oc 16 HANS OMMY CIVIL APPEAL NO

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 23919 OF 2024 (Originating from Matrimonial Cause No. 224 of2023 at the District Court of Temeke at One Stop Judicial Centre Temeke) ZENA LEOPOLD HANS............................................................. APPELLANT VERSUS HAM1SI SHABANI MZAVA.............. .................................... RESPONDENT JUDGMENT Date of last order: 03/01/2025 Date of Judgment: 29/01/2025 OMARI, J. Zena Leopold Hans and Hamis Shabani Mzava the Appellant and Respondent respectively and the parties herein celebrated their marriage in the Islamic form on 20 November, 1988. Life happened and marital bliss waned. The Appellant herein Zena Leopold Hans, eventually filed Matrimonial Cause No. 224 of 2023 at the Temeke District Court at the One Stop Judicial Centre among other orders seeking a divorce decree and distribution of matrimonial properties. At the trial, the Appellant listed houses at Kilungule A Kimara, Dar es Salaam Msumi- Mbezi Dar es Salaam, a plot at Moshi Kilimanjaro, and other - properties that were said to have been taken and or sold by the Respondent. On the other hand, the Respondent named the house at Kilungule as being the only matrimonial property, stating that the property at Msumi was his late son's while the house in Moshi was acquired before the marriage, that is 1986. In determining the second issue which was whether there are properties acquired jointly, the trial court being guided by section 56 and 114 of the Law of Marriage Act, Cap 29 R.E 2019 (the LMA) and the cases of Bi Hawa Mohamed v. Ally Seif [1983] TLR 32 and Habiba Ahmad Nangulukuta and 2 Others v. Hassan Ausi Mchopa and Another, Civil Appeal No. 10 of 2022 broached the subject of what amounts to matrimonial properties. The learned magistrate then broached the requirement of evidence of contribution to the acquisition of the matrimonial properties as was observed in the case of Zawadi Abdallah v. Ibrahim Iddi, Civil Appeal No. 10 of 1980, Mariam Tumbo v. Harold Tumbo [1983] TLR 293 and Bibie Maurid v. Mohamed Ibrahim [1989] TLR 162. The trial court also cited section 60 of the LMA which provides for presumptions regarding property • acquired during the marriage. He then went on to state that the house at Kilungule was a matrimonial property and divided it into equal shares. He also adjudged the house at Msumi as a non-marital asset, and thus could not be divided. The other properties that the Appellant had stated were marital properties and were with and or sold by the Respondent were not determined as there was no proof regarding the Appellant's assertions. The house in Moshi, Kilimanjaro was not determined or divided. This is what aggrieved Appellant. She appealed to this court armed with three grounds as follows: 1. That, the learned trial magistrate erred in law and fact by excluding the joint acquired house in Moshi, Kilimanjaro from the matrimonial distribution. 2. That the learned trial magistrate erred in law and in fact by not concluding on the issue in relation to the joint acquired house in Moshi, Kilimanjaro. 3. That the learned trial magistrate erred in law and in fact by not evaluating the evidence and testimonies for the witness of the Appellant herein. It is on the strength of the three grounds that the Appellant is seeking orders inter alia that the appeal be allowed and the judgment of the court be quashed. The Respondent contested the appeal. The Appellant had the services of Rose Nyatega of the LHRC Legal Aid Clinic while the Respondent had the services of Barnaba Luguwa of Luguwa & Co. Advocates. In her submission, Ms. Nyatega commenced by rephrasing the grounds of appeal to achieve clarity. She then submitted on the first ground of appeal explaining that by excluding the house in Moshi, Kilimanjaro which was jointly acquired the trial court erred as it undermined the principle of equitable distribution of matrimonial properties. She submitted that the said house was acquired in 1991 after the two got married in 1988. Furthermore, evidence of how the property was acquired was highlighted in the trial court but was not evaluated to reach a just decision. According to Ms. Nyatega, this is contrary to section 114 (2) (a) of the LMA since the trial magistrate did not consider the Appellant's contribution in the form of cooking for the contractors, fetching water and other domestic activities in relation to the house as he did not include it as part of the matrimonial properties. Regarding the second ground of appeal which was seemingly submitted jointly with the third ground of appeal, Ms. Nyatega submitted that the court did not give a conclusive answer on the status of the house in Moshi. It discussed the same in its judgment but it neither made a conclusion nor gave reasons for its exlusion. Counsel cited the case of Geita Gold Mining Limited v. Sweetbert Hurber, Civil Appeal No. 269 of 2019 and concluded her submission stating that the Appellant's contribution be acknowledged and be awarded half of the property in Moshi. Kilimanjaro. When it was his turn, Mr. Luguwa replied to the submission taking on the first and second grounds of appeal jointly. He argued that since the Appellant is the one who asserted the Moshi house is a matrimonial property then she had the burden of proof to show it was acquired during the subsistence of the marriage. Counsel contended that the Appellant is not on record to have stated when the respective property was acquired it is only the Respondent who stated the house in Moshi was acquired in 1986 which is two years before the two got married. Mr. Luguwa explained further that the assertion that the house was acquired in 1991 is a new fact. And, new facts should not be introduced at this stage. He cited the case of Moses Kazimir Mbunda v.Celina Winfred Mbunda, Civil Appeal No. 39 of 2012 to fortify Regarding the second ground of appeal which was seemingly submitted jointly with the third ground of appeal, Ms. Nyatega submitted that the court did not give a conclusive answer on the status of the house in Moshi. It discussed the same in its judgment but it neither made a conclusion nor gave reasons for its exlusion. Counsel cited the case of Geita Gold Mining Limited v. Sweetbert Hurber, Civil Appeal No. 269 of 2019 and concluded her submission stating that the Appellant's contribution be acknowledged and be awarded half of the property in Moshi. Kilimanjaro. When it was his turn, Mr. Luguwa replied to the submission taking on the first and second grounds of appeal jointly. He argued that since the Appellant is the one who asserted the Moshi house is a matrimonial property then she had the burden of proof to show it was acquired during the subsistence of the marriage. Counsel contended that the Appellant is not on record to have stated when the respective property was acquired it is only the Respondent who stated the house in Moshi was acquired in 1986 which is two years before the two got married. Mr. Luguwa explained further that the assertion that the house was acquired in 1991 is a new fact. And, new facts should not be introduced at this stage. He cited the case of Moses Kazimir Mbunda v.Celina Winfred Mbunda, Civil Appeal No. 39 of 2012 to fortify his argument that there being two dates of acquisition of the house in dispute, that is 1986 and 1981 then the matter is a property dispute outside the purview of the matrimonial court. Furthermore, Mr. Luguwa argued that the trial court did not establish that the house was acquired during the marriage then that has to be determined as such and the issue of distribution can then be entertained. He then went on to pray that the court should refuse both grounds of appeal. On the third ground of appeal, counsel argued that the trial magistrate analysed the Appellant's rights on the properties, however, it is evidence that denied the Appellant some of the properties, thus the assertion that the magistrate did not evaluate the evidence is unfair. In her rejoinder, Ms. Nyatega contested the assertion that the Appellant did not testify on the year the house was acquired as she and PW2 both testified the same was acquired in 1991, thus this is not a new issue. She stated that the Respondent had no documentary evidence to back that the house was acquired in 1986, therefore merely asserting so does not give him the right. I have gone through the trial court's record, the grounds of appeal and the counsels' diametrically opposed submissions. I am of the view that there is only one issue for this court's determination, that is whether the appeal is meritorious. What the parties through their counsels are at loggerheads is a house at Moshi Kilimanjaro. Therefore, I shall focus on determining the issue looking at how the house in question featured in evidence and was treated by the trail court in doing so I shall have discussed all three grounds of appeal. When testifying on 27 May, 2024 the Appellant had this to say regarding the house in dispute: "...kuhusu nyumba ya Moshi, hiyo nahusika sana kwa sababu nimetoa vielelezo vya ndoa nimepambana tumeishi humo hadi kuhamia Dar es Salaam..." On the same day, SM3 one Zainab Juma is recorded to have stated: "...huko Moshi kuna nyumba v/amejenga, iko Moshi KHunge Madukani Moshi Wiiaya ya Hai..." On the other hand, the Respondent is recorded to have said the following on 29 May, 2025: "Tumechuma nyumba moja na kabia sijamuoa niiibahatika kupata eneo kijijini nikajenga nyumba na mwaka 1988 aiikuja kwenye nyumba akiwa na mtoto wa miezi mitatu...... Nyumba ya kijijini ni ya kifahari (sic) pakushukia, haina mipaka nayo 9(sic) kuna Watoto na wajukuu naomba shauri Hhaishiwe (sic) kijiji Hi familia zikae." In the Appellant's submission counsel stated the house was built on a plot that was bought by the Respondent in 1991, however this was not stated during the trial. I have also gone through the Petition for divorce and the properties that the Appellant was asserting as matrimonial properties acquired during the subsistence of the marriage are listed under paragraph 12, this includes a property in Moshi, Kilimanjaro. In his Answer, the Respondent agreed to some of the items, but he denied and or disputed the rest including the house in dispute. He averred that the said house was acquired by him in 1986 before the two got married. At the hearing, when the testifying the Appellant mentioned they acquired three houses one of them being the house in dispute. She also stated that she has a copy of the sale agreement, there was no objection from the Respondent thus it was admitted into evidence as part of Exhibit A2. The copy of the said agreement is stamped 12 June, 1991. This means the land was bought in the subsistence of the marriage and the house was built during the parties' marriage. In the trial court's judgment, this is what the learned magistrate had to say: '"While the Respondent was confidently testified that the house in Moshi is his own, trying to convince the court he purchased the residence prior to being married to the Petitioner, but there was no proof submitted to substantiate his stand'' Nothing else was uttered regarding the said house. After going through the record, I agree with the learned trial magistrate that the Respondent tried to paint a picture that it is not a matrimonial property he had no proof of the same. However, the trial magistrate did not then state the fate of the said house. This, is what disenchanted the Appellant. Moreover, I am inclined to disagree with the Respondent's counsel that the is conflict or misunderstanding that the property in Moshi was acquired in 1986 as averred by the Respondent and 1991 as averred by the Appellant's counsel in her submission thus, there is a land conflict which needs to be determined by a court with competent jurisdiction. I am disagreement because according to the record of the trial court, Exhibit A2 depicts that the land was bought on 12 June, 1991 so it could not have been acquired in 1986. Therefore the instant case is distinguishable from the Moses Kazimir Mbunda v.Celina Winfred Mbunda (supra). This is so because although the Appellant did not state the same in her testimony, she only tendered a copy of the sale agreement which has that information and the Respondent did not contravene neither the existence of nor the contents of the sale agreement. He actually asked for the purchase price during cross examination. He cannot now turn back and now claim that the Appellant did not prove the house is matrimonial property. According to the evidence on record, the house was acquired during the subsistence of the parties' marriage. This is not a new fact as the Respondent is trying to allude. This out of the way, I now have to answer the question of what is the fate of the said house. The law is clear, section 114 of the LMA calls for the division of matrimonial properties where it has been established there is a property that was jointly acquired by the parties during the subsistence of the marriage. Central to that is the question of each parties' contribution to the said property. The record is bereft of either of the parties' contribution to the development of the said property other than that the Respondent bought the plot on which the house is built for TZS 12000. In cases where there is there is no evidence from both parties regarding the extent of their contribution towards the acquisition of a specific property, this court tends to divide the same equally between the two as per the provisions of section 114(2) of the LMA. However, in this case the Appellant brought evidence that the plot was purchased by the Respondent. Therefore, his contribution is by virtue of that fact is somewhat greater than that of the Appellant. In that regard, I hold that the house in Moshi was acquired through the joint efforts of the parties while they were married hence the same should distributed between the parties. The Appellant should get 40% of the value of the said house while the Respondent is entitled to 60% of the value of the house. Consequently, this appeal is allowed. Due to the nature of this matter I make no orders as to the costs. A.aTOMARF JUDGE 29/01/2025 Judgment dated and delivered on 29th January, 2025 in the presence of the parties both appearing in person. A.A. OMAR JUDGE 29/01/2025