PC Civil Appeal No

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA PC CIVIL APPEAL NO. 22 OF 2023 (Arising from Mpanda District Court in Civil Appeal No. 11 of2023 and originated from Mpanda Urban Primary Court in Matrimonial ZACHARIA YOHANA APPELLANT ELIDA GYUNDA MACHUNGWA RESPONDENT 27h February & 14h MRISHA, J. J­ On 27th April, 2023, the marriage between two parties namely Zacharia Yohana (the appellant) and Elida Gyunda Machungwa (the respondent) was dissolved by an Primary Court of Mpanda in Matrimonial Cause No. 07 of 2023. The spouses were not flourished to have children; under that circumstance, the trial court divided the matrimonial assets by considering their contribution in acquisition of the assets. 1 Disgruntled with the judgment and decree, the appellant lodged a petition of appeal with the District Court of Mpanda at Mpanda against the granting of divorce and order for division of the matrimonial assets. Among others, he prayed to the court to reverse the judgment of the trial court, set aside an order for divorce in alternative and equal division atrimonial assets. Unfortunately, things did not go well on the the s the District Court of Mpanda presided over b . G. arned Senior Resident Magistrate, dismissed the ith no order as to costs on the ground that t ial was right and fair in dividing matrimonial properties a d further at lant failed to prove on the balance of probabiliti istence of the properties as he listed thereto. Being dissati th ecision of the first appellate court, the appella eal is court against the same. The petition of appea rounds of appeal which can be listed as follows: One, the 1 e court grossly erred both in facts and law to hold that the marriage has broken down irreparably without considering the fact that Appellant and Respondent are still living under the same house. Two, the 1st appellate court grossly erred both in fact and law to hold that the 2 appellant has not proved his contribution to the properties without considering the fact that all assets acquired during existence of marriage are matrimonial properties. Three, the 1st appellate court grossly erred both in fact and law to hold that the appellant has not contributed anything to the acquisition of the assets without considering the fact that the appellant being a husband and a head of the family, alone is a contribution to the acquisition of the assets. Four, the 1st appellate court grossly erred both in fact and law to hold that the respondent proved to have acquired all properties as she tendered exhibits, without considering the fact that the said exhibits do bear both names of the appellant and respondent as evidence of co-ownership of properties and Five, the 1st appellate court grossly erred both in fact and law not to consider assets acquired jointly which were not listed by the trial court. During hearing of the present appeal, the appellant appeared in person, unrepresented, same applies to the respondent who also appeared in person legally unrepresented. This Court allowed each of them to argue for and against the appeal orally. In support of the Petition of Appeal, the Appellant started to submit on first ground of appeal by denying that his marriage with the respondent, is 3 irreparably broken down; he argued that they were living together under the same roof and he used to perform his duties as a husband, and no conflicts emerged between them. In supporting his point, the appellant argued that he was taking care his wife, driving her to work and any place she wanted to go, no conflict between them ensued. With regard to the second ground of appeal, t ellan mi that, they worked and jointly acquired properti is marriage was officially recognized by both e the Government. According to him, the cq d the marriage are belonging to the family a oa ngle person. Regarding the d the appellant argued that the respondent h sband than him and his responsibility is to main r with the essentials of life. However, he argue at the of any properties during the marriage was for the sake o On the fourth ground of appeal, the appellant submitted that the first appellate court erred for its failure to consider some of the properties listed 4 which have names of both spouses and other properties have one name of respondent or appellant while the properties were acquired jointly. Lastly, the appellant submitted that the first appellate court erred in fact and law by not considering the assets acquired jointly, but not listed by the respondent in the trial court. However, he argued that the trial court considered just five properties listed by respo amely, one use of Rungwa, one plot located at Rungwa, one of one machine of timber and house appliance, wh not considered by the court as the properties which were acquired jointly. To support his point, the appellant mentioned the house located at Pwani (Coastal Region), Mlandizi, one house located at Singida, one Motor vehicle, Saloon appliance, Popcorn machine, milling machine, one Bajaj tricycle and some items which was in the house. He thereafter concluded his submissions by urging the court to quash both decisions of the trial and appellate courts and order equal division of matrimonial assets between the parties. In reply, the Respondent argued and contended that their marriage is irreparably broken down as they have not been sharing same bed since on 5 August, 2022 until present; also they have not been consummating for about three years. Regarding the issue of matrimonial properties claimed to have been acquired jointly, the respondent submitted that the properties can be matrimonial properties if the said properties were jointly acquired. She further added that the appellant squandered esses established by him and some of machine have become scrapers om all that, the respondent claimed that she was providing food, clothes and essential for their family. As if that is not enough, the respondent submitted that the appellant used to abuse and oppress her and did not contribute anything to the acquisition of matrimonial assets. Regarding fourth ground of appeal, the respondent contended that naming of properties is just to respect her marriage; however, naming the properties does not mean the properties were equally acquired. The court considered the evidence adduced to prove contribution of the parties. With regard to the assets acquired jointly, but not listed by the respondent in the trial court, the respondent contended and submitted that the appellant did not produce any evidence to prove the existence of the said 6 properties; hence, the court cannot distribute the assets without the person alleging to prove ownership. For the above reasons, the respondent prayed that the appeal be dismissed and the court be pleased to uphold the decisions of both lower courts. In the rejoinder, the appellant reiterated what he submitted in his submission in chief and prayed to the court to From the pleadings of lower courts and oth parties, the main issue for determinatio al is merited or not. In my scrutiny of the co found that the complaints are centered on wh er arable broken down, whether the properties list der the category of matrimonial assets and the of principle of extent of contribution of each spouse in the e matrimonial properties when distribution was or In the matter and, it is not in dispute that the parties were husband and wife before divorcing, and they contracted their marriage on 15th February, 2014. It is also apparent that their marriage had been dissolved by the court of law. In the present appeal, the appellant has complained 7 that the lower courts erred by dissolving their marriage although they are still in love, living together under the same roof and he has been performing his duties as a husband and no conflict between them is existing. On the other side, the respondent has denied having good relationship with the appellant; she contended that her marriage is irreparably broken down as they were not sharing same bed since August, 2022, and there was no consummation between them for three years. Having heard both parties, it is important for this court to determine the marriage status of the parties on whether the marriage is broken down beyond repair. The court is given power under the provisions of section 99 of the Law of Marriage Act to grant the decree of divorce upon being satisfied that the marriage has broken down irreparably. In the present case, the reasons advanced by the respondent are desertion from matrimonial room and no sexual intimacy since on August, 2022, she was being beaten because she is unable to bear children, and was insulted and be abused being by the appellant. 8 The provisions of section 107 (c) and (d) of Law of Marriage Act, provides that among the evidence that the Court may take into consideration to prove that this marriage is broken down are cruelty and willful neglect. The section 107 (c) and (d) read that; “Wiithout prejudice to 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 a right to a decree. (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. Guided by the above provisions of the law, it is evident that cruelty whether mental or physical and wilful neglect on the part of the respondent, are taken to be grounds of dissolving the marriage. In this case, the petitioner stated that the disputes and violence were actuated by the fact that she is unable to bear children. She further argued they lived in separate rooms since in August, 2022, that she was neglected by the appellant. In my view, the acts of willfully refusing to consummate the 9 marriage, that marriage can be considered voidable and further get annulled. Despite the above observation, the respondent stated that their marriage was not a happy one and she is not willing to continue with the appellant as her husband. Since there is no love between the spouses, the court cannot force them to live together as husban wife. It is commonly that where love disappears between those in marriag one can do to make a party to love a perso onger has that emotion This position was stated in the case of John David Mayongo v Caterina Malembeka, PC Civil Appeal No. 32 of 2003, where the court held inter alia that; "Mrrriage being a voluntary union of a man and a woman intended to last for their joint lives; it is the parties themselves who are the best judges on what is going on in their joint lives. A crucial ingredient is love. Once disappear, then the marriage is in trouble. There is no magic one can do to make the party who hates the other to love her or him. [Emphasis is mine]. 10 In this appeal, it is apparent that the respondent is not read to proceed with the marriage while the appellant wants the court to reverse the decision of the divorce of lower courts and declare parties as husband and wife. On this circumstance, the court cannot force parties to be husband and wife while one of the parties do not want inue with the said marriage. That being the case, and in consideration the uthority, this Court finds that granting of divorce in the circumstances of this case and, the first a te not to disturb the findings of the trial cou hich ri nd at the marriage between the parties herein, is i P ly broken down and proceeded to grant a decree of di e to pa Turni to the sec an issues which are centered on existence of matrimonial assets nd division of matrimonial properties in which the trial and first a llate urt decided that the appellant's listed properties were not proved to exist, while on the other hand, the respondent alleged to have proved existence of assets and how she acquired them, the law of Evidence Act [Cap 6 R.E. 2022] under section 3 (2) (b) provides that in 11 Civil matters, including matrimonial causes and matters, its existence is established by a preponderance of probability. “3 (2) A fact is said to be proved when (a) N/A (b) In civil matters, including matrimonial causes and matters, its Thus, based on the above provisio f th fully in agreement with the decisions of the first and tri e appellant was duty bound to prove the existence of houses and properties he alleged to own jointly with the respondent. Th quired is on the balance of probabilities. The records of the trial court indicates that the appellant testified before trial court by mentioning a number of houses and other properties existed without providing proof of their existence. This is depicted at page 19 of the trial court, where the trial court Court held, and I quote: “Japokuwa mdaiwa alieleza kuwa wana mali nyingi ikiwemo nyumba tatu, lakini hakuwa na ushahidi wa mali hizo, alizisema tu kwa mdomo bila ya ushahidi wowote.” 12 Again, the trial court went further and hold that, on the mentioned properties whose existence is not proved, the court cannot discuss or divide those properties. This is stated at page 20 of the impugned judgment of the trial court. As earlier eluded, this court concurs with the concurrent findings of the both lower courts on the position that the a it wa nd to prove the existence of the mentioned lance of probabilities, but he failed to disch For those reasons, this ground of appeal is found to be devoid of merits. On the issue of division of matrimonial properties, it appears that the trial court divided the matrimonial properties which were proved existed and acquired by joint efforts. The petitioner proved the existence of matrimonial properties by tendered exhibits showing how those properties were acquired, the exhibit which was not objected by the appellant and admitted as Exhibit „KMII' It is settled that before the Court makes an order for distribution of matrimonial assets, there must be evidence adduced to prove that there was contribution from both parties. The provisions of section 114 (2) of the 13 Law of Marriage Act among other things under sub section (b), provides for circumstances to be considered when the court is about to order the division between the parties of any assets acquired by them during subsistence of marriage by their joint efforts. The court shall inter alia, have regard to the extent of the contribution made by each party in money, property or work towards the acquiring of the assets. Moreover, the famous case of Bi Hawa 989] TLR 162 sets the standard of interpreta ovisions section 114 (2) of the Law of Marriage Act, 1971, provides the same that; "Sicce the welfare of the family is essential component of the economic activities of a family man and woman it is proper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial or family assets. The "joint efforts” have to be construed as embracing the domestic "fffort" or "work" of husband and wife." Back to the present appeal, the appellant in his submission when dealing with ground three of appeal and submission in chief on trial court, argued that he took care his wife, used to drive her to work and any place she 14 wanted to go. He further argued that he took responsibility of providing essentials of life to his family, although the respondent denied that the appellant provides essential to the family and also did not contribute anything in acquisition of properties, because he was jobless. However, based on the position of Bi Hawa Mohamed’s case (supra), I find the appellant proved on the balance of probability that he contributed to the alleged properties. Therefore, it is my considered view that the appellant entitled to the share of the matrimonial properties. Hence, it is my finding that the divisions of matrimonial properties made by the trial court were proper and I see no good reason to disturb the concurrent findings of the trial and first appellate courts. Consequently, the appeal lacks merit and it is hereby dismissed and the court makes no order as to costs. Order accordingly. DATED at SUMBAWANGA this 14th day of March, 2025. A.A. MRISHA JUDGE 14.03.2025 15