vumilia mwakilasa vs vitus rupeche 2022 tzhc 15278 15 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT TABORA PC CIVIL APPEAL NO. 4 OF 2021 (From Urambo D/C in Matrimonial Appeal No. 4/2020 and Original Matrimonial Cause No. 7/2020 of Urambo Urban Primary Court) VUMILIA MWAKILASA----------------- ——------------- —APPELLANT VERSUS VITUS RUPECHE-------------------------------------------------- RESPONDENT Date :11/10/2022 & 15/12/2022 BAHATI SALEMA, J.: The appellant Vumilia d/o Mwakilasa and the respondent Vitus s/o Rupeche lived together as husband and wife after contracting a civil marriage in the year 2018, they lived happily up to January 2020 when signs of matrimonial friction started. Their misunderstanding forced the respondent to file a petition for divorce at Urambo Urban Primary Court. At the Primary Court, the respondent was seeking dissolution of marriage and custody of children. The respondent alleged that the marriage with the appellant which started in November 2018 blessed with three issues had gone sour and was no longer reparable. After a full hearing, the Primary Court granted a decree of divorce, custody of children in favour of the appellant, equal division i of matrimonial assets, and an order for maintenance of children against the respondent at the tune of TZS 70,000/= per month. With regard to the division of matrimonial assets, the trial court divided them in the following manner: two plots situated at Oysterbay area, Urambo District were divided equally to the parties, each party was given one motorcycle, home utensils were divided equally, 40 pigs which were on the matrimonial pig farm were also divided equally; As to the matrimonial house located in Oysterbay area where the couple lived, the court ordered its sale and the proceeds be divided equally. Dissatisfied with the decision of the Primary Court, the respondent appealed to the District Court of Urambo specifically challenging the trial courts decision regarding the division of a house located in Oysterbay area, Urambo District. After the hearing of the appeal, the District Court quashed the order of selling the Matrimonial house and ordered the respondent to pay to the appellant the sum of TZS 3,000,000/= (three million) as compensation for her contribution towards the acquisition of the said house. Aggrieved by the decision of the District Court, the appellant preferred this appeal couched with three grounds of appeal namely: 2 1. That the appellate court erred in law and facts In its decision by making unfair distribution of matrimonial property without considering the contribution of each spouse. 2. That, the appellate court erred in fact and law by ordering compensation by the respondent without making consideration to the value of the said matrimonial house and the contribution of each party. 3. That, the appellate court erred in law and facts by making the order(sic) the respondent compensation of 3,000,000/= to the appellant on baseless analysis. When the appeal was Galled up for hearing, the appellant and the respondent appeared in person unrepresented. Submitting in support of the appeal the appellant stated that in 20/08/2015 she acquired a loan and started building from the scratch, also, in 2016 she acquired another loan of more than 20 million for finishing the house. She faulted the District Court for failure to analyze the evidence and ended up giving her three million. On his part, the respondent supported the decision of the District Court that gave the appellant TZS 3,000,000 and stated further that he has children and he is wondering how the copy of the exercise book was admitted in court as an exhibit. In a rejoinder, the appellant stated that the book shows their handwriting, she also prayed the Court to decide fairly. 3 Having gone through the rival arguments both in support and against the appeal, the only determinative issue is whether there is on record the evidence of how the parties to this appeal contributed towards the acquisition of a house situated in Oysterbay area, Urambo District, In the first appeal, the learned District Magistrate was in agreement with the decision of the trial Court that both parties contributed something to the building of a Matrimonial house in Oysterbay area but he did not go further to re-evaluate the evidence adduced in the trial court to see the extent of contribution by the parties so that it could help him in determining whether both parties contributed to its acquisition and if yes, the extent of contribution. In the case of Hassan Mzee Mfaume vs Republic [1981]TLR 167 it was held that; "Where the first appellate court fails to re-evaluate the evidence and to consider the material issues involved, on a subsequent appeal the court may re-evaluate the evidence in order to avoid delays or may remit the case back to the first appellate court" In the instant case, I find it just to re-assess the evidence adduced in the trial court in respect of a Matrimonial house that the parties are contesting. The 1st appellant Magistrate quashed the order of the trial Court that aimed at 50/50 division of matrimonial house and substituted it to an order of payment of TZS 4 3,000,0000(three million) in form of compensation but the learned magistrate did not elaborate on how he came to that figure. It was the appellant's testimony that the house in contest was built by their joint efforts whereby the respondent was the first to acquire a loan which they used to build the house and the appellant acquired a loan for finishing the house. On his part, the respondent did not put the house on the list of matrimonial properties he claimed that the same was acquired before marrying the appellant. For a better analysis of the issue, I find it opportune to reproduce a part of the proceedings where the respondent was given a chance to cross-examine the appellant: - "Ulivyofika Urambo cha kwanza ulifanya nini? SU1: Nilikushauri nichukue mkopo tujenge, ulianza wewe kuchukua mkopo ndo tukaanza ujenzi. Mkopo wangu ndo ulimaliza mkopo(sic) Mkopo ulichukuwa shilingi ngapi SU1: Nilichukua milipni 9 wewe ulikuwa mdhamini" Also, in the trial court, the appellant exhibited the fact that she acquired the loan by submitting salary slips, loan agreement, and loan repayment schedule which were not contested by the respondent The respondent claims that the matrimonial house was acquired before he married the appellant but he failed to refute the evidence adduced by the appellant that the house was built by joint efforts through loans. 5 For the foregoing reasons, the appeal is allowed. The first appellate Court decision in respect of the Matrimonial house located in Oysterbay area, Urambo District is substituted to an order that the appellant gets 50% of the value of that house. The other orders of the trial Court remain intact. Order accordingly. A. BAHATI SALEMA JUDGE 15/12/2022 6 Date: 15/12/2022 Coram: Hon. G. P. Ngaeje, Ag DR Appellant: Absent Respondent: Present B/C: Grace Mkemwa, RMA Court: The matter comes for judgment. Respondent: I am ready for the judgment. Court: Judgment delivered in presence of the respondent, in absence of the appellant and in the open court. G. P. NGiAEJE AG. DEPUTY REGISTRAR 15/12/2022 Court: Right of appeal fully explained. G. P. NGAEJE AG. DEPUTY REGISTRAR 15/12/2022 7