PC CIVIL APPEAL NO 15467 OF 2024

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 15467 OF 2024 (Originating from matrimonial cause No. 10 of2023 of the Primary Court of Lindi District at Mingoyo and Matrimonial Appeal Case No, 01 of2024 of Lindi District Court at Lindi) SHAMTE MUSSA LIDANI................... ....APPELLANT VERSUS SOMOE HASSANI CHINOWA.................. .... ......................... RESPONDENT JUDGMENT id' December 202J & lM'‘ January 2025 DING'OHI, J; After the ultimate demise of her first husband in 2020/ the respondent was blessed with another marriage with the appellant herein. It was contracted on 08/07/2021 under Islamic rites. This marriage did not last long. It was attacked by the misunderstandings' wind which followed the appellant issuing Islamic tafaka to the respondent on 20/12/2022. During the subsistence of their marriage parties were living in the mosque where the appellant made his life even before the marriage. The Marriage Page i of 20 Reconciliation Board failed to reconcile parties herein which necessitated the appellant to initiate the matrimonial dispute subject to this appeal in the trial court. In the trial court, the appellant successfully petitioned for divorce and division of the matrimonial property in that it declared the marriage between the parties herein irreparably broken down. It proceeded to issue a. decree of divorce and divided the only property (a house) at 40% and 50%, respectively. The 10% of the value thereof was, for unknown reasons, not divided. On appeal, the first appellate court found that the respondent contributed towards the acquisition of the matrimonial property (a house) more than the appellant from the proceeds of the distribution of the estates of her late husband. It accordingly varied the division to 30% and 70% respectively. That outcome disgruntled the appellant who lodged the instant appeal raising the following grounds; 1. That the trial Magistrate erred in law and fact by holding that the Appellant is entitled to only a 30% share of the matrimonial house, without considering the Appellant's categorical testimony regarding his substantial contributions to the acquisition of the disputed house. Page 2 of 20 2. That the trial Magistrate erred in both law and fact by ordering the division of the purported matrimonial home based on the Respondent's unsubstantiated e vidence, while disregarding the Appellant's evidence, ultimately reaching an erroneous conclusion. 3. That the trial Magistrate erred in both taw and fact by entertaining the appeal despite serious errors in the judgment, where the court failed to provide instructions regarding the 5% of the marital home that remained undivided between parties. In this appeal, the appellant enjoyed the services of Mr Robert Chuwa, the learned advocate. The respondent was for herself unrepresented. It was agreed and finally ordered that the appeal be disposed on by way of written submissions. Both sides complied with that order. In supporting the appeal against the decision of the first appellate court, the learned advocate opted to argue the first and second grounds of appeal together. He submitted that the first appellate court disregarded the appellant's evidence of his contribution to the acquisition of the matrimonial asset. To underscore his point, the learned advocate referred this court to the provision of section 114 (2) (b) of the Law of Marriage Act Cap 29 R.E 2019 which provides for the division of the matrimonial Page 3 of 20 property based on the extent of contribution by parties to a marriage towards acquisition of the property. The learned advocate contends that in the case at hand the appellant testified before the court on how they acquired the matrimonial home. He insisted that the evidence in the record shows that when the appellant married the respondent, she had an undeveloped vacant plot and there is no dispute that the parties were living together in the mosque. Mr Chuwa added that it was the appellant who insisted that they should find their independent matrimonial house and he is also the one who built the alleged matrimonial house. According to him, it was unfair for the district court to grant him 30% out of the value of the matrimonial house jointly acquired. In enlarging on, the learned advocate submitted that the appellant brought the witnesses who used to work under the respondent's direction on the construction of the house in dispute before the trial court. According to Mr Chuwa, both witnesses stated before the trial court that whatever money was needed to implement the construction of the said house was provided by the appellant and even the construction materials were brought by the appellant through his car. Page 4 of 20 The learned advocate finds that the division of 30% to the appellant was not fair since the said house was constructed by equal contribution and the whole construction was made by the appellant's own money. On this, Mr. Chuwa placed reliance on the case of Yesse Mrisho vs. Santa Abdul (Civil Application 36 of 2020) [2023] TZCA 215 where the Court held among other things that; ITe also hold that the respondent contributed equally to the acquisition of the house in issue, a matrimonial asset, and thus each party is entitled to receive an equal share.' He also cited the case of Robert Aranjo vs. Zena Juma [1986] T.LR. 207 to bolster his position regarding the equal contribution to the equal division of the matrimonial asset. In his further contention regarding the first and second grounds of appeal, Mr. Chuwa argued that the respondent tendered a bank statement before the trial court as a means of proving her contribution to the said house. However, according to the learned advocate, the said bank statement does not verify the use of the said money in the construction of a matrimonial house. Mr Chuwa was of the view therefore that the respondent had a duty to prove before the court of law the allegation Page 5 .of .20 raised by herself as to the use of her inheritance which included the proclaimed six million shillings to construct the house in dispute. To buttress the contention, he referred me to the landmark case of Anthony M. Masanga vs. Penina (Mama Mgesi) and Another (Civil Appeal No. 118 of 2014) [2015] TZCA 556 where the Court of Appeal insisted that the burden of proof lies on the party who alleges anything in his favour. It was further submitted by Mr, Chuwa that the respondent failed to provide reliable evidence before the trial court unlike the appellant who was able to provide reliable evidence and his witnesses managed to adduce direct evidence which was convincing enough. According to him, since the appellant's evidence was heavier than that of the respondent, he was supposed to win the case. To that effect, the learned advocate cited the case of Herned Said vs. Mohamed Mbilu [1984] TLR 113. In elaborating on the third ground of appeal, Mr. Chuwa submitted that the trial court divided the matrimonial house into percentages where the appellant herein was granted 40% and the respondent was granted 50%. According to Mr Chuwa, 10% was left undivided to neither part on which the first appellate court was tied in asserting the division of the said matrimonial while 10% is undivided from the trial court. Page 6 of 20 The learned advocate added further that since 10% was never decided as to whom would benefit from it, the only proper remedy was either to file a review or a revision on the left undivided shares. On her part, the respondent submitted in the same manner as the appellant's advocate did, that is, she argued against the first and second grounds, together. It is the respondent's case that the issue of division of matrimonial property is governed by the law of Marriage Act Cap 29 R.E 2019 on which the provision of section 114 (1) gives power to the court to grant the divorce and division of the matrimonial properties acquired by the parties during the marriage by their joint efforts. She added that, in exercising the power under section 114 (2) of the said law, the court should have regard to the customs of the community, the extent of the contribution made by each party, any debt owing by either party which contracted for their joints benefit and need of infant if any. The respondent contended that the first appellate court magistrate had regarded the evidence given by her which shows that the disputed house was constructed by her (respondent) from the money she inherited from her late husband's probate who died in January 2020. According to her, upon the death of her late husband, in June 2021, she was given a Page7pf20 total amount of Tshs. 32,000,000/= as inheritance and the same year in July she contracted an Islamic marriage with the appellant. She stressed therefore that when the appellant married her, he promised to be a good husband who would manage the properties including the disputed house. Thus, the first appellate court had correctly decided the matter in her favour as required by the provisions of section 114 (2) of LMA, which inclined towards equality of division of the jointly acquired matrimonial properties. She referred this court to the Court of Appeal's earlier decision in the case of Samwel Moyo vs. Marry Cassian Kayombo [1990] TLR 197 (2000). It is the respondent's stance therefore that it is not true that the appellant contributed to building the disputed house; rather, he begged to be the supervisor. In that capacity the Respondent trusted him completely in that she used to withdraw the money from the bank and gave it to the appellant to supervise the construction, not knowing the man was On a mission. As to the witnesses brought by the appellant who alleged used to work with him in the construction of the disputed house, the respondent submitted that obviously, those witnesses would say the money was from Page 8 of 20 the appellant since he was the one paying for building materials but they never knew the sources of the money where the appellant was tunneling. The respondent was of the view that even the case of Yesse Mrisho (supra) cited by the appellant in his submission does not re-count under the circumstances of this case. According to her, in the cited case the parties contributed equally towards the acquisition of the properties. It was on that basis, that the court ordered equal division of the properties unlike in this case where the respondent was the one providing the money whereas the appellant’s duty was to supervise the same. She rested his submission on the first and second grounds of appeal by arguing that she had explained well in her testimony before the trial court regarding the money she used to give the appellant to buy building materials including galvanized steel, cement, wires, water pipes, etc. According to the respondent at the trial court, she tendered an account statement from CRDB Bank which shows the transactions on which the appellant and the respondent were drawing the money from the Bank. She stressed further that the appellant never shows up in his evidence where the money he mentioned used to erect the house came from. The respondent insisted further that the first appellate court was right in Page 9 of 20 deciding the same since there were no equal joint efforts in the acquisition of the matrimonial properties. Concerning the third ground, it was argued by the respondent that among the powers of the appellate courts is, to review the procedures and the decisions, on both points of law and facts, of the trial court to ascertain whether the proceedings were fair and that the proper law was applied correctly. And, if necessary, to come up with new findings if any, or to uphold the decision of the trial court. In this respect, she also relied on the case of Leonard Dominic Rubuye t/a Rubuye Agrochemical Supplies vs. Yara Tanzania Limited (Civil Appeal No. 219 of 2018) [2022] TZCA 419. Based on the above-cited case the respondent is of the view therefore that the first appellate court was in a position to re-evaiuate the evidence in the lower courts' records. In a brief rejoinder, apart from reiterating what had already been submitted in chief, Mr Chuwa submitted that the appellant in his submission and according to the trial court records plus his witnesses proves that he was the one who paid the workers who used to construct a house at Mnazi Mmoja within Liridi region, making supervision and paying for the construction materials of the said matrimonial house. Page 10 of 20 Having carefully gone through the lower court records, memorandum of appeal, and submissions by both sides, Based on the grounds of the appeal and the submissions made for and against the appeal, three issues call for the determination by this court. One is whether the house at Mnazimmoja is a matrimonial property. If the issue is answered in the affirmative, the following issue is whether both parties herein contributed to its acquisition and to what extent. The third issue is on the ratio of division if the second issue is also answered in the affirmative. 1 shall now start with the first issue as to whether the house at Mnazimmoja is a matrimonial asset. The definition of what constitutes matrimonial assets has been well settled by the Court of Appeal of Tanzania in the case Asile Ally Said vs. Irene Redentha Emmanuel Soka @ Another (Civil Appeal No. 80 of 2020) [2024] TZCA 33, where the Court quoted the definition from Halsbury's Laws of England, 4th Edition to mean; '77?e phrase family assets ' has been described as a convenient way of expressing an important concept; it refers to those things which are acquired by one or both of the parties, with the intention that there should be continuing provision for Page 1.1 of 20 them and their children during their joint lives, and used for the benefit of the family as a whole. The family assets can be divided into two parts (1) those which are of capital nature, such as the matrimonial house and the furniture in it (2) those which are of revenue producing nature such as the earning power of husband and wife'. Carrying the above-quoted definition, there is no dispute that at the time the disputed house was built, the appellant and respondent were husband and wife. I have bolded some parts of the definition given there by the Court of Appeal purposely because as per the above definition, a matrimonial asset may even be something bought/constructed by one of the spouses during the marriage with the intention that there should be continuing provision for them and their children during their joint lives. It follows that even if there may be no evidence of the direct contribution, by parties to marriage, towards the acquisition of the matrimonial asset, the property acquired by one spouse with an intention for use by both parties to marriage may be taken as a matrimonial property. Since the house at Mnazi Mmoja was developed when the parties were living together as husband and wife respectively and there is evidence that the respondent contributed in one way and another as will Page 12 of 20: be apparent herein the house is a matrimonial property. The next issue is how much each party has contributed towards the acquisition of that property. I have dutifully considered the submissions by both sides on that issue. The submission by the learned advocate for the appellant was to the effect that the first appellate court erred in its finding that the appellant was entitled to get 30% out of the value of the house and the respondent entitled to 70% which according to him was not fair. The reason for unfairness is that since parties contributed equally towards the acquisition of that property they are entitled to equal division. On her part, the respondent is of the view that the appellant did not contribute anything to the acquisition of the property other than being the supervisor. In answering this issue, the evidence as to the extent of the contribution of parties to the marriage towards the acquisition of the matrimonial property is of utmost importance. That is because the court will mostly rely on the evidence adduced by the parties to prove the extent of the contribution. Section 114 of the Law of Marriage Act [CAP. 29 R.E. 2019] reads; Page 13 ci 20 114. (1) The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their join t efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1j the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) N/A and (d)N/A (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.' In this case at hand/ upon careful perusal of the records of the trial court (the primary court)/ it is an undisputed fact that before the Page 14 of 20 construction of the house, the respondent had. a plot from the distribution of the estate of her late husband. In addition to that, the appellant doesn't dispute also that the respondent gave him the sum of Tshs. 6,000,000/= for the purpose of purchasing building materials in developing that plot. That had even been confirmed by the appellant himself on page 7 of the trial court-type proceedings. The appellant is quoted to have told the trial court that; Pamoja nilipokea kiasi cha fedha m'dioni sita na kiwanja kitupu kwa aji/i ya kujenga.' Back to the raised issue, I have realized that each party has testified what he/she contributed towards the acquisition of the house. Upon attentive scanning of the lower court records, I have noted that the evidence that the respondent also gave the appellant the sum of Ths. 16,000,000/= and 3,900,000/= obtained from the estate of his late husband is sounding. There is also evidence that the respondent obtained the sum of Tshs 600,000/= after selling surgum which she also used to develop matrimonial property through the appellant. That evidence would not pass without being considered as rightly done by the first appellate court. On the side of the appellant, apart from only mentioning that he Page 15 of 20 contributed some money to developing the house, there is nowhere the source of the said money was stated. For instance, on page 10 of the trial court typed proceedings, the appellant was recorded saying; 'Niiitumia pesa yangu katika ujenzi wa tofali za msingi 1,225 tofali za boma 1590 cose ya juu 1,410 kwa mzunguko jumla 3,870,000/-.. .Niiikuwa naieta vitu vyote vya ujenzi kwa kutumia gari yangu kenta T. 990 AJE tokea Dar es salaam hadi mnazimmoja. NHichukua simenti, kwa awamu tofauti ya kujengea, mfuko 100 napakia na mabati 130, na nondo themanini (80) kwa mara ya kwanza nikaieta tena riondo 40 zina ujazo milimita 12 kwa urefu wa futi 38. Mbao za kupasulia zHinunuHwa Lindi I/u/u na nyengine tumeagiza wapasuaji. Gharama zote hizo ni zangu.' In addition to that, a carpenter who testified in the trial as SM6 was quoted saying; 'Mimi ni fundi wa milango niiipewa kazl na rhdai, nilishughulikia miiango 5 ya panel, miiango ya kuunga 4 na miango mmoja wa bati, fremu za miiango 7.... Page 16 of 20 Niieiewana bei na mdai kuwa kiasi cha miiango ya paneii iaki mbiii kiia miango mmoja nikatengeneza milango mitano jumia milioni moja kwa miiango ya panel...' On the other side, the respondent was also recorded from pages 28 to 31 of the trial court typed proceedings saying that; 'Tulifyatua tofaH, tipper moja ya mchanga iiifyatua msingi. Tulivyomaliza kazi hiyo milioni sita (6/000,000/=) niliyopewa na Watoto ikawa imekweisha. Tukaanza kuingia kwenye A/C, safari ya kuanza kununua bati nikatoa milioni tatu (3/000/000/=).... Mdai aiinunua bati mia za kwangu na theiathini (30) za mdogo wangu. Viroba vitatu vya misumari, niasinki ya choo matatu (3). Na mabomba ya kufiash choof binding wire za bati. Tuiianza kutafuta boriti zilikuwa mnazi. Mdai alimtafuta kijana wa kuchana boriti akiwa kama msimamizi mimi nilikua natoa pesa kwenye A/C. Mdai kama msimamizi aiimwita fundi wa madirisha akaenda kupima madirisha funsi aiitaka kiasi cha iaki tisa (900,000/-) aiiomba iaki tatu tumtanguhzie anunue maligafi. Nikamaiizia pesa yote kwa kumpa Page 17 of 20 mdai aka/ipe kama msiniamizi. Kazi ya kucaapia, Liamba alileta tipper tatu za mchanga tukaanza uchapaji. Tulitia floor chini...... Nikarnkabidhi Hassani laki tatu (300,000/=) kwaajih‘ya kununua motor.' As I have said and as the extract of the evidence shown, it is obvious that the respondent contributed much in monetary in the acquisition of the suit property. The circumstances and evidence show that the appellant was mostly a supervisor in the development of the hose as stated by the respondent. The supervising construction of the matrimonial house is also a great and recommendable contribution to that capacity. It is a cardinal principle of the law under section 114 (2) of LMA that the issue of the extent of the contribution made by each party in the acquisition of the property does not necessarily mean monetary contribution; it may also mean providing the property, work, or even advice towards the acquiring of the matrimonial property. In this case at hand, as found herein above, the evidence is not there that the appellant whose property is not in his name made a monetary contribution in the acquisition of the property. His contribution was, as said, mainly supervisory. Page 18 of 20 I am aware of the complaint that in the determination of the percentage ratio of the division of a house, 1.0% of the value thereof was left undivided by the trial court. I need not be detained much in determining the issue because after revisiting the trial court judgment, particularly on page 35, it is true that the trial court did not explain why that 10% was not determined, but I think that was cured per the decision of the first appellate court which replaced the decision of the trial court, on that issue, and which decision is subject to this appeal. Given the above reasoning, I find nothing to fault the decision of the first appellate court. I am satisfied that the evidence by the respondent's side given at the trial court as to the extent of contribution towards the acquisition of the matrimonial property was heavier as compared with that of the appellant's part. It follows therefore that, the decision of the first appellate court on the division of the value of a house at 30% and 70% ratios, respectively, is not disturbable under the circumstances of this case. The appeal is therefore dismissed with no order as to costs. Dated at Mtwara this 13th day of January 2025 Page 19 of 20 JUDGE 13/01/2025 COURT: Judgment delivered this 13th day of January 2025 in the presence of Mr. Robert Chuwa, the learned advocate for the appellant, and respondent in person. 13/01/2025 Page 20 of 20