VERONICA BUKURU tanzlii

IN HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA PC CIVIL APPEAL NO. 23530 OF 2024 (Arising from the decision of Nyamagana District Court in Civil Appeal No. 1185/2024, originating from Mkuyuni Primary Court in Matrimonial Cause No. 70/ 2023) VERONICA BUKURU SESHAHU ...............................................APPELLANT VERSUS JACOB RICHARD BUZIBOLI ................................................RESPONDENT JUDGMENT 11/12/2024 & 14/02/2025 ROBERT, J: This is an appeal against the decision of the District Court of Nyamagana in Civil Appeal No. 1185 of 2024, which reversed the trial court’s order on the division of matrimonial property. The appellant, aggrieved by this decision, preferred this appeal challenging the decision of the first appellate Court. The appellant petitioned for divorce before the Primary Court of Mkuyuni, which, in its judgment dated 5th December 2023, declined to issue a divorce decree due to the absence of a marriage certificate. However, the court held that the parties’ prolonged cohabitation amounted to a presumption of marriage under section 160(1) of the Law of Marriage Act, 1 Cap. 29 R.E. 2022. The trial court proceeded to grant custody of the children to the appellant while awarding visitation rights to the respondent. It also ordered the division of matrimonial properties, allocating 60% to the respondent and 40% to the appellant. The respondent appealed to the District Court of Nyamagana which overturned the trial court’s decision on the division of the matrimonial house. The appellate court held that neither party had provided sufficient evidence of contribution to the acquisition of the property and directed them to resolve the matter amicably without court intervention. Dissatisfied with this decision, the appellant has now brought this second appeal armed with two grounds of appeal: 1. The appellate magistrate erred in law and fact by reversing the trial court’s judgment on the division of matrimonial property without sufficient justification. 2. The appellate magistrate erred in law and fact by disregarding the appellant’s evidence and arguments on record. 2 At the hearing of this appeal, the appellant opted to merge the two grounds of appeal into one: The first appellate magistrate erred both in law and fact for revising the division order without sufficient justification. The appellant, citing section 114(1) and (2)(b) of the Law of Marriage Act, R.E. 2019, argued that the trial court had jurisdiction to divide matrimonial assets acquired jointly during the marriage. The appellant contended that the District Court erred in overturning the trial court’s order, as the existence of matrimonial property was undisputed. The appellant further argued that under section 60 of the Law of Marriage Act, the trial court was correct in making the division order, and its decision should be reinstated. The respondent, citing the High Court decision in Sudi Kasapa v. Paulo Futakamba, Land Appeal No. 15 of 2021, argued that the burden of proof rested on the appellant. The respondent denied the existence of jointly acquired property, asserting that the appellant failed to provide evidence proving joint ownership. The respondent maintained that the District Court’s decision was correct, as no tangible proof of contribution to property acquisition had been presented. 3 The primary issue for determination is whether the appellate court erred in reversing the trial court’s division order. Section 114(1) of the Law of Marriage Act, Cap 29 R.E. 2019, empowers the court to order the division of assets acquired through joint efforts during the marriage. The provision states: "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." From the above provision, the court entertaining a matrimonial dispute has both the power and duty to divide assets jointly acquired during the marriage. In the present case, the trial court identified and recorded matrimonial properties, including two houses, household items, a soda depot, a shop, a timber workshop, and welding machines. The trial magistrate, in assessing contributions, found that the respondent contributed financially while the 4 appellant contributed through domestic duties and business management. Consequently, the court ordered a 60%-40% division. The District Court reversed this decision, stating that there was insufficient evidence of contribution. The District Court's decision to vacate this order, without making a fresh determination on the division, was unjustified and contrary to the purpose of section 114(1) of the Law of Marriage Act. The trial court’s reasoning was well-founded, as illustrated by its finding at page 15 of its judgment: "Katika swali la mwisho na la tatu, kuhusu mali za wadaawa kila upande umewasilisha nyaraka mbalimbali walizochangia katika upatikanaji wa mali zao, nyumba 2, vyombo vya ndani, pia depot ya soda, duka 1, karakana ya mbao pia mashine za uchomeleaji." Further, the trial magistrate fairly evaluated the nature of each party’s contributions: "Hivyo ni dhahiri wadaawa walitafuta mali zao wote kwa pamoja, mdai akipikia mafundi, akimwagilia, akihudumia familia yao, na mdaiwa pia wote kwa kununua vifaa vya ujenzi na hata hivyo kusema mgawanyo uwe sawa si sahihi kwani shughuli za karakana, duka, useremala, 5 biashara ya mbao, soda ni zaidi ya ushonaji, biashara ya mkaa, biashara ndogo ndogo na kuhudumia familia na mafundi hivyo mdaiwa apate 60% ya mali zote na mdai 40% ya mali zao zote kwa kuangalia uzito wa uchangiaji kupitia shughuli za wadaawa ambazo hazikubishaniwa." This assessment demonstrates that the trial court properly exercised its jurisdiction by considering the nature and extent of each party’s contributions before making a division order. Accordingly, the decision of the District Court reversing the trial court’s division of matrimonial property is hereby quashed, and the trial court’s judgment is reinstated. The division of matrimonial assets shall remain as originally determined—60% to the respondent and 40% to the appellant. No order as to costs. It is so ordered. K.N. ROBERT JUDGE 14.2.2025 6