laws of Evidence, 18th Edition M.C. Sarkar, S.C. Sarkar and P.C. Sarkar, published by LexisNexis and cited in Paulina Samson Ndawavya v. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 (unreported), that: "...the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for negative is usually incapable of proof. It is ancient rule founded on consideration of good sense and should not be departed from without strong reason…Until such 25 | P a g e burden is discharged the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of weakness of the other party... "[Emphasis added]. As the contribution of the appellant was ascertained as stated in the foregoing analysis anything else in relation to the construction and development in that land was done by none other than the respondent. The law is clear that a person who alleged in affirmation of existence of a particular fact is duty bound to so prove. The evidence on record do not support the appellant’s case to have contributed equally to the acquisition of the said matrimonial property. Having considered the available record on this matter, it is settled view of this Court that there is nothing to interfere on the 1st appellate 26 | P a g e Court’s finding that the appellant was entitled to 30% share while the respondent was entitled to 70% of the share in that matrimonial asset. The decision was well guided with applicable legal principles and based on the available evidence on record which revealed that there was nothing to support a 50% percent share to the appellant in terms of extent of contribution to the acquisition and or improvement of the matrimonial asset in question. The appeal stands dismissed for lack of merits. It is so ordered. DATED at DODOMA this 20th day of February 2025. E.E. LONGOPA JUDGE 20/02/2025. 27 | P a g e