wilson ishengoma vs frolence ishengoma 2020 tzhc 4240 15 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA MATRIMONIAL APPEAL NO. 01 OF 2020 {Arising from the District Court of Bukoba in Matrimonial Cause No. 8/2018) WILSON ISHENGOMA............................................................ APPELLANT VERSUS FROLENCE ISHENGOMA.................................................... RESPONDENT JUDGMENT 02fd December, & 18h December 2020 KHekamajenga/ J. The appellant and respondent celebrated their Christian marriage in Nairobi on 15th April 2006. Before they officially got married, they stayed together since 2004. Immediately after their marriage, they moved from Nairobi to Tabora where they established different businesses including setting-up a pharmacy and cosmetic shop. In 2012, they relocated to Bukoba hence they sold everything they had and established a pharmacy. Furthermore, they jointly acquired several properties while in Bukoba. They continued to enjoy their happy life for years before the schemes on the enemy interrupted their marriage. Their marriage turned sour prompting the appellant to petition for a decree of divorce before the District Court of Bukoba. During the trial, the respondent insisted that her marriage had not broken down and pressed for its existence. Based on the respondent's prayer, the trial magistrate was convinced that the marriage never reached the beyond repair point; the appellant's petition was finally dismissed. Aggrieved with the decision of trial court, the appellant appeared before this Court seeking for further consideration on whether or not the marriage had broken down. He believed that the marriage had broken down and there was no possibility for repair. He advanced five grounds to convince this Court that the marriage has turned into the devil's den. He believed that the only remedy was to secure a decree to come out of this miserable union. The grounds are coached thus: 1. That, the trial District Court of Bukoba erred in law and fact in holding that there is no tangible evidence showing that the marriage between the parties has broken down irreparably despite the evidences tendered before the said court which proved the said broken down on the standard required by the law; 2 2. That, the Honourable District Court erred in fact and law, misdirected itself and failed to evaluate the evidence tendered before it in holding that parties had agreed to live apart; 3. That, the trial court magistrate erred in fact and law in making a decision which is not supported by the evidence produced by the parties before the court i.e. that the dispute is due to the daughter who is living with the petitioner; 4. That, the trial court erred in law and fact in basing its decision on the ora! testimony made by the respondent that it was the appellant who rented the house for the respondent without a lease agreement to support the allegations made by the respondent; 5. That, the trial court erred in fact in failing to note that the money for maintenance was paid to the respondent through a bank account and M-Pesa, and at a certain interval, a fact which proves that the petitioner and respondent are living apart. When the appeal was called for hearing, the appellant appeared in person while enjoying the legal services of the learned advocate, Mr. Joseph Bitakwate. On the other hand, the respondent appeared in person under the representation of the learned advocate, Mr. Dastan Mujaki. In defending the appeal, Mr. Bitakwate informed the Court that the respondent also sees the fate of the marriage in the eyes of the appellant; that the marriage has broken down irretrievably. His belief was fortified by the respondent's reply to the petition of appeal. Therefore, Mr. Bitakwate prayed not to argue the grounds of appeal rather than clarifying the appellant's reliefs. He further averred that evidence of breakdown of the marriage appear at page 17-19 of the typed proceedings of the trial court. The appellant proved that there was long desertion between the appellant and respondent that existed since 2007. The respondent was occasionally deserting the appellant without justifiable cause. In 2016, the respondent left the matrimonial home and the two are currently separated. He argued further that the marriage reconciliation certificate also proves the breakdown of the marriage. Mr. Bitakwate was content that the marriage broke down and urged the Court to grant the decree of divorce. Mr. Bitakwate further stated that when the decree is granted, the Court is supposed to order division of matrimonial assets. However, when dividing the assets, the Court should consider the following facts: (a) Before the appellant married the respondent, he had another wife, who unfortunately, died on 23rd Magzh 2003 in Nairobi -Kenya. The erstwhile wife left behind three children namely, Eva 4 it Kokuhumbya who was born on 16th November 1983; Elsi Kokukyangula who was born on 05th November 1985 and Stella Mukagilage who was born on 20th April 1990. (b) The appellant and the former wife acquired household items, a car and medical store. Mr. Bitakwate submitted further that, after the death of the former wife, the appellant relocated to Tabora and finally married to the respondent in 2006. In Tabora, the appellant established a pharmacy and the respondent owned a cosmetic shop. These were the major businesses they established in Tabora after the marriage. In 2012, the appellant and respondent shifted to Bukoba where the appellant set-up a pharmacy but the respondent failed to start her business. In Bukoba, they managed to acquire a house at Nshambya at plot No. SH/BUN/343; a plot of land at Nshambya, which has not been developed, and a plot of land near Nshambya Secondary School. These were the only properties jointly acquired by the parties. Mr. Bitakwate also informed the Court about the properties acquired in the name of the appellant namely, a Toyota PRADO with registration number 5 T.864 CZX, Mercedes Benz with registration number T.958 AMY, smart TV, 43 inches, Fridge and two gas cookers. The appellant also owns shares in a company called Shekainah Enterprises which was officially registered in 2017. The company owns Shekainah Pharmacy. There were other properties acquired in the name of the respondent namely, Toyota Mark II with registration number T.745 DEZ, a music system together with its speakers, smart TV (43 inches), a fridge, and TV stand. Mr. Bitakwate further submitted that the Court should consider the share of the former wife when dividing matrimonial properties. He further urged the properties acquired in the names of the parties to remain in the hands of those parties. On the other hand, the counsel for the respondent conceded to the fact that the marriage has broken down because the respondent also has reached a point where she can no longer stay in the marriage. He, however, objected the prayer by the counsel for the appellant to consider the share of the former wife in the matrimonial assets. The division of matrimonial assets should be done according to section 114 of the Law of Marriage Act, Cap. 29 RE 2019. Mr. Mujaki listed the properties which were jointly acquired by the appellant and respondent namely, the 6 matrimonial home located at Nshambya, one plot of land located near the matrimonial home, the plot of land located near Nshambya Secondary School, a pine tree farm located at Bukabuye-Misenyi District, a house located at Mukatunga in Bukabuye village, a Mercedes Benz with registration number T.958 AMY, Toyota Prado with registration number T864 CZX, Toyota Mark II with registration number T745 DEZ, Shekainah Pharmacy located at Bukoba, Shekainah Pharmacy located at Mugana, a Land cruiser V8 with registration number T454 DSU, Smart TV (43 inches), fridge, two gas cookers, music system together with its speakers, another smart TV (43 inches), TV stand and other house hold items. Mr. Mujaki further stated that the properties acquired in the names of the parties cannot be excluded from matrimonial properties. He fortified his argument with the case of Chakupewa v. Mpenzi and others [1999]! EA 32. Even the enterprise is also part of the matrimonial property because it was established during the subsistence of the marriage. Converting the business into an enterprise does not exclude the respondent from its ownership hence it is a matrimonial property. The counsel vehemently argued that the respondent deserves an equal share with the appellant in the division of the matrimonial properties. To bolster 7 his argument, he referred the Court to the case of Ndetuli v. Ndetuli [1995-1998]! EA 235. When rejoining, Mr. Bitakwate insisted that the share of the former wife must be considered in the division of the matrimonial assets. Some of the properties named by the respondent are not matrimonial properties such as the tree farm and the house at Katunga, Shekainah Pharmacy Branch at Mugana and the Toyota Land Cruiser. He further argued that Shekainah Enterprise is a company and not a matrimonial property and the properties acquired in the names of the parties should remain in the respective persons. Before this Court scheduled the case for judgment, the parties through o their counsels, brought an agreement on the division of matrimonial assets in case the Court finds that the marriage has broken down irreparably. After considering the submissions from the parties and other information garnered from the court file, the issue calling for determination is whether the marriage between the appellant and respondent has broken down beyond repair. The law demands a person to petition for the decree of 8 divorce under only one ground; that the marriage has broken down. This requirement of the law is provided under section 99 of the Law of Marriage Act, Cap. 29 RE 2019. The section provides: '99. Subject to the provisions of sections 77, 100 and 101, any married person may petition the court for a decree of separation or divorce on the ground that his or her marriage has broken down but no decree of divorce shall be granted unless the court is satisfied that the breakdown is irreparable.' When a person wishes to seek a decree of the Court to terminate a marriage, there must be evidence proving that the marriage has broken down. It is the duty of the Court to determine whether the breakdown is beyond repair or not. When the Court finds that the marriage has broken down but not to the extent of beyond repair, the Court may order separation instead of divorce. But, if the Court is satisfied that the breakdown is irreparably, the Court may grant the decree of divorce. As already indicated, in determining whether the marriage has broken down there must be evidences to show that the marriage has broken down, section 107(2) of the Law of the Marriage Act, Cap. 29 RE 2019 provides that: 9 '107 (2) Without prejudice to the generality of subsection (1), the court may accept any one or more of the following matters as evidence that a marriage has broken down but proof of any such matter shall not entitle a party as of right to a decree: (a) adultery committed by the respondent, particularly when more than one act of adultery has been committed or when adulterous association is continued despite protest; (b) sexual perversion on the part of the respondent; (c) cruelty, whether mental or physical, inflicted by the respondent on the petitioner or on the children, if any, of the marriage; (d) wilful neglect on the part of the respondent; (e) desertion of the petitioner by the respondent for at least three years, where the court is satisfied that it is wilful; (f) voluntary separation or separation by decree of the court, where it has continued for at least three years; (g) imprisonment of the respondent for life or for a term of not less than five years, regard being had both to the length of the sentence and to the nature of the offence for which it was imposed; (h) mental illness of the respondent, where at least two doctors, one of whom is qualified or experienced in psychiatry, have certified that they entertain no hope of cure or recovery; or (i) change of religion by the respondent, where both parties followed the same faith at the time of the marriage and where 10 according to the laws of that faith a change of religion dissolves or is a ground for the dissolution of marriage.' In the instant case, there is evidence that the appellant and respondent have been living under separation for more than three years. Of course, I am mindful of the fact that the respondent decided to come out of the matrimonial home and the petitioner (appellant) remained in the house. Desertion does not only apply where the petitioner has left the matrimonial home. Where the petitioner remains in the matrimonial home and the respondent leaves the house, it amounts to constructive desertion. In other words, the acts of the petitioner forced the respondent to leave the matrimonial home. In the case at hand, the marriage between the parties was marred with perennial squabbles which compelled the respondent to desert the appellant. In my view, I find this act sufficient evidence of the breakdown of the marriage. Furthermore, the evidence adduced before the trial court shows that the marriage between the appellant and respondent has been in unhappy marriage for years even before the respondent left the matrimonial home. When the rift intensified, the record shows that the appellant referred the 11 matrimonial difficult to the marriage reconciliation board in line with section 101 of the Law of Marriage Act, Cap. 29 RE 2019. After the reconciliation failure, the board certified that it failed to reconcile the parties. This was another evidence that the marriage had broken down. Apart from the above evidence of breakdown, when the parties appeared before me for hearing, I observed dearth of any hope for reconciliation. They both pressed for the decree of divorce. Considering their age and the fact that they have stayed in the marriage for almost fourteen (14) years, I am convinced that their happy marriage has reached the state of beyond repair. Of course, I am saddened to witness the parties who once lived happily as husband and wife, they are now seeking a decree of divorce at tha old age. My wish to see their union subsisting is also rendered hopeless and I have to grant the decree of divorce as prayed. I therefore allow the appeal and hereby declare that the marriage has broken down and proceed to grant the decree of ddivorce. With immediate effect, the appellant and respondent should not be considered as husband and wife. Having ordered the dissolution of the marriage, the next pertinent issue is the division of matrimonial properties. However, I will not make an 12 extensive discourse on section 114 of the Law of Marriage Act, Cap. 29 RE 2019 because the parties agreed on how the division will be done. For the purposes of records and further reference, it is pertinent to revisit the section that governs division of matrimonial assets. The section provides: 114.- (1) 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 sate of any such asset and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to: (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. 13 During the oral submission, the parties listed almost all the properties that the parties jointly acquired during their marriage. In line with the above provisions of the law, I hereby order the division of matrimonial properties as follows: 1. The appellant shall retain the properties acquired in his name viz-. a. Toyota Prado with registration number T864 CZX; b. Mercedes Benz with registration number T958 AMY; c. The matrimonial home located at Nshambya; d. The house hold items such as Smart TV (43 inches); e. LG fridge; f. Two gas cookers, . g. Plot of land located at Bunkango; h. Shekainah Pharmacy located at Guinea Street; i. Shekainah Pharmacy located at Mugana. The shamba and house located at Bukabuye village will remain to be the clan properties of Jonathan Sospeter Ishengoma. Also, the Toyota Land Cruiser with registration number T454 DSU is the property of Nelson Mutatina Rutahindurwa Ijumba and it is not a matrimonial property. 14 2. The respondent shall continue to own the properties which were acquired in her name. These properties are: a. Toyota Mark II with registration number T745 DEZ; b. Music system with its speakers; c. Smart TV (43 inches); d. A fridge; e. TV stand; and f. The plot of land located near Nshambya Secondary School. 3. Apart from the above properties, the appellant shall pay the respondent an amount of Tshs. 100,000,000/=. The money will be paid in three instalments as follows: a. The appellant shall pay the 1st instalment of Tshs. 40,000,000/= on 15th December 2020; b. The appellant shall pay the 2nd instalment of Tshs, 30,000,000/= on 15th January 2021; c. The appellant shall pay the 3rd instalment of Tshs. o 30,000,000/= on 15th February 2021. 4. The appellant shall foot school expenses of their son who is currently schooling. No order as to costs. It is so ordered. 15 DATED at BUKOBA this 15th Day of December, 2020. 15/12/2020 Court: Judgment delivered this 15th December 2020 in the presence of the appellant and his advocate, Mr. Joseph Bitakwate and the respondent and her counsel, Mr. Dastan Muiaki. Right of appeal explained to the parties. JUDGE 15/12/2020 16