20130312 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (PC) CIVIL APPEAL NO. 25.0F 2011 [Appeal from the judgment of th~ Kinontloni District Court -in-CivTI AppearNo-~ 53 of 2010- (Kiwonde, -RM) dated 23rd February-2orr, - original Civil Case No. 6 of 2010, Kinondoni Primary Court] ] ZAMOYONI MOGELLA ............................................................... APPLICANT VERSUS PILI ~S·H:IDI .........·.... ■•■• ■ .I •••• ■ ••••••••••••••••• I ••• ■ ••••••••• ■ •••••••• RES PON DENT JUDGMENT F. Twaib, J. For 30 years before the breakdown of their marriage in 2006, the Appellant Zamoyoni Mogella, and the Respondent Pili Ras~jidi, were husband and wife ·, respectively. They were married under Ismalic rit~s. At the Kinondoni Primary Court in Kinondoni District, Dar es Salaam, the Appellant sued the Respondent for division of matrimonial property. The Primary Court found that the marriage had broken down and proceeded to determine the issue of division of matrimonial assets. It decided that the parties are entitled to equal division of the said properties. Before litigation, on 31 st May 2009, the Appellant issued an Islamic talak to the Respondent. From then on, the parties apparently considered their marriage to have been dissolved-of course, wrongly, since in law, the only valid talak is one givE:!n by a Court. The Primary Court also dealt with this case on tha1\ wrong assumption. Anyway, this is not one of the issues in this appeal. T~1e issue here is division of '1 ~ Page 1 of 10 '' matrimonial properties, which the Court may consider and determine even where . no divorce decree is issued, so long as the parties are living in separation, as is clearly the case herein. ~ ~ -·- So, wherr-th·e~Appellant -app.r0ar:;be0~tae:-P.r-imar:y-C:c,~ur:t-at. ·---T -~--- Kinondoni ---· in__cbliLCase -·~-.-. - · - - - -·~--· No. 6 of 2010, he only wanted the Court to det~rmine the lingering issue of division of matrimonial properties. On the strength of the evidence adduced, the Primary Court was satisfied that the parties had acquired, jointly during the pendency of their marriage, the following properties: 1. One double-storey house at Mafere Street, Kinondoni (Dar es Salaam) witn six bedrooms; 2. A single-storey house at Kinondoni Mkwajuni, Dar es Salaam (4 bedrooms); 3. One unfinished house at Tegeta (Dar es Salaaim) (3 bedrooms); and 4. One house at Morogoro with 3 bedrooms. ~ t 5. A Scania lorry; 6. A Toyota Corolla saloon car; and 7. A company known as "MOP!". It is not disputed that the first two houses were registered in the name of the Appellant while the other two were registered in the name of the Respondent. Despite the registration, however, the Primary Court was satisfied that there was no division of matrimonial assets between the parties. The Appellant was an international footballer who played at the local level (including the Tanzania National Team) and abroad. It is not disputed that the Appellant was the one wt,o made the greater financial 4 contribution towards the acquisition and development of all four landed l properties, the lorry and the car. On the other ha-nd, the Primary Court found . ; Page 2 of 10 ,. that the Respondent had contributed in many ways towards the development of the landed properties, by way of her own labour and financially. Among the financial contribution was that the Appellant twice took a loan from her employer, National Social Security Fund (NSSF) which she usi~d in the development of the 1 - ~said--pr:oper:ties and in paying ofLc[editors,~Easy_Fi~ance Ltd., who_thre_a_te_ne_d_to • sell off the lorry to recover its due from the Appella~t. The parties differ in their narration of the circumstances that led to the disposition of the lorry and the house at Tegeta, but the Primary Court accepted the testimony of SU2 Abdillah Mogella, who said that that the house at Tegeta was sold in order to avert an imminent auctioning of the lorry to pay off a bank debt, and that it was the Appellant who later sold the lorry and pocketed all the proceeds. It accepted the Respondent's statement that the house at Tegeta was·- sold by the Appellant who then convinced her to sign the transfer documents, but did not accept her statement that the Appellant did not give her anything from the proceeds of the sale of the house. Rather, it believed the evidence of SU2, who told the court that those proceeds were divide(ti equally between the parties, '•I, who are his father and mother respectively. ~ 1 In essence, the Primary Court found that there had been no division of matrimonial assets and that all properties available at the time of the breakdown of the marriage were jointly acquired and developed and that each of the parties was entitle to an equal share in the said properties. The Appellant was dissatisfied with these holdings. He appealed to the District Court. The District Court allowed the appeal in part. In substance, however, the outcome of the appeal was a loss to the Appellant, as he lost what he apparently fought most to upset: The decision for equal division of matrimonial assets. He thus appealed to this Court. t The Appellant has raised only one ground of a~peal, which runs thus: The Magistrate erred in law and fact in awarding the R~spondent fifty percent (50%) Page 3 of 10 share of the matrimonial properties." Prof. Abdallah Saffari, learned counsel, appeared before me advocating for the Appellant, while the Respondent was unrepresented. The learned-Pr-ofessorargue-d-that-the Appellant~s ~vicience-at the_P.rim_a_l}' C:01..!_rt showed that he was the one who provided the finances needed to buy and ·)° develop all the properties and that his client was n:ot involved in the sale of the house at Tegeta. Prof. Saffari combined the reasons for the Primary Court's decision to grant the Respondent 50% of the properties and came up with only four: - -----1--;-=Fhe-RespGrtdent-bad_ta_ken a loan from her employer, NSSF. 2. The Respondent spent her salary to contribute to the construction of the houses; 3. The Respondent supervised the constructiqn of the houses with great honesty; 4. The marriage survived for 30 years. Prof. Saffari maintained that the Primary Court's findings were erroneous because they ran counter to section 114 (1) (2) of the Law of Marriage Act, Cap 29. He referred the Court to the decision of the Court of Appeal in the case of Pulcheria Pundugu v Samuel Huma Pundugu (1985) TLR 7. He said that the criterion for distribution of matrimonial assets is under section 114 of the Act, to the effect that the Court shall consider the extent of contribution by each of the parties in the acquisition of the assets. Pundugu's case also considered the decision of the Court of Appeal in Bi Hawa Mohamed v. Ali Sefu [1983] TLR 32. Prof. Saffari thus argued that the main question before me is a question of fact: who among the two has made greater contribution that the other. That is ~ Page 4 of 10 correct. And, in terms of financial contribution, there is no dispute that it was the Appellant who contributed more than the Respondent. Indeed, as Prof. Saffari pointed out, the Respo_ndent herself, in the Primary Court and before me while arguing this appeal, admitted that it was the Appellant_ who contributed more than her. But the Respondent also asserts that she hast made - greater non-financial contribution, especially in the development of the droperties, than the Appellant. ; She also said that she single-handedly bought and developed the Tegeta property. The professor argues that the present case is on all fours with Pundugu's Case. In his view, the loan was too small to build a house, and even ~~orLthe_autba.r.ity_of Bi_ Hawa's Case, the same does not justify 50% contribution. While I entirely agree with the learned professor's exposition and interpretation of the law, I would, with all due respect, disagree with him on its application to the facts of this case. ' I will explain. But to be able to fully appreciate the basis upon which the learned Primary Court Magistrate reached the decision he reached, a fresh look at -the evidence adduced at the trial is apposite. * i i--i Two witnesses gave evidence on behalf of thef Appellant at the trial: The Appellant himself and SM2, his relative Hamisi Mog~lla. The gist of their evidence was that the parties had already divided the: matrimonial assets among themselves, and wanted the Court to simply recognize that pattern of distribution as a mutual distribution of the said properties and grant it the force of law. On the other hand, the Respondent maintains that there has been no such distribution and that she is entitled to 50% of the properties. (Indeed, at the end of her submission, she asked for 75% of the value of the properties). She argued that the house at Tegeta was already sold and thus cannot be part of the distribution at present. Page 5 of 10 ___ .I_._ - The Respondent made a lengthy submission before me. In essence, it reiterated her earlier testimony at the trial. Her version of the stories regarding the lorry and the unfinished house at Tegeta was collaborated by SU2 Abdillahi Mogella, - art adult _sQn_ qf t~e parties, except for the fact that the Respondent did get a share from the pro~~~ds-of- the-sale ifllie-house-at-Tegeta.-Rartof theJl]Ofl~Y__ was spent on recovering the lorry, and part of it was divided equally as between his mother and father (the parties herein). Contrary to what each of the parties told the Court; the Primary Court appear to have believed the evidence of SU2 Abdillahi Mogella who testified that both ----- parties divided the proceeds for each sale equally amongst them. The Court rejected-the Appella-nt's--argumeRt--tbat_Jt_was the Respondent who sold the Tegeta property and the lorry and gave him nothing. And while it acceptea-tli'°e---- Respondent's narration of events for both items, it did not believe that the Respondent got nothing out of the moneys realized-from the sale of the house at Tegeta, but that she did get half the same. As for the lorry, the Court was satisfied that the Respondent got nothing. As for division of matrimonial property before litig~tion, the Court accepted the Respondent's position that there had been no divisi,on. Referring to the evidence ' of the Appellant's own witness, SM2 Hamisi MogeUa, ! the trial Court noted that this witness was absent when the alleged division o~ property was done. The Primary Court did not, rightly in my view, accept the fact that the various properties were registered in the name of one of the parties means that it belongs to that spouse. Rather, there is only a presumption in law that the said property actually belongs to the spouse in whose name it is registered. This presumption is rebuttable. The Court expected, again rightly, to be availed with evidence showing proof of the fact that a division_ of matrimonial property has been done, in order to rebut this presumption. It did not find any such evidence. Page 6 oflO r Submitting in support of the appeal, Prof. Saffari referred the Court to various instances in the record of the Primary Court where the Appellant told the the Court argued that the The Appellant's own witness and younger brother SM2 ,,, confessed not knowing what ultimately happened to the house at Tegeta and the lorry. The Respondent argued strongly in an attempt to ~how how she contributed to development of each of the properties by labour a~d finance. She told the Court that the Morogoro house was built on a plot of land that was purchased by money sent from overseas by the Appellant and in his name. Later on, when they ----- needed money to 15ui1d-on-i:he-r:,let,tAey-agreed that she should survey the plot and have it registered in her name so that she could get a loan from her employer. They did this and the money (a total of Tshs. 8 Million) was used to build the house together with finds contributed by the Appellant. At the trial, the Respondent presented to the Primary Court documents evidencing the above facts, including her salary slip that shows she has been paying off the debt, some receipts for building materials, letters showing she was indebted. Hence, while she admits that it was the A,ppellant's money that bought the plot, she maintains that the funds for its deveJopment came from both the Appellant and herself. 1 The Respondent further told the Primary Court that she had bought the Tegeta property with her own funds and built it entirely with her own funds and labour. Then the Appellant took a loan from NBC Bank, Mnazi Mmoja, in the name of their company called MOP!. They bought the Scania lorry. They defaulted in their repayment and the Bank instructed Majembe Auction Mart to impound the lorry and sell it by public auction. The Appellant then convinced the Respondent to sell the unfinished house at Tegeta in order to save the lorry. Page 7 of 10 '• The Respondent said she at first vehemently refused, but ultimately had to give in after the Appellant sent their children and his relatives to ask her to agree. She was convinced that once the lorry was released, it could generate enough money to- buy. .c3nother__ hol.:)s~. _It was also the lorry that provided employment to their son, Abdillahi and the App~ll~n"i°'s relafive,-one-Bbniface-Isinik-a.By-that time,_ tbe Appellant had already issued her the talak, which was one of the reasons she did not want to sell the property. J However, the Appellant, their son and others prevailed on her and she ultimately ~ gave in and signed the transfer documents. She was even threatened by a lawyer - I that she would be sued if she would not sign. It was thus the Appellant who insisted that she sellstneT-e-geta-house.-I-t-r:ealised_a sum of Tshs. 44,000,000/=. The lawyer's notice of intention to sue was accepted as an exhibit by the tria1---- Court. She said she was also promised that she would get a share of the proceeds of the lorry once it was sold. That promise, according to her, was never fulfilled. As for what appears to be the most valuable property, the double-storey house at Mafere Street, Kinondoni, the Respondent admits that it was the Appellant's money (a total of TZS 9 Million, paid in three installments) alone that was used to but the plot. The development, however, was done jointly. The Appellant made the greater financial contribution while she contribu\~d more in terms of labour. The Toyota Corolla, on the other hand, was bou~ht by the Appellant for the Respondent's use. But it was suddenly taken away by the Appellant after the talak. The Respondent has asked for ¾ of the properties. As Prof. Saffari rightly pointed out, the Respondent did not cross-appeal on this finding by the trial Court. She cannot therefore bring out this claim at this stage. I agree with the learned professor and would not accept the prayer for¾ of the value. Page 8 of 10 .. ,, As to whether the Primary Court erred in ordering equal division of matrimonial propeties, I have considered the factors that Prof. Saffari mentioned as having been the basis for the Primary Court's decision: The Respondent's financial as . _______ -~?IL as non-financial contribution towards the acquisition and improvement of all the pr~p~rti~s~-th_e _la-6our-she- expended in their-development,. and tbe_le_ngt_ll_ e:>f time the parties lived as husband and wife. In addition, I have taken in account the fact that the Tegeta property was sold and distributed equally between the parties (thereby controverting the assertion that it was the sole property of the Respondent as her share in the division of ' did not get anything from assets that never was), the fact that the Respondent the sale of the lorry anan--er--performaAEe-Gf--dornestic__chores in line with the provisions of section 114 (2) of the Law of Marriage Act and the decision of the Court of Appeal in Bi Hawa's case. All these factors combined, I think, justice demands that the Respondent be entitled to an equal share in whatever remains in matrimonial properties. Hence, looking at the evidence adduced at the trial as a whole, I see no reason whatsoever to upset the decision of the Primary Court on the division of matrimonial property. However, there is need to make orders as to how the remaining properties will be distributed as between_ the parties. Doing the best I can in the circumstances, I order as follows: 1. The appeal is hereby dismissed. 2. The Appellant shall take the single-storey house at Mkwajuni, Dar es Salaam and the Respondent shall take the single-storey house at Morogoro. 3. The double-storey house at Mafere Street, Dar es Salaam shall be divided in equal shares between the Appellant and the Respondent. Page 9 of 10 r • 4. Given the parties' spousal relationship, there shall be no order as to costs. DATED AT DAR ES SALAAM this 12th day of March 2013. ~ - -- - ~ -- ~--= ·-~ ~~!f_a1~~,1~~~:~ --= ~ -= ~ - ---- Fauz Twaib Judge 12th March 2013. ------- Delivered~Court this 12rn day of_.MarcnZ0T3-:----- ~\ '·~; Judge .-;:r,/,., -t,~-:,: , ?!;,~ . ,fi~._.: "l'.v 1th March 2013. ,......, - ~............__ ~-.---·~-~~-~,,.,.. ,.; \ ; ;..... " ..,_,.,,__ ,,,.,,•._·,.·::--- - ~ ··:';:";'.,; __~.,;1'.' ,.,.-.•··"''.,:•:,;• Page 10 of 10