20160829 TZHC Mwanza

0,, IN THE HIGH COURT OF TANZANIA AT MWANZA PC. MATRIMONIAL APPEAL NO.07 OF 2014 {Arising from Matrimonial Appeal No.4 of 2013 in the Nyamagana District Court, Original Matrimonial Case No. 3 of 2013 of Urban Primary Court) TUN GU CLEMENT .. ■ ll ■ ..... ■■■ D ■■ • ~-- •••••• ■■ I ■ •• ■ I ■ ••••••• ■■■ II ■ • • • • • • I •••• APPELLANT VERSUS MARY MADI RISHA ■■■■■■■■■■■■■ •■■■■■■■■■■■■■■■■■■■■■■■■■■■■ a ■■■■■■■■■ RESPQN DENT Last Order: 12/07/2016 Judgment: 29/08/2016 JUDGMENT MAKARAMBA, J.: This Judgment is on appeal from the decision of the District Court of Nyamagana dated the 4th February, 2014 before the Hon. Ruboroga Esq SRM. Briefly, in 2013, MARY MADIRISHA, the Respondent herein, lodged a suit against TUNGU CLEMENT, the Appellant herein, before the Mwanza Urban Primary Court in _Matrimonial Cause No. 3 of 2013 for divorce and matrimo_nial division. The suit decided in favour of the Respondent and a decree of divorce was issued and matrimonial properties were equally distributed between the parties. According to that decision, the Respondent MARY MADIRISHA was entitled to two plot situated at Ihushi and Bukaga, two heads of cows and items and proceeds. of a business kiosk ("Kibanda cha Biashara''). TUNGU CLEMENT, the Appellant, was ~ Page 1 of 6 dissatisfied with that decision and appealed it to the District Court of Nyamagana in Matrimonial Appeal No. 4 of 2013, which appeal was dismissed. The Appellant was dissatisfied and has come before this Court on second appeal to contest the decision of the District Court of Nyamagana on the following grounds of appeal, namely; 1. That the learned trial Magistrate erred both in law and in fact for holding that the eight cows be divided equally while in fact the said cows were not obtained through Joint efforts of the parties. 2. That the trial Magistrate erred both in law and in fact for holding that the house be divided among the spouses while in fact the house was acquired by the Appellant after the Respondent has already separated with the Appellant. 3. That the trial Magistrate erred both in law and in fact for not considering the fact that the parties had already shared equally the shop items before the street chairman. 4. That the learned trial Magistrate misdirected himself in holding that matrimonial house be shared equally among the spouses in contravention of the provisions of section 114(2)(g) of the law of the Marriage Act Cap.29 R.E 2002. 5. That the trial Magistrate erred both in law and fact for not considering the fact that there was no marriage certificate as the requirement of the law. Page 2 of 6 The Appellant prays that the appeal be allowed and the decisions of both lower Courts be set aside. In this appeal both parties appeared in person. In the course of making his submissions in support of the appeal, the Appellant elected to drop the fifth ground of appeal and proceeded to submit on the remaining grounds of appeal. The Appellant stated further that, the trial Court did not consider the evidence of the Appellant, that the Appellant was a businessman at Chabilishi in Maswa District in Shinyanga Region where the Appellant was dealing with rice milling. According to the Appellant, the Respondent and the Appellant for the first time met at Chabilishi in Maswa · District, Shinyanga Region where the Appellant was dealing with the business of rice milling. The Appellant argued further that it was through such business that the Appellant managed to raise his capital. The Appellant stated further that, in 1999 the Appellant bought four (4) heads of cattle in Magu District, a fact which if the trial Court had properly considered it, it would not have reached such a decision. The Appellant stated further that~ without any justification the trial Court relied on a mere assertion by the Respondent that, the Appellant bought the said cattle from the money stoien from the shop, hence. proceeded to order for equal division of the same. The Appellant stated further that, the trial Court was biased to formulate the 3rd issue, that is "What are the relief(s) the {Petitioner) is entitled to''for the interest of the Plaintiff. Page 3 of6 The Appellant stated further that, the trial Magistrate misdirected himself in holding that, the matrimonial house be shared equally among the spouses in contravention of the provisions of section 114(2)(d) of the Law of Marriage Act, which states that; "(2) In exercising the power conferred by subsection (lJ the court shall have regard:- ( d) to the needs of the infant children, if any, of the marriage. v The Appellant stated further that, the parties were not blessed with any issues, however the Appellant has his own issues with the first wife . . who had to be considered during the making of the order complained of. The Appellant prayed that, the appeal be allowed and the judgment of both the trial and appellate court be quashed and set aside. In reply the Respondent stated that, it was the duty of the Appellant · to state which evidence was not properly examined by the lower courts. The Appellant has not specified the evidence. The Respondent stated further that, the _Appellant was at liberty to raise any issue that he was thinking that it was necessary and important to be tried by the lower Court. The Respondent submitted further that, it is not true that the Appellant had business at Chibilishi in Maswa District. According to the Respondent, the Appellant was supposed to prove this before the lower Court. The Appellant submitted further that, the parties in their marriage were not blessed with any child. The purported child belongs to the Page 4 of 6 ~ '---...! "' Appellant and therefore it was the duty of the Appellant to take care of his child. On the arguments by both parties in this appeal, the two plots situated at Kihushi and Bukaga were acquired by the parties during the subsistence of their marriage. Furthermore, the Appellant acquired the four heads of cattle also during the subsistence of their marriage. On the submissions, clearly their marriage life style depicts a high level of spouses assisting each other in jointly acquiring matrimonial properties. The Court record shows clearly that, whatever property the parties had acquired during the subsistence of their marriage, it had been jointly acquired. It is worth to note what the Appellant stated at page 12 of the trial Court. proceedings thus; "Mimi niliishi nyumbani kwa Mdai nikiwa nimeo/ewa kabla ya kwenda kupanga." Before the trial Court the "Mdai" was the Respondent herein, MARY MADIRISHA. The above quoted statement shows· that, the Appellant, TUNGU CLEMENT, in every respect enjoyed the full maintenance of the Respondent, MARY MADIRISHA. This being the case therefore it cannot be gainsay to stated that the rice milling business of the Appellant business as well as his accommodation depended very much on the Respondent. Before the trial Court, the Respondent explained at great length how she assisted her husband (the Appellant) in obtaining the .capital for their business. Going by such spirit, the Appellant could have also acted in the Page 5 of 6 ~ ., Il . I ' ,,, same manner in that whatever was acquired by the Appellant could have been shared with his wife, the Respondent. There is no iota of evidence in the record of the trial Court which supports the evidence of the Appellant j :1 that, the Appellant was given four (4) heads of cows by his father. There j .nothing in the manner the lower trial Court handled the case the subject of this appeal which would warrant this Court to interfere with the decisions of the lower Courts, namely; in Matrimonial Appeal No.4 of 2013 in the Nyamagana District Court, and original Matrimonial Case No. 3 of 2013 of the Urban Primary Court. They are hereby confirmed. In the whole and for the above reasons, this appeal fails. It is hereby dismissed with costs. The decision of the Nyamagana District Court in Matrimonial Appeal No.4 of 2013 is hereby upheld. It is so ordered. Page 6 of 6