Jd Kikare 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MWANZA AT MWANZA PC. CIVIL APPEAL NO. 20135 OF 2024 (Arising from Matrimonial Appeal No. 20 of 2023 of the District Court of Nyamagana and Originating from Matrimonial Cause No. 88 of 2023 of Mkuyuni Primary Court) STEPHEN MUHANGA KIKARE ………………….………………………. APPELLANT VERSUS BERNADETHA MAGASO NDARO ……….……………...…………… RESPONDENT JUDGEMENT 29th November 2024 &14th February 2025 CHUMA, J Before Mkuyuni Primary Court in Matrimonial Cause No. 88 of 2023, the respondent successfully petitioned for divorce. After dissolving the party’s marriage, the trial court ordered equal division of the matrimonial properties including a house at Mkuyuni Plot No. 21 Block B, houses at Kamnyonge, Musoma with RO No. 19769 and Plot No. 205 Block P, Plot No. 47, 48 & 56 at Luchelele, Nyamagana, Plot at Mugango, Nyasaungu, Plot at Kwibara, Musoma, Plot No. 556 Block V at Bunda, 5 acre farm, cultivates beehives, banana trees at Kirumi and Nyahingi located at Kyabakari, Musoma, One motorbike, Power tiller, generator and 15 head of cattle. The decision aggrieved the appellant and hence preferred his first appeal to the District Court of Nyamagana in Matrimonial Appeal No. 20 1 of 2023. The appeal was disallowed save that the division of matrimonial properties was enhanced from fifty to sixty percent for the appellant and the respondent’s share was reduced from fifty to forty percent. Still aggrieved, the appellant preferred the present appeal comprising five grounds, namely: 1. That the appellate court erred in law and in facts by finding that, it had no jurisdiction over the issue of names of the respondent since it was new before the appellate court, despite being a pure point of law. 2. That the appellate court erred in law and in facts by appreciating that the ground of cruelty was never established notwithstanding being the sole ground of granting the decree of divorce in the trial court and further continued to uphold a decree for divorce basing on other unestablished reasons. 3. That, the appellate court erred in law and facts by ordering the division of matrimonial properties into 60% to the appellant and 40% to the respondent, regardless of admitting that the appellant contributed more than the respondent. By consent, the appeal was disposed of by way of written submissions. Mr. Bruno Mvungi, learned counsel for the appellant while submitting on the first ground argued that the certificate of marriage (exhibit P16) shows the appellant married to one Bellenace Nyachiro and not the respondent. He contended that since the issue of name in the proceedings is a matter of law, it can be raised even at the appellate 2 stage. Mr. Mvungi supported his argument by citing the case of Julius Josephat Vs. Republic, Criminal Appeal NO. 3 of 2017, CAT. The learned counsel amplified further that a person can not change or adopt a new name without executing a deed poll to that effect. He was therefore of the view that the 1st appellate court was required to reevaluate the evidence and satisfy whether the respondent tendered a deed poll or a registered affidavit/statutory declaration in the court. On this one, the learned counsel cited the cases of Salma Mohamed Ibrahim Vs. Mohamed Ibrahim Adam, Pc. Civil Appeal No. 55 Of 2021, HC-Dar Es Salaam, (TANZLII) and Adamu Wamunza (as Administrator of the Estate of the Late Paul James) Vs. Kinondoni Municipal Council and Another, Civil Appeal No. 424 of 2020 at CAT-Dar es salaam, TanzLII. Regarding the 2nd ground of appeal, Mr. Mvungi submitted that the circumstances in which the marriage was alleged to have been broken down irreparably are adultery, sexual pervasion, cruelty, and desertion but there was no proof of cruelty to justify the analysis of the trial court. He faulted the 1st appellate court that despite the absence of cruelty it proceeded to confirm divorce based on non-consummation of the parties, a fact which was not proved. He further submitted the parties having celebrated Christian marriage which was meant to be for better and for 3 worse, in sickness and in health thus, the absence of consummation at the age of 76 and 65 years for the appellant and respondent respectively can not apply as a good ground for divorce. As for the last ground, the learned counsel contended that while the appellant tendered exhibits D19, D20, D21, D22, and D23 showing his sources of income to justify his contributions of matrimonial assets, the respondent despite alleging that she worked for RTC and in various businesses engagements, did not lay any proof. As opposed to the reasoning of the trial court, the respondent did not prove her contribution of money towards the acquisition of matrimonial properties. Mr. Mvungi was therefore emphatic that the 1st appellate court erred when ordering the division of the matrimonial assets by 60% to the appellant and 40% to the respondent. The proposition was backed up by the decision of the Court of Appeal in Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020), where among others it was held that the extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property. Responding to the appellant’s advocate submissions, Mr. Marwa Samwel for the respondent, in the first ground stated that since the issue 4 of the name was not subject to determination before the trial court and was a point of fact, it could not be raised and canvassed on appeal. Alternatively, he argued that in case this court finds it to be a pure point of law worth to be examined at this stage, the alleged issue has nothing to invalidate the trial court decision. The basis of his argument was the parties celebrated Christian marriage on the 14th day of July 1979 as per the certificate of marriage and affidavit bearing the names of the respondents. The learned counsel added even an affidavit of names can be used for confirmation of a person’s name in the proceeding and no need for deed poll because it is used only when someone is abandoning or altering her name. Furtherance to that, it was argued that the appellant belatedly raised his point because, before the trial court, he referred to the respondent as his wife. Therefore, the appellant could not deny having married her on appeal simply because she adopted and used different names. On the net effect of failure to cross-examine a witness, Mr. Samwel invited this court to consider the decision pronounced in Goodluck Kyando Vs. Republic [2006] TLR 363 and Nyerere Nyague Vs. Republic, Criminal Appeal No. 67/2010 CAT, Tanzil, that failure to cross-examine a witness leaves the evidence to stand unchallenged. 5 Replying on the 2nd ground of appeal, Mr. Samwel argued that the evidence on cruelty was adduced during the trial and the appellant never challenged it. The learned counsel was also of the view that the trial court granted divorce not only based on cruelty but also on reasons presented and agreed upon by both parties. To him, the appellant’s complaint of cruelty is an afterthought. As for the 3rd ground of appeal on the division of matrimonial, Mr. Samweli stated that the 1st appellate court reached its decision after examining the whole evidence and guiding principles of the law. It was satisfied that all properties mentioned by the parties were obtained during the existence of marriage and no one alleged to have owned private property. The learned counsel beseeched the court to consider the fact that since the prayer on division was not objected to before the trial court it was therefore fair to order equal sharing of assets between the erstwhile couple. After analyzing the evidence on record and considering the parties' submissions, now is the right time to deliberate the appellant's grievances. The first issue is whether the appellate court erred in finding that it had no jurisdiction over the issue of the names of the respondents since it was new before it. There is no dispute from both sides that the issue of the variance in the names of the respondents was not the subject of 6 determination before the primary court. So, it was raised for the first time in the first appellate court. If so, is this a legal matter as argued by the appellant hence clothed the 1st appellate court with jurisdiction. The law on what constitutes a question of law was considered in the case of Haji Mradi v. Linda Sadiki Rupia, Civil Appeal 24 of 2016 [2019] TZCA 263 (28 August 2019) while following its earlier decision in Hezron M. Nyachiya v. Tanzania Union of Industrial and Commercial Workers & another Civil Appeal No. 79 of 2001 (unreported). The Court of Appeal stressed that a point of law should be free from the need to ascertain it by evidence. It stated further that there can be no pure point of law where there are facts that require proof by evidence. See also Atlas Copco Tanzania Ltd vs Commissioner General, Tanzania Revenue Authority, Civil Appeal 167 of 2019 [2020] TZCA 317 (17 June 2020). On the strength of the above legal authorities, it is my firm view that ascertaining the name of the respondent is not a pure point of law because it requires an assessment or proof of evidence to satisfy which name belongs to her. Since it was a new fact raised, as submitted by the respondent, the 1st appellate court did not have jurisdiction to determine it. This is consistent with what was held in Frank Lionel Marealle vs Joseph Faustine Mawala (Civil Appeal 104 of 2020) [2021] TZCA 728 (3 December 2021). 7 In any event, the complaint has been raised in the eleventh hour. As correctly submitted by the respondent's counsel, exhibit P16 expresses it all that the respondent has two names which she has been using interchangeably. Furthermore, the appellant did not dispute that they were a valid couple as they celebrated Christian marriage in 1979 and lived together as husband and wife until 2021 when their relationship hit a snag. This is evidenced by his own words before the trial court where he said: “Mdai ni mke wangu toka 1979, tumezaa watoto na walio hai ni 6 na ni watu wazima, ndoa yetu ina matatizo toka 2021, … Mke wangu ana tamaa hasa ya mali zetu. Mimi ndio mmeo,ninapogawa mali zetu hupaswi kujua…’’Ndoa tulifunga kweli kisheria ila ni ya kikristo, … Mali zetu tumetafuta wote,… mali ni zetu” With the foregoing excerpt, if the appellant believed that he did not marry the respondent but another person or the names of the respondent were incorrect, then he should have cross-examined her on the fact. Short of that, the complaint lacks merit. In the second ground, the 1st appellate court is faulted for upholding the grant of divorce despite finding that the sole ground of cruelty was never established. At the outset, the appellant’s complaint on whether or 8 not the first appellate court disallowed the ground of cruelty appears to be misconceived. Both sides in their testimonies agreed that there was no way they could continue to live under the same roof as husband and wife. The appellant’s complaints against the respondent as reflected in the trial court proceedings were as follows: “...Ndoa yetu ina matatizo mengi toka 2021….Mke wangu sio mzuri,ananiletea dawa ili nitumie nife, yeye anakataa kunywa hiyo dawa….hata kwa mkuu wa wilaya tulifika na kushindwa…..Mke wangu sio mvumilivu yeye anataka nyumba tatu na anataka aniu...Tendo la ndoa halipo toka 2019 shida ni yeye… Na mke wangu aliacha kunitunza ndio maana nimehamia kwa Edwini… “Pia mke wangu sio mzuri, aliniletea dawa ili nitumie nife, yeye akakataa kunywa hiyo dawa ... nilipata mashaka shida nyingine nataka mke wangu afuate maelekezo ya ukoo ila hataki” As for the respondent, she was recorded saying the following against the appellant: “Mdaiwa ni muongo anasafiri Kwenda Musoma kila mara na anaalika watu wanikate mapanga, muda mrefu amani haipo naomba tusikilizwe haraka kwani ataniletea ndugu zake waniue niko hatarini... Mume wangu ananitishia Maisha kwa panga kila mara na usiku analiweka karibu na kitanda ili nikisinzia aniue, akinituhumu kuwa nina mahawara, Maisha yangu yapo hatarini, naogopa 9 kuishi nae ni hatari kwangu na ananisingizia uongo... kwa sasa simpendi tena ndoa yetu ivunjwe... Mume wangu hali chakula ninachopika toka Juni, 2023 kuwa nimekuwa mchawi na namuwekea sumu katika chakula”. The above extracts do not require a long-drawn process to understand that the parties’ marriage had irreparably broken down. It is evident that, apart from cruelty, the record is clear that there were other reasons that warranted the lower courts to grant divorce. In the 3rd ground of appeal, the issue is whether the appellate court was justified to order a sixty percent division of matrimonial assets to the appellant and forty percent to the respondent. The principles that guide a court in determining the shares of husband and wife in matrimonial assets are spelled out under section 114 (2) of the Law of Marriage Act. For this appeal, the relevant provision is section 114 (2) (b) which requires the court when making an order the division between the parties of any asset acquired by them during the marriage by their joint efforts, to consider the extent of the contributions made by each party in money, property or work towards the acquiring of the assets. A proper interpretation of the provision was expressed in the case of Bi Hawa Muhamed vs Ally Seif [1985] T.L.R. The Court of Appeal held that the power to order the division of matrimonial or family assets under section 10 114 (1) of the Law of Marriage is only exercisable upon the existence of the following conditions: (i) When the court has granted or is granting a decree of divorce or separation; and (ii) When there are matrimonial or family assets which were acquired by the parties during the marriage; and (iii) When the acquisition of such assets was brought about by the joint efforts of the parties. In Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020), the Court held that 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 the extent of contribution, the court will mostly rely on the evidence adduced by the parties to prove the extent of contribution. With the foregoing legal positions, the question is whether the 1st appellate court properly appreciated the evidence in issuing an order for the division of matrimonial properties. It is common knowledge that the appellant is against the order awarding the respondent forty percent of the assets. The parties are not in dispute that all the assets in dispute were acquired during their married life. However, as submitted by the 11 appellant’s counsel, there is no direct evidence from the respondent indicating how much money she contributed towards the acquisition of the properties because her explanation that she was an employee working at RTC (Shirika la Kusambaza Bidhaa Mbalimbali) or engaged in a business that was making money for her to purchase or contribute to the matrimonial assets, was not supported by tangible evidence. Without prejudice to the foregoing analysis , the circumstances do not absolve her of the right to have a share in the properties concerned. In Regnard Danda vs Felichina Wikesi (Civil Appeal 265 of 2018) [2020] TZCA 1748 (25 August 2020), the Court of Appeal held that a wife is entitled to a division of matrimonial properties even if she had not made any direct contribution to their acquisition for, she has that entitlement so long as she was a wife who made an indirect contribution through domestic chores. The same stance was stressed in Tumaini M. Simoga v. Leonia Tumaini Balenga (Civil Appeal 117 of 2022) [2023] TZCA 249 (12 May 2023), the Court of Appeal held that there is no hard and fast rule that contribution towards acquisition of the matrimonial properties should be in monetary terms. It went on expressing the following: “In essence, the extent of the contribution made by each spouse is not restricted only to material or monetary contribution, that it can extend to either matrimonial obligation or work or intangible 12 considerations such as love, comfort, and consolation of wife to her husband, the peace of mind and the food prepared by the wife for her husband as observed by the High Court”. With that legal position and after considering the fact that the parties began to live together from nothingness until they had joint properties, the allocation of 60 and 40 percent by the 1st appellate court was entirely appropriate. Thus, the complaint that the 1st appellate court reached the decision without properly analyzing the evidence is misconceived. In the final analysis, the appeal lacks merit and consequently, I dismiss it without cost. It is so ordered. DATED at MWANZA this 14th day of February 2025. W.M. CHUMA JUDGE 13 Judgment delivered in court virtually in attendance of Mr. Bruno Mvungi advocate for the appellant and Mr Maira Samweli advocate for the respondent this 14th day of February 2025. HON. J. MUSAROCHE DEPUTY REGISTRAR 14