Stephan J

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA CIVIL APPEAL NO. 9615 OF 2024 REFERENCE No. 202405021000009615 (Originating from Mpanda District Court in Matrimonial Appeal No. 19 of2023 which originated from Mpanda Urban Primary Court in Matrimonial Case No. 18 of2023) STEPHAN J. MWAKATOTO........................................................ APPELLANT VERSU ANTONIA JOEL RESPONDENT JUDGMENT The appellant herein had successfully filed an application for divorce at the Mpanda Urban Primary Court (trial court) where he was satisfied with all the orders that followed except for the distribution of properties between him and the respondent in which the trial court ordered that the respondent will get 45% of the Matrimonial properties. Being dissatisfied with that, he filed an appeal to the District Court of Mpanda (First Appellate Court) in which his Petition of Appeal consisted of five grounds. I find it best to reproduce them for ease of reference. The grounds were; 1 1. That,thetrial court erred inlawand fact by rejecting the appelanttherighttocalhiswitnesssuchasbaloziwamtaa toprovetheassertionthattherespondentdesertedthefamily. 2. That, the trial court in law and facts by putting less consideration on the evidence that the appellant built the house by his own effort from the loan and the contribution of the respondent was minimal to attract 45% in division as her contribution. 3. That, the trial court erred in law and facts by giving the shop to the respondent as if it was property contrary to the law. 4. That, the trial court erred in law and fact by failing to show who is responsible for the loan which the appellant took to build the house which is divided. 5. That, the trial court erred in fact by believing that once the respondent was employed. From the grounds rephrased above, the appellant prayed to the first appellate court for the orders to quash and set aside the decision of the trial court, and an order for a retrial before another Magistrate, the costs of that appeal to be borne by the respondent and any other relief that the court deemed fit to grant. 2 However, the first appellate court decided that the appeal has no merit since the fact that the respondent was supporting the family as the mother, she was rightly awarded the 45% by the trial court, and it supported its decision by citing the famous case of Bi Hawa Mohamed vs. Ally Sefu, Civil Appeal No. 09 of 1983 TLR. The first appellate court then upheld the decision of the trial court and dismissed the appeal. Again, the appellant is not satisfied and hence this second appeal to this court in which his Memorandum of appeal consists of two (2) grounds of appeal which are as hereunder; 1. That, the first appellate court having recognized the existence of the loan outstanding sum with CRDB Bank, it erred at law and fact to order the payment and settlement of the same (loan) by the appellant only. 2. That, the first appellate court erred at law to apportion 45% of the Matrimonial properties to the respondent who failed to provehercontributiontowardsacquisitionofthesame. From the above grounds, the appellant prayed for the court to give judgment on his favour and in so doing, quash and set aside the 3 decision of the trial court and order a retrial. Costs of this appeal to be borne by the respondent. On the date scheduled for hearing, both parties appeared for themselves as they had no legal representations, but both parties were ready to proceed verbally. The appellant was invited to submit first and he did so by stating that, the Primary Court at Mpanda recognized that he had a loan at CRDB Worthy Tshs. 15,000,000/= and that, the 1st appellate court erred to decide and order repayment of the loan by him alone. He then prayed to refer at page 34 of the judgment of the Primary Court (trial court). The appellant the added that, the District Court erred by not considering the just pointed fact, and he prayed for this court to vary the decision of the District Court of Mpanda. He also prayed this court to order that the house be sold and the proceed thereby be appropriated to the payment of the loan and the remaining amount be divided according to the order of the trial court in terms of percentage. He added that, on another point the District Court erred to distribute property by 55% to 45% since the respondent failed to prove her contribution in acquisition of the property. That, when getting married to 4 the respondent, she found him with household utensils, and that as they were living together, they were able to acquire other properties. He then insisted that his colleague was a housewife, and he believes her contribution is very minimal to deserve 45% of the properties. In response, the respondent submitted on the first point about the loan that, the lower court which had chance to hear and determine this case was right in its decision. That, the reason is simple, and that she was a lawful wife to the appellant. The respondent submitted further that, they started living together at their young age, and she was employed as she was working in a pharmacy and earned salary, and she stayed with the appellant while working at that shop. She proceeded that it was a joint discussion that she should rest after the delivery of their first born. That, they planned to possess their own shop. That, the endeavor was out of joint effort, as she was taking care of the family as her husband (the appellant) had many responsibilities, in which he was paying school fees for his young sibling, taking care of his sister and three nephews and he was also taking care of his mother. The respondent added that, the appellant was also paying rent to the house his family was living, and she as a wife understood that her husband had a lot of responsibilities and was 5 helping out as much as she could. In that, she insisted she was not a mere house wife as he would like to make it be understood. The respondent added further that, the loan was not taken at their agreement. That, the appellant was convinced by his family. She clarified that, the appellant had at one time work problem and they were living at the office quarters and he had not built a house at his home. But they built a house and it was out of contribution from both of them. She insisted that, the house was not constructed by the loan. That, the loan however was able to supplement the cost of building and there was money they borrowed from the respondent’s mother. Lastly, the respondent submitted that, under the circumstances, all courts below were right in their decisions. That, it is not true that the lower courts favoured her. She was however satisfied with the decisions of both lower courts despite of the fact that she was only afforded 45% of the property, to her it was just. In rejoinder, the appellant submitted that, it is not true that his family pushed him to take the loan. And that the respondent brought her mother to testify that they borrowed Tshs. 3,000,000/=, but he wonders today she is saying they borrowed Tshs. One million from her mother. 6 He insisted that, it is not true that she was working. That, she started working after they opened their shop (pharmacy) and that is when problems ensued. He then prayed for this court to look at the evidence. After reading the submissions made by both sides and keenly perusing through the entire records from the courts below, considering the fact that this being the second appeal as stated earlier, in which, the second appellate court is discouraged to disturb the concurrent findings of facts of the lower courts unless there has been misapprehension of evidence, miscarriage of justice or violation of some principles of law or practice. The said principle has been enunciated in the cases of Issa Mgara@ Shuka vs Republic, Criminal Appeal No.37 of 2005 (Unreported); and Dickson Joseph Luyana & Another vs Republic, Criminal Appeal No.01 of 2005 (Unreported), to mention but a few. I am therefore of the firm holding that the only determinant issue to be delt here is whetherthis appeal is meritious. Starting off with the first ground of appeal, it is in the records that the loan obtained by the appellant was only about ten (10) million Tanzania Shillings, in which it was used to start off the construction of the house they own. Nevertheless, upon perusing the records before me, I never 7 found anywhere that the appellant has described how the loan obtained was used in the construction, but I have however found in the respondent’s submission at the trial court that Tshs. 6,000,000/= of the loan was used to start off the construction of the house whereas Tshs. 4,000,000/= was sent to the appellant’s parents in Mbeya. See page 13 of the trial court’s typed judgment. When this fact was stated by the respondent, the appellant never cross examined her on that, in which this court too as it was at the trial court and at the first appellate court believe that what was submitted by the respondent was true. It is the trite that failure to cross examine a witness on important matter implies acceptance of the truth of witness evidence. See Medson Manga vs Republic, Criminal Appeal No. 259 of 2019, though a criminal case but the principle applies also in civil cases. In addition to that, the appellant complains that he was ordered to repay the said loan alone. This is not true at all. Having recognise that the loan obtained was for the construction of a house, the trial court ordered that 55% worth of the house to be of the appellant and 45% to be on the respondent. In other words, the house should be sold and the proceeds to be divided in 55% to 45% and that is how the loan will be 8 sorted off, considering that the Bank that loaned the appellant only recognizes the him as seen on the Salary slip (kielelezo KN2) and the Bank Statement (kielelezo KN3). I therefore hold this ground to be meritless and proceed to dismiss it. Coming to the second ground of appeal, it should be understood that the division of 55% to 45% was done by the trial court and not the 1st Appellate court as stated by the appellant. However, in civil proceedings standard of proof is on the balance of probabilities, as it was insisted in the case of Manager, NBC Tarime vs Enock M. Chacha (1993) TLR 228, whereas the person whose evidence is heavier must win. See Hemed Said vs Mohamed Mbuli [1983] TLR 113. Considering the records of appeal before me, I find no merit in this ground too and proceed to dismiss it. Consequently, I find no merits in this appeal and proceed to dismiss it in its entirety and in so doing I find no reason to interfere the decisions of the lower courts. Due to the nature of the dispute, I issue no order as to costs. It is so ordered. Dated and singed at Mpanda this 17th day of October, 2024. T. M. MWENEMPAZI 9 JUDGE Judgment delivered at Mpanda this 17th day of October, 2024 in the presence of both parties in person. T. M. MWENEMPAZI JUDGE 17/10/202 10