tumaini afwilile mwayole vs omary saidi mohamed 2023 tzhc 17941 13 june 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY) AT SONGEA PC. CIVIL APPEAL NO. 3 OF 2023 (Arising from PC. Matrimonial Appeal No. 02 of2022, Tunduru District Court) TUMAINI AFWHILE MWAYOLE ...................... APPELLANT VERSUS OMARY SAIDI MOHAMED! ...... RESPONDENT JUDGEMENT 27/04/2023 & 13/06/2023 E. B. LU VAN DA, J. In the amended petition of appeal, the Appellant above named raised two grounds of appeal, namely: One, the first appellate court erred in law and facts in the division of matrimonial properties; Two, the first appellate court erred in law and facts for failure to grant the maintenance of the issue of the marriage. In his written submissions, Mr. Makame A. Sengo learned Counsel for Appellant, abandoned ground number two and argued in respect of the first ground alone. The learned Counsel for Appellant submitted that the first appellate court wrongly considered the house located at Tuleane as part of matrimonial assets, as the Respondent has claimed during the i trial and without even considering the evidence of the Appellant and her witness who proved that the same is a property of the Appellants mother (PW6) and that the same was built by her money and construction was done by PW5 under supervision of PW4. He submitted that the Respondent failed to summon witness to prove that he contributed Construction up to a lintel stage. He submitted that the Respondent did not dispute a fact by the Appellant to the effects that a house located at Tuleane was purchased by money that was coming from her mother, and it was registered in the name of Clara Patrick Mwayole. He cited a case of Mr, Mathias Erasto Manga vs Ms. Simon Group (T) Limited, Civil Appeal No, 43/2013 CAT. at Arusha, regarding standard of proof in civil cases; Mariam Tumbo vs. Harold Tumbo [1983] page 293 regarding interpretation of section 114(2) (b) of the Law of Marriage Act, Cap 29 R.E. 2019. He submitted that the first appellate court wrongly included a house at Tuleane and mistakenly considered it as matrimonial house subject for division 50% for each party. Mr. Kaizilege Prosper learned Counsel for the Respondent filed submission in opposition of appeal. He submitted that the first appellate court was right to consider and include a house at Tuleane as 2 matrimonial assets subject to distribution between the parties. He submitted that, the Respondent summoned DW6 the vendor of a plot at Tuleane who sold to the parties for consideration of Tsh. 750,000, Also summoned DW4 who constructed the said house located at Tuleane, up to the stage of lintel. He submitted that the evidence of DW6 and DW4 was not challenged by the Appellant. He submitted that the Appellants witnesses, contradicted themselves in their testimony, where PW4 said she purchased the said house for Tsh 850,000, which contradict with PW1 and PW6 who said it was purchased for Tsh 750,000/=. He cited section 114(l)(2)(b) Cap. 29(supra), a case of Bible Mauridi vs Mohamed Ibrahim [1989] TLR page 162, Essentially, the Appellant is challenging the concurrent findings on a point of facts by two courts below, which ruled the impugned house as among matrimonial assets jointly acquired by the parties. According to the available evidence in record, in particular an agreement for sale of shamba measuring quarter acre situated at Tuleane Tunduru, exhibit M3, vindicate that the purchaser was Tumaini Mwayole (Appellant herein), the vendor was Rashid M. Kapepula (who appeared as DW6) and Omary Said Mohamed feature as a witness under a capacity of husband for the purchaser. The alleged Semeni Yusuph 3 Matenganya (PW4) who at the trial court posed as a vendor of a plot at Tuleane and purported to have constructed a house for one Clara Patrick Mwayole alleged born out of wedlock and being victim of stigma from the Appellant and Respondent, nevertheless her (PW4) name is missing in exhibit M3. The contents of exhibits M3 neither reflect PW4 as owner of a title nor suggest PW4 as a sponsor who funded purchasing costs. Importantly, in her testimony PW4 said she purchased it for Tsh. 750,000 while a price in exhibit M3 reflect Tsh. 850,000. As such the two courts below were justified to dishonour her story and claim for ownership. The vendor (DW6) of impugned plot disowned PW4 rather stick to his gun that at the execution of transaction of sale, the Appellant counted a sum of Tsh 850,000, then handed over to her husband the Respondent, where the later eventually handed over the same to the vendor (DW6). In view of overwhelming evidence, a plea by the Appellant that a plot and house at Tuleane was wrongly included in the matrimonial assets, cannot be entertained at all. I therefore uphold the concurrent finding of the two courts below that a house situated at Tuleane Tunduru is a matrimonial assets liable for division. 4 I affirm a verdict by the first appellate court distributing exclusively a house at Tuleane to the Appellant and a house at NHC exclusively to the Respondent. The Appeal is dismissed. A make no order for costs, because parties are wrangling over family matter. 5