Kaindimye

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA MATRIMONIAL APPEAL NO. 832 OF 2024 (Arising from Matrimonial Appeal No. 7 of2023 in the District Court of Tabora, Original decision of Tabora Urban Primary Court in Matrimonial Cause no. 16/2023) SALUM KALINDIMYE BUNDALA........ ............. APPELLANT VERSUS ASHA ALLY MAGANGA...................... RESPONDENT JUDGMENT Date of Last Order: 15/08/2024 Date of Delivery: 19/09/2024 MANGO, J. The Appellant Salum Kalindimye Bundala and the Respondent, Asha Ally Maganga contracted Islamic marriage back in 1968, later in 1980 they separated. During substance of marriage, they were blessed number of children. They also acquired some properties including a house located at Kanyenye Street within Tabora Municipality. It is also alleged that, the couple acquired another house located at Ilolangulu within Uyui District which is subject of the appeal at hand. In 2023, the Appellant instituted Matrimonial Cause No. 16 of 2023 before Tabora Urban Primary Court praying for divorce and division of matrimonial properties. Having found the marriage between the Appellant and the i Respondent has been irreparably broken down, the trial court granted a divorce decree and proceeded to issue equal distribution of the house located at Kanyenye. Unfortunately, the court did not make any order in relation to the house located at Ilolangulu. The Respondent was not satisfied with the division of matrimonial properties. She appealed to the District Court of Tabora via PC Matrimonial Appeal No. 07 of 2023. The first Appellate court maintained the orders granted by the trial Court and issued an additional order on the house located at Ilolangulu. The District Court ordered that, the house located at Ilolangulu be also equally divided among the parties. This order aggrieved the Appellant hence decided to file this appeal with 5 five grounds: 1. That the first Appellate Court erred in law and in fact by ordering the division of Ilolangulu House to fifty -fifty without proof of the extent of contribution by the Respondent. 2. That the first Appellate Court erred in law and in fact in making presumption that the Respondent contributed in acquisition of the house in Ilolangulu without considering the evidence on record 3. That the first Appellate Court erred in law and in fact when fails to confine herself to the prayer of rectifying the correct location from Ulyankuru to llolanguru and give orders whether the leave is granted or withdrawn 4. That the first Appellate Court erred in law and in fact by relying on extraneous matters against the interest of justice 5. That the first Appellate Court erred in law and in fact when held that the house of Ilolangulu within Sikonge District is not a new fact 2 When the matter was called for hearing, the Appellant was represented by Ms Magreth Mabula whereas the Respondent was represented by Mr. Hassan Kilingo, learned advocates. The matter was argued by way of written submission. I am grateful to the advocates who represented parties in this appeal for their compliance with the schedule of submissions. In her submission in support of this appeal, the Appellant's advocate argued the first and second grounds of appeal collectively. She then submitted on the remaining grounds of appeal separately. Submitting in support of the first and second grounds of appeal Ms Mabula asserted that, the Respondent failed to establish the amount of her contribution towards acquisition of the house located at Ilolangulu. She is of the view that, the District Court wrongly ordered equal division of the same without proof of the Respondent's contribution to that extent. She referred this Court to the cases of Mbegu Mohamed vs Mariam Ramadhani (Civil Appeal 22 of 2021) [2021] TZHC 9168 (22 November 2021), Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020) and Bi Hawa Mohamed vs Ally Sefu (Civil Appeal 9 of 1983) [1983] TZCA 12 (29 November 1983) in which the Court insisted that, in division of matrimonial properties, extent of contribution of each spouse should be considered. She also submitted that, the house located at Ilolangulu is not party of matrimonial properties between by the Appellant and the Respondent. According to the learned advocate, the house at Ilolangulu was acquired by the Appellant's individual efforts with the assistance from residents of Ilolangulu area. Citing section 58(1) and 60(a) of the Law of Marriage Act, 3 [Cap. 29 R.E 2019] she argued that, the law does not prohibit spouses to own their personal properties. She added that, for a property acquired during subsistence of the marriage to be considered as a matrimonial property, it should be acquired by joints of efforts of the husband and wife. Thus, the house at Ilolangulu is not part of matrimonial properties between the Appellant and the Respondent. On the third ground of appeal the learned advocate argued that the first appellate court failed to grant the prayer for rectifying an error in relation of location of the disputed premises as it appears in the grounds of appeal filed by the Respondent before determining the appeal. She argued that, in her grounds of appeal, the Respondent who was the Appellant before the District Court challenged the exclusion of a house located at Ulyankuru, Sikonge District in Tabora Region. The learned advocate argued that, the Court did not rectify the location of the house from Ulyakuru to Ilolangulu despite a prayer for such rectification by the Appellant. On the fourth ground of appeal, she argued that the court relied on extraneously matters in concluding that the house at Ilolangulu was acquired by joint efforts of the Respondent and the Appellant. She referred the Court to page 15 of the judgement of the District Court which indicates that, in reaching to such a decision, the Court relied on the fact that the Appellant and Respondent used to reside and work together during susbsistence of their marriage since 1968. She argued that, no witness has stated that the Appellant and Respondent lived and worked together since the year 1968. 4 On the fifth ground of appeal the Appellant advocate challenged the description of the house in dispute. She argued that, the manner the house in dispute was described introduced a new fact which is not borne with court record. She explained that, no witness testified on a house located at Ilolangulu village in Sikonge District. She noted the prayer by the Respondent's advocate to rectify the location of the house from Ulyankuru to Illolangulu. She however argued that, such amendment concerned only the name of the village thus, the location of the house after the amendment reads, Ilolangulu village, Sikonge District in Tabora Region. In his reply submission, advocated Kilingo also argued the first and second ground of appeal collectively. He submitted that, the Respondent established her contribution towards acquisition of the matrimonial properties. He referred the Court to the Respondent's testimony in which she testified to the effect that, she lived and worked together with the Appellant from the year 1968 when they married until when they separated in 1983. He argued that, the fact that the Respondent stated clearly that she and the Appellant used to cultivate tobacco, maize and paddy proves their joint efforts towards acquisition of the two matrimonial houses located at Kanyenye and Ilolangulu. He argued further that, in addition to taking part in farm works with the Appellant, the Respondent gave the Appellant love, care and comfort. He cited the case of Regnard Dartda vs Felichina Wikesi (Civil Appeal 265 of 2018) [2020] TZCA 1748 (25 August 2020) to cement his argument. He also cited the case of Tumaini M. Simoga vs Leonia Tumaim Baienga (Civil Appeal 117 of 2022) [2023] TZCA 249 (12 May 5 2023) in which the Court held that contribution in acquisition of matrimonial properties is not limited to monetary contribution. On the third and fifth grounds of appeal, the counsel for the Respondent conceded that the location of the house in dispute was wrongly written in the petition of appeal. He argued that, the errors were caused by a slip of pen and he prayed to have the same rectified in his submission since the matter was heard by way of written submissions. On the word Sikonge which appears in judgement, he argued that it was an error or mistake committed by Hon. Magistrate during composition of judgement. Citing the case of Yoktan Gerald Nyondwi vs Arab Contractors-Elsewedy Electric (Civil Application No. 342/18 of 2022) [2024] TZCA 373 (20 May 2024), he submitted that, a litigant should not be penalized from mistake committed by officer of the court or the Court. On the fourth ground of appeal, he submitted that, the court did not rely on extraneous matter because the parties were living together and they all took part in farming activities in which they grew maize, paddy and tobacco. He proceeded to state that, the house located at Ilolangulu is the result of their joint efforts. In her brief rejoinder, the Appellant advocate reiterated her submission in chief. On the alleged contribution of the Respondent in acquisition of the matrimonial properties, she insisted that the Respondent's contribution is limited to love, care and comfort to the Appellant and not monetary. She quoted some paragraphs in the Respondent's submission which suggest that the Appellant had monetary contribution toward the acquisition of the 6 properties. She argued that, such submission is not borne by evidence in record and it's a new issue which was not raised during trial. Having dispassionately considered the arguments from both parties and record of the lower courts, I found that, parties do not dispute that they once married and their marriage has irreparably broken down. This is evident from the fact that neither party have raised that issue in their appeals before the District Court and this Court. The disputed issues in this appeal may be divided into three issues that include, which properties constitute matrimonial assets, extent of contribution of each party and division of the properties. This is reflected in the grounds of appeal that were raised by the Respondent before the first appellate Court and the Appellant's grounds of appeal in this appeal. Parties do not dispute that a house located at Kanyenye was acquired through their joint efforts. The only dispute regards the house at Ilolaagulu as st appears in the first and second ground of the appeal before me. While the Appellant alleges that the house at Ilolanguru was acquired by his individual efforts, the Respondent alleges that the house was acquired by their joint efforts. Since the main point of contention in this issue is lack of evidence as to whether the house was acquired during subsistence of the marriage and contribution made by the Respondent in the said acquisition, I had to go through evidence adduced during trial. Evidence in record establishes that the house at Ilolangulu was acquired by joints efforts of the Appellant and the Respondent. This is evident from the Appellants testimony in which he stated clearly that the plot at which house was constructed was purchased 7 during subsistence of their marriage. For ease reference the testimony of the Appellant before the tribunal is hereby reproduced as follows; 'Tuiioana mwaka 1968 ndoa ya kiislam, tumetengana tangu 1980 mpaka ieo hatuishi pamoja kwasababu ya tabia yake sio nzuri na tuiisuiuhishwa biia kufanikiwa. Mali tulizochuma pamoja ni nyumba ya kanyenye ambayo tumechuma na mke mkubwa, nyumba ya Ilolangulu ni nguvu zangu rnwenyewe na ni/isaidiwa na watu, heia niiimpatia yeye akanunua kiwanja cha Ilolangulu, nyumba ya Ilolangulu tumeanza nae maisha na mke yule mwingine.' The paragraph may be informally translated as follows, 'We married in 1968, we separated in 1980 due to her bad behavior. We were unsuccessfully mediated. Among the properties we had acquired together is a house at Kanyenye. The house at Ilolangulu was constructed by my individual efforts assisted by other people. I gave money to the Respondent to purchase the plot at Ilolangulu. I started my life at the house located at Ilolangulu with another wife.' The Appellant's testimony as to how the plot was acquired contradicts the evidence adduced by his witnesses. According to SM2 Fundi Maulid, the Appellant moved to Ilolangulu village as a mere guest. He was staying with his relative and he was cultivating farms owned by his relative. SM4 Mfaume Hassan Mfaume testified to the effect that the plot on which the house was constructed was rnerey given to the Appellant by one of the residents of the area, in the efforts of resolving endless disputes between the Appellant and his relative. A similar piece of evidence is given by SM5, Nasoro Mlezi who stated that the Appellant was staying at Mzee Ramadhani's place. After the demise of Mzee Ramadhani, a dispute arose and the Appellant was given the land on which the house at I’oianguL was constructed by the assistance 8 of the villagers. With such evidence it is not clear whether the Appellant acquired the plot by purchasing as he stated or the land was merely given to him as stated by his witness. The contradiction in the Appellant's testimony has been cleared by the testimony of the Respondent and her witnesses. The Respondent stated that they were residing in the house at Ilolangulu with her husband before she went in Dar es salaam to take care of her sick mother who later died. When she came back, she found instructions from the Appellant that, she shouldn't go to their house at Ilolangulu until when he will come to their house at Kanyenye. Her testimony regarding existence of the house at Ilolangulu before their separation is also reflected in the testimony of SU2, Shabani Mrisho and SU3 Tatu Mussa. The two witnesses stated that, the Appellant and the Respondent used to stay together as husband and wife in their house at Ilolangulu. Later the Respondent disappeared and the Appellant brought another woman in the house. The Appellant did not cross examine the two witnesses. This establishes that, what they stated is nothing but the truth. In that regard I find no reason to fault the decision of the District Court that the house at liolanguiu is part of the matrimonial properties of the Respondent and the Appellant. As to the contribution of each spouse in the acquisition of the two houses, I agree with the District Court that they both contributed equally. In holding so I considered the fact that, evidence in record establishes that, the Appellant and the Respondent acquired the properties through farming. There is no evidence that the Appellant or Respondent had any other income generating activity than farming. It is evident also that, neither of them has 9 even attempted to establish his individual contribution towards acquisition of the two properties. Thus, the District Court correctly held that, their contribution is fifty fifty. On the distribution of the two matrimonial assets, I find the same to be not favourable for the parties as it will involve disposition of the assets in order for each of them to have the awarded 50%. Given their age, they are all at their 70's, this mode of division will cause more hardships in their life. In that regard 1 find it prudent for each of them to continue holding the house that he used to reside after their separation in the year 1980. The house at Ilolangulu should be the property of the Appellant who used to stay there with the other wife while the Respondent should be maintain ownership of the house at Kanyenye where she used to stay with her children from the year 1980. Coming to the third and fifth grounds of appeal, Court record clearly establishes that the error as to the location of the house in dispute was rectified. This is evident from the fact that, in its judgment the District Court had not mentioned the house at Ulyankuru except in the grounds of appeal which were merely reproduced. The Court noted the prayer made by the Appellants counsel and, being guided by the record from the trial Court, the District Court proceeded to grant the prayer as it appears in evaluation of evidence and final verdict issued by the District Court. Moreover, the errors did not prejudice the rights of either of the parties thus, even if it wouldn't have been rectified, it would have been easily disregarded by employing the overriding objective principle. io The fourth ground of appeal shouldn't detain much this Court. Findings in respect of the first and second grounds of appeal establishes clearly that the District Court considered nothing except evidence adduced by the parties during trial. By doing so, it cannot be considered to have considered extraneous matters in its decision. In the upshot, the appeal is dismissed, orders on division of matrimonial properties is varied to the extent stated in this judgement. However, given circumstances in this appeal, I do not award costs. Dated at Tabora this 19th day of September 2.024 Z. D. MANGO JUDGE 11