in the high court of the united republic of ......subordinate courts' concurrent decisions...

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI

PC CIVIL APPEAL No. 7 OF 2019

(C/F Civil Appeal No. 05 of 2019 District Court of Same at Same, Original Shauri la Madai No. 03/2019, Gonja Primary Court)

ELIZABETH ELIFURAHA..................APPELLANT

VERSUS

SALEHE HOSENI............................... RESPONDENT

4th August & 17th September, 2020

JUDGMENT

MKAPA, J:

In this appeal the appellant, Elizabeth Elifuraha was aggrieved

by judgment and orders of the District Court of Same at Same

(1st appellate court) in Civil Appeal No. 05 of 2019 before J.J.

Kamala, RM delivered on 25th November, 2019.

Brief facts that have given rise to this appeal is to the effect that

the appellant was married as a second wife to respondent

through Islamic marriage contracted in 1982 and were blessed

with four issues. All of the issues have already attained the age

of majority. Unfortunately, their marriage got sour and ended in

divorce in 2006 after being in separation for five years. The

divorce was granted in Gonja Primary Court vide Shauri la of 14

Ndoa/Talaka Na. 4/2005 (the trial court). After divorce

everything went under the carpet until 2019 when the appellant

returned to the same court claiming for the distribution of

matrimonial assets that the couple had acquired together during

the subsistence of their marriage. She mentioned the assets as

1 house with twelve rooms, five plots, 60 cattle, 30 sheep, 30

iron sheets, 60 coconut trees, 30 chicken, 24 sacks of

unprocessed rice (mpunga), domestic house utensils and

furniture.

After the hearing the trial court granted each party one house

and one plot. Other assets were not substantiated thus were not

distributed between the parties. The appellant was aggrieved by

the decision, she appealed to the 1st appellate court but the same

upheld the trial court's decision. Still aggrieved, she preferred

this appeal on the following grounds;

1. That, the resident magistrate erred in law and fact in

upholding the trial court's decision which divided properties

that were neither appellant's or respondent's while leaving

matrimonial assets undivided.


holding that the appellant was awarded a matrimonial

house by the trial court without additional evidence of exact house awarded to the appellant. vW ■ i

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upholding trial court's decision which failed to give weight

to the testimonies and exhibits produced by the appellant

in acquired matrimonial assets.

4. That, the trial resident magistrate misdirected herself in

upholding that the respondent had bought pieces of land

while with the first wife.

At the hearing parties consented the appeal be disposed of by

filing written submissions. The appellant was represented by Mr.

Deogratius Sawere learned advocate while the respondent

appeared in person and unrepresented.

Submitting in support of the appeal, Mr. Sawere argued the first

and second grounds of appeal jointly that, the trial court erred

in granting the appellant only one matrimonial house while there

were more houses and the 1st appellate court erred in upholding

such decision. Further that, a 12 bedroom matrimonial house at

Puplik which the parties lived before they separated and divorced

was left undistributed despite the trial court acknowledging the

same. Moreover, the trial court granted the respondent one

house at Same without specifically stating where exactly since

all houses are located within Same district.

On the third ground Mr. Sawere argued that the trial court failed

to give weight to the witness testimonies and exhibits tendered

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evidencing how the matrimonial assets were acquired. That the

appellant testified to have obtained %. acre at Makalanyika

though exhibit K2 but the trial court granted the same to the

respondent on the ground that he inherited it from his barren

deceased aunt without proof of death certificate, WILL or

through probate distribution. On the same note, Mr. Sawere

argued that the trial court believed on the respondent's

testimony and granted the appellant an imaginary farm located

at Makalanyika measuring 1/2 acre without proof of its existence.

Regarding the 60 cattle herds the learned advocate argued that

the respondent did not deny their existence but claimed that

they were inherited from his father and the court never awarded

the appellant distribution from the same. He contended that for

20 years of marriage they lived together and the appellant being

a public servant, she must have put some efforts in their

maintanance worth consideration of division.

On the 4th ground of appeal, Mr. Sawere contended that, there

is nothing that the appellant prayed was granted, her distribution

based on assumptions and not facts while there was evidence

which the court could have relied upon. Further that, section

114 (1) of the Law of Marriage Act and the celebrated case

of Bi Hawa Mohamed V Ally Sefu [1983] TLR 32 both cement

on the distribution of Matrimonial properties based on joint

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contribution from each party but both subordinate courts did not

adhere to the same. Learned counsel prayed that this Court allow

the appeal, quash and set aside 1st appellate court's decision and

order retrial of the matter for the interest of justice.

In reply, the respondent submitted against the first two grounds

of appeal that the properties that the appellant claims to be

undistributed are not matrimonial ones and she failed to prove

how she contributed to their acquisition. He argued that the

appellant should not be given properties out of sympathy just

because she is a woman as it was observed in the case of Sofia

Hamad Tabiada V Said Ally Mchanama (Civil Appeal No. 90

of 2019) HC at Dsm. Therefore, the subordinate courts did not

error in distribution since they all considered contribution of each

parties' contribution

The respondent contended in respect of the third ground of

appeal that, the trial court properly analysed and gave weight to

the evidence adduced by each party but it was the appellant that

failed to discharge her burden of proof on the properties that the

respondent alleged to have inherited from his deceased aunt

were matrimonial assets jointly owned. He cited section 58 and

114 (3) of the Law of Marriage Act which provides for

recognition on properties personally acquired by a spouse before

marriage. He insisted that the appellant never improved

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the properties including cattle that the respondent acquired

before marriage thus she cannot be entitled to the contribution

as it was held in the case of Mohamed Abdallah V Halia

Lisangwe (1988) TLR 197.

It was the respondent's further assertion that the appellant

stayed fourteen years before division was made and she did not

prove whether the cattle improved or perished. That, since the

appellant failed to establish her contribution on such properties,

both subordinate court were correct to hold that there was no

proof of their existence.

On the last ground the respondent argued that, the appellant

failed to properly establish the houses acquired during their

marriage as the duty to discharge such proof was hers and she

failed to do so. He prayed that this appeal be dismissed with

cost.

In her brief rejoinder, the appellant reiterated her submission in

chief and maintained that the division was not fair as she was

granted non existing properties.

After rival arguments between parties the only issue for

determination is whether the division of parties' matrimonial

assets was proper and just. This being a second appeal, I am

therefore restricted to interfere with the concurrent decisions,

unless it is so necessary. See Amrathlar Damadar & Another

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V A.H. Jariwalla [1980] TLR, Qamunga V Bi. Bura Nade, Civil

Appeal No.93 of 2013 (unreported).

It is undisputed that the parties were granted divorce by the trial

court way back in 2006, but, division of their assets was not

ascertained until 2019 when the appellant knocked the same trial

court for such division. Generally, division of matrimonial assets

depends on the contribution of each party in acquisition of such

properties. In ensuring that the division is just the courts are

guided by Section 114 of the Law of Marriage Act, Cap 29,

R.E. 2019 (Law of Marriage) which states;

"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 sale of any such

asset and the division between the parties of the

proceeds of sate.

(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;

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(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."

In the case of Bi Hawa Mohamed V Ally Sefu, (supra) the

Court of Appeal discussed at length the import of section of the

above provision and held, inter alia

(i) Since the welfare of the family is an essential

component of the economic activities of family man

or 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'

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(ii) The "joint efforts" and work towards the acquiring

of the assets" have to be construed as embracing the

domestic "efforts" or "work" of husband and wife.

In their testimonies the appellant testified to be a school teacher

whereas the respondent was working with East Africa Customs,

thus they all had contributed in the acquisition of the pleaded

assets which were;

a. % acre piece of land at Makuyuni

b. 3 acres farm at Katambwe

c. 1/2 acre piece of land at Kizerui

d. 1/4 acre piece of land at Maore Chini

e. 1 acre at Puplik which has one house of 12 rooms and 60

coconut trees.

f. 60 cattle, 30 sheep and 30 chickens.

g. 24 sacks of unprocessed rice (mpunga)

h. Domestic utensils

i. Furniture; sofa set, 6 beds with their mattresses, 2

cupboards and a table

My analysis will therefore base on whether the subordinate

courts adhered to the earlier mentioned principles of division in

making sure that there was a fair division of the above assets to

the parties. As briefly stated earlier, the appellant petitioned for

divorce in 2005, the parties had already lived in separation for

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five years i.e. from the year 2000, and she waited until 2019 to

file for division of assets.

In other words, the appellant abandoned her matrimonial home

for five years before petitioning for divorce and stayed another

fourteen years to claim for division of matrimonial assets. In that

regard, it is not logically reasonable to claim for assets like 24

sacks of unprocessed rice (mpunga), chickens, domestic house

utensils and furniture after 19 years of being away. Obviously

such things have worn out. I will therefore not interfere with the

subordinate courts' concurrent decisions regarding such

properties.

The same goes to sixty cattle and 30 sheep, at the trial court,

the appellant argued that they jointly bought them while the

respondent argued that he inherited only thirty cattle from his

father. And he kept four cows with the appellant for milk

consumption only, a fact which the appellant never denied. The

trial court held that the cattle were inherited therefore were not

subject division and the 1st appellate court upheld the same,

nothing was evidenced regarding the sheep. In this appeal the

appellant argued even if the cattle were inherited she is still

entitled to division since she contributed in their up bring and

maintenance during her 20 years of marriage. \KwCib-

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Be as it may, it is still my considered view that, first, proof of

their existence after 19 years she was away was not

substantiated and second, the appellant did not elaborate on

how she contributed in maintaining them whether they were

sixty, forty, thirty, or four as her story changed over the time on

the exact number of the cattle claimed. Therefore, the

subordinate courts did not error in not giving division orders to

that effect and I will not fault their concurrent decisions.

In respect of five farms, the appellant did not adduce evidence

to prove the existence of 3Z> acre piece of land at Makuyuni, 2

acres farm at Katambwe, 1/2 acre piece of land at Kizerui and 1/4

acre piece of land at Maore Chini. There is no evidence as to

when they acquired those farms, from who and for what

consideration of money. The only piece of land that was proved

is 1 acre farm at Katambwe through exhibit KI which shows the

respondent to have bought the same from one Athumani Kisaka

on 31st May, 1986. Since the same was acquired when parties

were married, subordinate courts erred not ordering division on

the same. I therefore order it be divided 30% appellant and 70%

respondent since the appellant did not prove on how she

contributed to its acquisition.

Lastly is on one acre farm with 12 roomed house at Puplik area

which the appellant claims is the only matrimonial tause they

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had acquired during their marriage. The latter claims that the

house belonged to his deceased aunt whom he was taking care

and since she was barren, it was given to him after her demise.

Further that, he inherited the same before he married the

appellant thus it cannot be subjected to division. I however differ

with his contention as he never proved that assertion by either

bringing a death certificate, WILL or division done through

probate.

Since even the respondent acknowledge that they lived in that

Puplik house throughout their marriage which lasted for almost

twenty years, I am of the considered view that, they jointly

acquired it and the appellant deserves division of the same. From

the nature of parties' works the respondent income must have

been more than that of the appellant. I therefore award the

plaintiff 30% and the respondent 70% of the one acre Puplik

farm and its 12 roomed house.

Apart from that, the appellant claims that the trial court granted

her unknown house and unknown piece of land which she never

claimed when she petitioned for division of assets. Going through

the trial court's proceedings and decision I find that to be true,

the appellant never pleaded nor acknowledged the two houses

and farms which the trial magistrate ordered division. His

reasoning for decision based on the respondent's testimony

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which the appellant denied their presence. In other words even

if those properties exists, she does not want them as she pleaded

for only one twelve roomed house at Puplik area which this court

has already determined herein above.

In the circumstances the trial magistrate erred in granting

division of the properties not pleaded by the appellant as she

denies their presence to this moment and the 1st appellate court

also erred in upholding the same. In the case of Astepro

Investment Co. Ltd V Jawinga Company Limited, Civil

Appeal No. 8 of 2015 (CAT) (Unreported) the Court of Appeal

held inter alia at page 17 that;

Now looking at the issues which were framed by the

learned trial Judge, which 'were reproduced above,

and the proceedings thereto, it is evident that there

was departure from what had been pleaded by the

parties. In the circumstances, we are constrained to

subscribe to what was submitted by the learned

counsel for the appellant that, the issues framed did

not reflect the actual dispute which existed between

the parties. As a result, the procedure offended the

cherished principle in pleading that, the proceedings

in a civil suit and the decision thereof, has to^

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from what has been pleaded, and so goes the

parlance 'parties are bound to their own pleadings'.

The Court of Appeal further held at page 18 that;

Back to the appeal before us, the decision which was

delivered by the learned trial Judge, did not arise from

what had been averred by the parties in their

pleadings.

In the event, I hereby set aside the division of assets order

granted by the trial magistrate and alternatively I order the

following;

1. One acre farm at Katambwe be divided 30% appellant and

70% respondent.

2. One acre farm and 12 roomed house at Puplik be divided

plaintiff 30% and the respondent 70%.

This appeal is therefore partially merited to the extent explained

herein above. This being a matrimonial dispute I give no orders

as to costs.

It is so ordered.

Dated and delivered at Moshi this 17th day of September, 2020

JUDGE17/09/2020.

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