PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA PC CIVIL APPEAL NO. 1422 OF 2024 (Arising Out of Civil Appeal No. 21 of2023 from the Arumeru District Court, Originating from Matrimonial Cause No. 01 of2023 from Emaoi Primary Court.) SOPHIA MICHAEL LUBOTE APPELLANT VERSUS OBEDI LESKAR LUKUMAY RESPONDENT JUDGMENT 11/06/2024 & 26/07/2024 BADE, J. This is a second appeal. From the records, the material facts leading to this appeal can be discerned as follows: the Appellant petitioned before Emaoi Primary Court (Henceforth "the trial court") for a decree of divorce, child support and division of matrimonial property against the Respondent. The trial court heard the evidence of both sides and ruled that the Appellant failed to prove that their marriage had broken down irreparably. The trial court issued an order for separation for a period of two years and proceeded to distribute matrimonial properties, whereby the rental house situated in Dodoma was divided equally among the / Page 1 of 22 parties and the farm measured six acres situated at Segara Dodoma was also ordered to be divided equally between parties. On top of that custody of the three issues was placed to the Appellant, while the Respondent was ordered to sponsor their education expenses and the remaining basic needs were put under the Appellant. The Respondent was given visitation rights to the children. The Appellant was not amused by the separation order, division of matrimonial properties and maintenance order and thus preferred her appeal to the District Court of Arumeru (Henceforth "the first appellate court")- The first appellate court after hearing the submission of both parties made its own findings and eventually, set aside the separation order on the reason that the evidence adduced at the trial court proved that the marriage has irreparably broken down. The first appellate court proceeded to issue a decree of divorce. The first appellate court upheld the decision of the trial court on the division of matrimonial property, custody of children, and maintenance order. Hence, the appeal was partially allowed, and the remainder was dismissed for want of merits. The Appellant was aggrieved by the said decision and hence lodged the instant appeal. Kt I Page 2 of 22 The Appellant raised five grounds of appeal in her petition of appeal which the court found imperative to reconstruct for ease of understanding: i. The first Appellate court erred in law and fact when upheld the decision of the trial court on the distribution of matrimonial properties. ii. Both the first appellate court and the trial court grossly erred in law and fact when ordering distribution of matrimonial properties between the Appellant and the Respondent without taking into consideration the extent of contribution of each party. iii. The first appellate court erred in law and fact for upholding the decision of the trial court which left aside other matrimonial properties including the house located at Oljoro Arusha, a farm measuring 6 acres located at Kiteto, and all other properties in Arusha Region. iv. The first appellate court erred in law and fact when it failed to make orders on the extent of monthly maintenance to be made by the Respondent after declaring the marriage between the parties had broken down irreparably. Page 3 of 22 v. The trial court erred in law and fact for failure to evaluate the evidence presented by parties as a result it reached into unjust decision. This appeal is disposed of by way of written submissions. The Appellant appeared in person, unrepresented as she was aided by advocate Caroline Mollel from the Legal and Human Rights Centre. The Respondent also appeared in person unrepresented. Arguing the 1st and 2nd grounds of appeal, Ms. Caroline submitted that the first appellate court upheld the decision of the trial court with respect to the distribution of matrimonial property without justifiable reason. She contended that it is clear from the evidence of the court that the Appellant testified on her contribution towards the acquisition of matrimonial properties as she was a teacher since 2009 and in the first months of her job, she took a loan of TZS 6,000,000 which was used to start the business for the Respondent whom by that time was unemployed. The first business collapsed in the hands of the Respondent and the Appellant again took another loan of TZS 6,000,000 that was again used in business. Moreover, Ms. Caroline submitted that parties resided in their matrimonial house that was built by the major efforts of the / Page 4 of 22 Appellant, which entailed her taking a loan to build a house in the said plot. The Appellant later moved to Dodoma where she took another loan, purchased a plot of land, and built a house. She further argues that there is nowhere in the record of the trial court that the Respondent testified on his contribution towards the acquisition of the matrimonial property to warrant him an equal division of the same. She contends that the principle is that both parties have to show their extent of contribution in the acquisition of matrimonial assets. The question is where in evidence does the Respondent show his extent of contribution? To support her position, she cited the case of Anastazia Clement vs Jeremiah Liacirtus Kunsindar, PC Matrimonial Appeal No. 29 of 2021. That, the provision of section 114 (2) (b) of the Law of Marriage Act, [CAP 29 R.E 2019] provides the distribution of matrimonial property shall be awarded based on evidence by both sides showing the extent each side contributes to the acquisition of such property. To buttress her position, she cited the case of Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo, Civil Appeal No. 102 of 2018. Concerning the 3rd ground of appeal, Ms. Caroline submitted that the Appellant testified that their matrimonial properties included two rage 5 of 22 houses, one of which had seven rooms situated at Dodoma; and another one having five rooms situated at Oljoro within Arusha region, a farm measuring 6 acres located at Segara Dodoma, another farm measuring 6 acres located at Kiteto and one more farm measuring 1/4 acre located at Segara Dodoma, and Commercial room (commonly known as a frame) located at Oljoro Arusha. Ms. Caroline contends that the Appellant testified that she was the one who acquired most of their matrimonial properties with close to non-assistance from the Respondent as he was not working. Reading the proceedings of the trial court the Respondent never denied the fact that the Appellant was the breadwinner even when the Appellant formed two different businesses for him and failed to maintain them. In her view, it was unreasonable when the trial court ordered equal distribution of matrimonial property without taking into account the extent of contribution of each party. She laments that the trial court only distributed two properties to wit, a house in Dodoma and a plot in Dodoma leaving aside other properties. Further, the house situated at Dodoma and the corresponding farm were both acquired by the Appellant's sole effort as the Respondent was not working throughout their marriage, from 'age 6 of 22 the money to buy land where the house was built, and the actual construction was all covered by the Appellant, insisting that the only effort by the Respondent was to negotiate the buying of the land on the behalf of the Appellant, while the money was coming from the Appellant. To prove this fact, she tendered bank statements which were admitted as exhibit P12. In her view, the trial magistrate misled herself by her argument on page 5 of the judgment that since the names of the Respondent were on the sale agreement the same implies that he has an equal share in the acquisition of that property. In her further conviction, she argues that it has been decided in several cases that contribution should not necessarily lead to a 50% share each but courts should focus on each party's contribution towards acquisition of the matrimonial properties. To cement her position, she cited the case of Yesse Mrisho vs Sania Abdul, Civil Appeal No. 147 of 2016. Ms. Caroline further argues that the trial magistrate unreasonably left out a house and commercial room located at Oljoro Arusha which were built by both the Appellant and the Respondent, a farm located at Kiteto which was bought by both parties, and the farm measuring 1A acre located at Segara Dodoma. Not only that, but the Appellant's contribution has always been greater compared to the Respondent. On the 4th ground of appeal, it is the view of the learned counsel that the first appellate court failed to order the Respondent to pay a specific amount for the maintenance of the children as he was ordered to provide school fees for the children while in an actual sense, all the responsibilities of providing school fees, food, shelter, and clothing are left with the Appellant. The Respondent has not performed his duties as the father of the children. Arguing the last ground, Ms. Caroline submitted that, it is trite law that the first appellate court has powers to revisit and reevaluate the entire evidence in an objective manner and come up with its own findings of the facts. To support his position, she cited the case of Kaimu Said vs Republic, Criminal Appeal No. 391 of 2019. To the contrary, she argues that the first appellate court did not reassess the evidence of the parties, especially on their contribution towards the acquisition of matrimonial properties which was largely done by the Appellant. Her point is that simply upholding the decision of the trial court without re-evaluation of the evidence is an error that occasioned a miscarriage of justice on the Appellant’s side. She argues that the first appellate court failed to / Page 8 of 22 properly evaluate the evidence of the Appellant whose testimony proves the extent of her contribution towards acquisition of matrimonial property where the court erred in ordering equal distribution of some of the properties and left aside other ones unjustifiably. Opposing the appeal, and in response to the 1st and 2nd grounds, the Respondent submitted that the Appellant is misleading the court regarding the division of matrimonial assets. He pointed out that the distribution of matrimonial assets has not occasioned any failure of justice as the same was done depending on the extent of the contribution of parties taking into consideration that while the Appellant is a teacher, he is a businessman hence both contributed to the welfare of the family. To support his position, he cited the case of Bi. Hawa Mohamed vs Ally Seif, [1983] TLR 32, cementing his point that the contribution of a spouse in the matrimonial properties does not require each party to be employed in order to contribute in the matrimonial properties. He further argues that even though he was not employed, he contributed much to the affairs of the family through the business he was doing, which is why even all the Certificate of Titles bear his name. Page 9 of 22 Responding to the 3rd and 5th grounds, the Respondent argues that it is undisputed that the Respondent was a businessman who owned inter alia tractors as testified by the Appellant before the trial court and the Appellant is a teacher. He added that each party had a certain extent of contribution to the acquirement of matrimonial assets. On another note, he points out that it is a well known fact that before the marriage between the parties which was contracted in 2005, there was a subsisting marriage between the Respondent and another woman contracted in 1998. The Respondent further argues that following the said subsisting marriage, there were properties acquired jointly during the first marriage and those which were acquired during the second marriage between the Respondent and the Appellant. That it was the consideration of the aforesaid fact the trial court and first appellate court distributed the matrimonial property which were acquired during the second marriage which is in dispute and not those properties acquired during the first marriage because the Appellant had not contributed towards their acquisition. The Respondent added that it was proper for the trial court to distribute the properties acquired during the second marriage, considering the extent of contribution by the parties. Page 10 of 22 The Respondent submitted further that the properties acquired during the existence of marriage between the parties are located in Dodoma which comprises the houses with 5 rented rooms and a plot. That, the aforesaid properties were distributed to the Appellant and himself, and that he is not disputing the said distribution; arguing further that the rest of the properties are not matrimonial properties and the same were acquired during the first marriage. On the 4th ground of Appeal, the Respondent submitted that considering the best interest of the children it was proper for the trial court to order maintenance of the children. He contended that despite the fact that he was ordered to provide maintenance to the children, an order that he did not dispute, he left the rent from the house in Dodoma to be received by the Appellant for maintenance of herself and the children. He insisted that the courts below enter the order of maintenance against him subject to his income. To support his argument, he cited section 108 (a) and (c) of the Law of Marriage Act. In his opinion, the trial court and the first appellate court correctly ordered him to provide maintenance without specifying the amount to be paid as such as the same depends on his income. Page 11 of 22 After due consideration of the parties' rival submission, going through the grounds of appeal and records of this file, the task before me is to determine three issues. Whether the extent of contribution was established to warrant equal division of the matrimonial properties located in Dodoma; secondly, whether the properties alleged to be left out by the trial court (the house of five rooms located at Oljoro Arusha, a farm measured six acres located at Kiteto, farm measured 1/4 acres located at Segara Dodoma and the commercial building located at Oljoro Arusha form part of the matrimonial property; and thirdly, whether the first appellate court erred by upholding maintenance order issued by the trial court. Ordinarily, this Court being a second appellate court should not have interfered with concurrent findings of fact of the two courts below unless there is a misapprehension of evidence or violation of some principles of law or procedure. The Court of Appeal in Ramadhan Hamisi vs Republic, Criminal Appeal No. 121 of 2017 held: ",....... this court as a second appellate court, will not interfere with the findings of fact of the courts below unless there is a misapprehension of evidence by misdirection Of non-directions Page 12 of 22 or when it is clearly shown that there has been a miscarriage of justice or violation of some principles of law or procedure". Also, in the case of Yosiala Nicholaus Marwa and two others vs R, Criminal Appeal No. 192 of 2016 (unreported), It was held in guidance that/ "Where there are mis-directions and non-directions on the evidence, a court of a second appeal is entitled to look at the relevant evidence and make its own findings of fact" So while the Appellant is calling upon re-evaluation of the evidence, I am mindful of the limitation in such an endeavor. Meanwhile, as i look at the law, Section 114 (1) of the Law of Marriage Act provides: "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 joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale" Under subsection (2) of the same Act, it is provided: Page 13 of 22 "In exercising the power conferred by subsection (1), 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) Any debts owing by either party which were Contracted for their joint benefit, and (d) The needs of the children, if any, of the marriage and subject to those considerations, shall incline towards equality of division. In the case of Gabriel Nimrod Kurwijila vs Theresia Hassani Malongo, Civil Appeal No. 102 of 2018, when the court faced a similar situation it had this to say: ",.... the extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property. In resolving the issue of extent of contribution, the court will mostly rely on the evidence adduced by the parties to prove the extent of contribution". Page 14 of 22 Now, armed with the above legal position against the evidence of the trial court, it is clear from it that the Appellant managed to prove the extent of contribution toward the acquisition of the rental house located at Dodoma. The Appellant testified that she took various loans for the construction of the said house and she tendered some bank statements to prove the said fact. The Appellant further testified that the Respondent was only supervising the construction of the said house, a fact which was not disputed by the Respondent. As correctly argued by the counsel, at the trial court the Respondent did not adduce any evidence to establish his extent of contribution toward the acquisition of the said house. Under page 17 of the trial court's typed proceedings, the Respondent only testified on how he purchased various plots including the one with the house. The Respondent was silent on the extent of his contribution toward the construction of the said house. Based on this reason I am inclined to find that the trial court misdirected itself by dividing the said house on equal share between parties. Addressing the second issue, the Appellant complained that the trial court left out some of the matrimonial properties which should have the subject of division, the house of five rooms situated at Oljoro, Arusha, a farm measuring six acres located at Segara Dodoma, a farm measuring Page 15 of 22 six acres located at Kiteto, a farm measuring 1A acres located at Segara Dodoma and a Commercial room (frame) located at Oljoro, Arusha. Going through the testimonies adduced before the trial court, there was no evidence to prove the allegation by the Appellant that they owned the farm measuring six acres at Kiteto and a farm measuring 14 acre located at Segara Dodoma. The Appellant's argument that the commercial room (frame) was also left out is an afterthought as on page 5 of the trial court's typed proceeding, the Appellant testified that the area where the frame was located was taken by Africaacademy Ltd and she tendered exhibit P8 to that effect. The argument that the farm measured six acres located at Segara Dodoma was not divided by the trial court is also misconceived as on page 6 of the trial court's judgment the said farm was divided into equal shares among parties. Now, the remaining property is a house of five rooms located at Oljoro Arusha, whose existence was not disputed. The dispute is whether it forms part of matrimonial assets. Before answering this question, I find it pertinent to understand what constitutes a matrimonial asset. Our own Law of Marriage Act has not specifically defined the term "matrimonial assets". As previously observed by the court, that is unlike other common law jurisdictions such as India, where the term Page 16 of 22 "matrimonial assets" is defined in section 4(1) of their Matrimonial Property Act, Chapter 275 of the Revised Statutes, 1989 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 persona! effects of one spouse; (e) business assets; (f) property exempted under a marriage contract or separation agreement; (g) real and persona! property acquired after separation unless the spouses resume cohabitation" page 17 of 22 The definition given is not far from what the Court of Appeal stated in the famous case of Bi Hawa Mohamed vs Ally Sefu [1983] TLR 32 when trying to search for a proper definition of what constitutes matrimonial assets in line with section 114 of the LMA where it was stated: "The first important point of law for consideration in this case is what constitutes matrimonial assets for purposes of section 114. In our considered view, the term "matrimonial assets" means the same thing as what is otherwise described as "family assets": Under paragraph 1064 of Lord Hailshams HALBURY’S LAWS OF ENGLAND, 4th Edition, p. 491, it is stated, "The 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 other or both of the parties, with the intention that there should be continuing provisions for 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 a capital nature, such as the matrimonial home and the furniture in it (2) those which are of a ;e 18 of 22 revenue - producing nature such as the earning power of a husband and wife". From this inspiration, matrimonial assets refer to those property acquired by one or other spouse before or during their marriage, with the intention that there should be continuing provisions for them and their children during their joint lives. It is on record that, some of the money used to build the house at Oljoro Arusha came from the compensation given to the parties after their former plot was taken by Africacademy Ltd. It is an undisputed fact that they were given a total of TZS 18,000,000 which was deposited in the Appellant's account, See exhibit P8. It is also on the record that the said amount was not enough for the accomplishment of the house, with the Appellant testifying that she took a loan from NMB Bank to complete the house. This testimony from the Appellant was corroborated by that of SM3, the Respondent's nephew, where on cross-examination by the Respondent, she stated that the house at Arusha was built by the joint efforts of the parties. So it is my finding that the allegation by the Respondent that the house was built after selling his first wife’s plot and Page 19 of 22 that the said house belonged to his first wife is misconceived as the Respondent has not provided any proof of that fact. Another thing adduced from the testimony that does not make sense is that if it is true that the house belongs to his first wife then why the money that the Respondent received as compensation was placed in the Appellant's account had she had nothing to do with the said money? On top of that, why did the Respondent live with the Appellant who according to him, is a second wife, in the house he alleged belonged to his first wife? I am inclined to hold that the trial court misdirected itself by leaving out of the distribution the House at Oljoro, Arusha which forms part of the matrimonial assets, and unfortunately, the error was left to pass inattentively by the first appellate court. Lastly, concerning the issue of a maintenance order, where the trial court ordered that both parties are responsible for the maintenance of the children and that the Respondent will be responsible for the payment of school fees while the Appellant will be responsible for the basic needs of the children such as food, clothing, shelter, and medical expenses, which was upheld by the first Appellate court. /VPage 20 of 22 It is on record that, the Appellant is a primary school teacher while the Respondent is involved in farming activities. I think to place the whole burden of providing basic needs to the children on the Appellant alone, and issue a general order that the parties will cooperate in maintaining the children is a misdirection and does not ensure the protection of the best interests of the children. The obligation for child maintenance should extend to both parents, depending on their respective means and income. Having said so this appeal is hereby allowed. In its wake, the following is ordered: 1) The Respondent is entitled to a quarter of the value of the house situated at Dodoma. If the Appellant wants to keep the house she can refund the Respondent a quarter of the value of the house after an official valuation. 2) The House located at Oljoro Arusha is divided on equal share to each party. 3) The Respondent is required to pay TZS 150,000 on the 30th of each month as child support, which is equal to TZS 50,000 per child until the children's circumstances change. Page 21 of 22 4) The said amount of money should be deposited in the Appellants bank or mobile account for easy access. It is so ordered. DATED at ARUSHA this 26th day of July 2024 A. Z. Bade Judge 26/07/2024 Judgment is delivered in the presence of the Appellant and the Respondent / their Representative in chambers on the 26th day of July 2024. A. Z. BADE JUDGE 26/07/2024 Page 22 of 22