IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA DISTRICT REGISTRY AT SONGEA PC CIVIL APPEAL NO. 05 OF 2022 (Arising from Matrimonial Appeal No. 01 of 2021 Songea District Court at Songea, originating trom Matrimonial Cause No: 66 of 2020 of Mfaranyaki Primary Court). SOPHIA HUGO KUNGURU APPELLANT VERSUS DICKSON GABRIEL HONDE . JUDGEMENT Date of last Order: 21/07/2022 Date of Judgement: 27/05/2022 MLYAMBINA, J. Tt was in the year 2008 when the Appellant and the Respondent started living together as husband and wife until sometimes in 2017 when. they contracted a marriage under Christian rites. In their marriage, they were blessed with two issues namely: Emelencian Honde- aged 11 years and Carren Honde aged 5 years. According to the Respondent, during their marriage they acquired a house situated at Bombambili, a motor vehicle make Toyota Noah, three pieces of farm at Mitawa, a kiosk “kibanda cha biashara” at Manzese and house utensils. In the year 2020, the Respondent petitioned for the decree of divorce, custody of the children and division. of matrimonial properties. aIn response, the Appellant herein conceded to the petition of divorce but she adduced that they started life by leasing a room, Thereafter, they bought a plot and built the house mentioned by the Respondent, They also bought the farms; motor cycle and motor vehicle. The Appellant took a loan from VIKOBA TZs 2,700,000/= (Two Million and Seven Hundred Thousand Tanzanian Shillings), they did fire wood business which gave them a lot of benefit of which they bought the motor vehicle. However, the Respondent chased her away from their matrimonial home. The Appellant was therefore given a refuge by the Chairman. After full trial, the trial Court issued the following orders: One, Dissolution of marriage and issuance of the decree of divorce to the parties. 7io, the issues of marriage be kept under the custody of the Petitioner who will solely take care of them. 7Aree, the Respondent will have access to visit her children whenever she likes. ‘Four, all the assets are declared as the matrimonial properties, and are divided as follows; the Appellant is. awarded 25% of the value of the house, one farm, the kiosk at Manzese, one bed and Its mattress, one cabinet and television, and she will take a half of the house utensils. Two farms are given to.the issues of their marriage and the motor vehicle is given to the Respondent. The Appellant being aggrieved with the decision of the Trial Court, appealed before the Songea District Court at Songea (henceforth the First Appellate Court). After hearing, the First Appellate Court increased the percentage of the house from 25% to 30% of the market value of the house. Also, the Appellant was given 10% of a farm. Other orders were undisturbed. The Appellant was not satisfied with the First Appellate Court decision. She filed this appeal containing two grounds: 1. That, the First Appellate Court erred in law and facts for improper division of matrimonial assets without any regard to the extent of contribution made by each party; and 2. The First Appellate Court erred in law and In fact-to distribute a matrimonial property to the children which is contrary to the law concerned. The Appellant prayed the appeal to be allowed and any other relief (s) this Court may deem fit and just to grant.The appeal was heard orally. The Appellant was represented by Ms, Neema Nyagawa, learned Advocate while the Respondent was enjoying the service of Mr, Denis Lazaro, learned Advocate. To start with the first ground of appeal, the Counsel for the Appellant submitted that at the trial Court the Appellant together with the Respondent mentioned the properties which were jointly acquired during subsistence of their marriage. There was a house located at Bombambili, three farms at Mitawa within Songea Municipality, a motor vehicle, make noah and house utensils. The Parties contracted Christian Marriage in 2017. At page 2 of the First Appellate Court’s proceedings, it is stated that the Parties had presumed marriage since 2008. They were blessed with two issues. The first issue was born on 2009. The second issue was born on 2015. The Counsel referred this Court at page 2 - 3 of the Mfaranyaki Primary Court proceedings which shows that there is no dispute that the jointly acquired properties were a house at Bombambili, farms at Mitawa, a Car, Kiosk “Kibanda cha Biashara”, TV, Sofa set 2, Gas Cooker and its container, four beds and their mattresses, one Clothes Cabinet and utensils Cabinet. At page 3 of the same proceedings, the Appellant herein Supported the evidence of the Respondent and explained on how 4they jointly built the house and bought the Car. They bought a Motor Cycle make boxes. Later the Appellant borrowed money from VICOBA at tune of TZs 2,700,000/= (Two Million, Seven Hundred Thousand Tanzanian Shillings). They bought firewood and sold at profit, the money which they bought a Car. There was no any dispute on that. They also have a business hut at Manzese rented to one person. The Appeliant’s Counsel averred that the Trial’ Court divided the Shares of the house. The Appellant was given 25%. The Respondent was given 75%. The reason was that the Respondent was entrepreneur “Mijasiliamali.” The Appellant was a house wife dealing with tailoring. There was no basis of such distribution. There is no record to show how much was contributed by each party. ‘The second property mentioned by the Appellant Counsel is a Car. At page four of the Trial Court; it shows that SU1 (The Appellant) borrowed money from VICOBA TZs 2,700,000/=. They made business of firewood “kuni”, The proceeds were used to buy a Car. There was no dispute that the Profits of firewood were used to buy a Car, At page seven (7), the Respondent stated that he mortgaged the said Car. There is a debt of TZs, 7,000,000/= (Seven Million Tanzanian Shillings). Therewas no proof of that debt, The Car should have been sold and divided to the parties. It is. not stated how the seven Million was used. Apart from the afore mentioned property, the Appellant's Counsel mentioned the farms “shamba” situated at Mitawa within Songea Municipality. The District Court gave 90% shares to the Respondent and 10% shares to the Appellant. There was no reason given in relation to the said division. At the First Appellate Court the Appellant was given another five (5) shares to the house, making her have 30% shares of the house market value. The Appellant thought that she deserved 50% shares. The Appellant Counsel cited the case of Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of 2016 Court of Appeal of Tanzania at Mwanza (unreported) where the Court at page 12 explained that: Performance of domestic duties amounts to contribution. towards acquisition but not necessary 50%. In reply, Mr. Denis in relation to the first ground of appeal, told this Court that the First Appellate Court varied the shares from 25% to 30%. He conceded on the argument that the First Appellate Court erred in varying the percentage of the value of the house which is supposed to be given to the Appellant from 25% to 30% without giving the reasons.Mr, Denis submitted that; the Respondent filed the Matrimonial Cause at Mfaranyaki Primary Court. At page 5 — 6 of the Trial Court proceedings, SM1 told the Court that the house was built with the assistance of his father. It was not stated to what extent but such evidence was corroborated by SM2 (father of SM1). The father went further to state that he gave a capital to his son. Mr. Denis agreed that the decision of giving 75% to the Respondent and 25% to the Appellant was not. supported in the record. He added that, SU1 did not question on how SM2 built the house. The evidence does not reveal as to. who bought the plot. The distribution was not justified. There are some properties whose executions has already been done. As regards the motor vehicle, Mr. Denis referred this Court at page 7 of the judgement of the trial Court which shows that the Appellant was knowledgeable that the Respondent used a Car as a bond. But Mr. Denis thought that the trial Court ought to have verified the value of the said motor vehicle before handled to the Respondent. But execution has been done. The Car was given to the lender. He agrees. that the motor vehicle was restored to the Respondent herein but no reason was given. for that action, of which was not proper.‘As regards to the issue of the farms, the trial Court did not speak of three farms. It spoke on a farm, But the first Appellate Court spoke of three farms. One of the farms was divided as; 90% shares to the Respondent and 10% shares to the Appellant. It was not justified as well as not reflected anywhere in the Trial Court. After carefully consideration of the submission of the parties and the lower Court records, this Court is of the findings that the first trial Court did not re-evaluate the evidence of the Trial Court so that to satisfy itself as to the correctness of the decision of the Trial Court. Therefore, this Court being the second Appellate Court have to take the initiative to re-evaluate the trial Court evidence as it was decided in the case of Salum Muhando v. Republic [1993] TLR 170; and the case of The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149, to mention the few. After re-evaluation of the evidence, this Court Is of the findings that there is no dispute as: One, to the marriage of the parties. 7wo, that they have two issues of their marriage. 7hree, their marriage was legally dissolved by the Court and the property mentioned before the trial Court by the Respondent heréin to be the matrimonial property. Iwill herein quote the evidence of the Respondent when he was testifying before the Trial Court: Mimi na mdaiwa ni wanandoa toka 2017, katika kuishi huko éuimechuma pamoja; nyumba moja iliyopo Bombambil, shamba (kiwanja) kilichopo Matarawe (hekari 1), gari na kibanda cha biashara, na vyombo vya ndani ambavyo ni sofa set 2, TV 1, jiko la gesi na imtungi wake, vitanda vinne na magodoro yake na kabati mbili. [Emphasis added] From the above evidence, it is clearly evident that the Appellant and the Respondent jointly acquired the properties during the subsistence of their marriage. It is the Respondent ‘confession under oath. After going through the records and the submissions of the parties, this Court is of the findings that the dispute which is still persisting among the parties is the amount or percentage of the shares awarded to each party. Section 114 of the Law of Marriage Act [Cap 29 Revised Edition 2019] provides power to the Court to order division of Matrimonial assets or property subsequent to the grant of a decree of divorce or separation. For easy of reference: section 114 provides inter alia that:114.-(1) the Court shall have power, when granting or subsequent to the grant od a decree of separation or divorce, to order the division between the parties of any assert acquired by them during the marriage by their joint efforts or to order the sale of any such assert and the division between the parties of the Proceeds of sale. (2) in exercising the power conferred by subsection (L), the Court shail have regard to- (a) the.customs of the community to which the parties belong; (®) the extend of contribution made by in money, property or work toward the acquisition of the asserts; (©) any debt 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 purpose of this section, reference to assets acquired during the marriage including 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. [Emphasis mine] Being guided by the provisions of section 114. (1) of the Law of Marriage Act (supra), the Respondent herein adduced before the trial Court that; they acquired the above-mentioned properties when they 10were living together. The Respondent did. not evidence on how he contributed for the acquisition. Mr. Denis told this Court that the Respondent before the trial Court adduced that; he built the house in dispute by the help of his further, the evidence which he claimed to be corroborated by the Respondent father (SM2). Mr. Denis averred further that the Appellant herein did not contest on that fact. As a matter of fact, any person who wants to prove his/her case through evidence and witness shall testify under oath or affirmation by or before the ‘Court. This is the position in the case of Iringa International School v. Elizabeth Post, Civil appeal No. 155 of 2019, Court of Appeal of Tanzania at Iringa (unreported). Therefore, what is given under oath or affirmation is what qualify to be evidence and not otherwise. The Respondent told the Court that it was his father who helped him to build the said house after his evidence read to him and he proved to be correct and it was closed by the Court. Worse enough he introduced a new fact at the time when the Appellant herein cannot. be given a chance to cross examine him. The fact which was supposed to be introduced in submission in chief. Therefore, it was an afterthought not worth to be considered by the Court. At large, the 1record is silent as to how much the Respondent herein was assisted by his father. Also, the essence of calling a witness is to corroborate the fact in issue and not to establish a new fact which was not adduced by the complainant. SM2 averred that; he was the one who gave the Respondent the money to. build the house and for the business. This evidence contradicts. with the evidence in chief of the Respondent that he acquired the properties jointly with the Appellant. The Appellant conceded with the Respondent by elaborating that they started living in a single rented room before they bought the plot and built the house of their own, From the above submissions, this Court is of the finding that the properties mentioned by the Respondent before the trial Court were acquired jointly. The Respondent and the Appellant contributed by one way or another, there is monetary contribution from the Appellant and by work which cannot be denied. There is no any place. where the Respondent refuted about the money loaned by the Appellant for the firewood business. No any place where it was explained if the Respondent was the one who repaid the money loaned by the Appellant. Both parties have no more or less explanation as to the contribution ofthe matrimonial properties they have. There is a need, however, for ascertaining the contribution of each party in terms of percentage towards acquisition of the house. Moreover, the Counsel for the Respondent told this Court that the reasons behind for the trial Court to award a big share to the Respondent is that the Respondent is an entrepreneurship while the Appellant was a house wife who engaged with tailoring. From that argument this Court is of the finding that the Appellant contributed in acquisition of the matrimonial property in two ways; first through house work. This was stated in the case of Yesse Mrisho v. Sania Abdul (supra) and the case of Gabriel Nimrod Kurwijila v. Theresia Hassan Malago, Civil Appeal No. 102 of 2018, Court of Appeal of Tanzania at Tanga (unreported) and second through morietary contribution. There is no explanation as to who was responsible on re- paying the money which was invested in firewood business. The money which was loaned by the Appellant from VICOBA. Section 114 (3) of the Law of Marriage Act (supra) direct the Court to dived the debt if any which was contracted by the parties with joint effort. The debt mentioned by the Respondent in which the trial Court gave him a motor vehicle to repay has no any explanation. TheAppellant also mentioned the debt he owned by VIKOBA but the Court. did not take into consideration. As conceded, The District Court gave 90% shares to the Respondent and 10% shares to the Appellant for the farms “shamba” situated at Mitawa within Songea Municipality. There was no reason given in relation to the said division. Worse indeed, at the.First Appellate Court the Appellant was given another five (5) shares to the house, making her have 30% shares of the house market value but no reason was given. Non giving of reasons by both Courts below on such division makes the decision not a decision in legal parlance. The crux of giving reasons were stated by this Court in the case of Bahati Moshi Masabile T/A Ndono Filing Station v. Camel Oil (T), Civil Appeal No 216 of 2018, High Court of Tanzania, Dar es Salaam Registry (unreported) to include: One, reasons makes litigants to know the extent of how their arguments have been understood and analysed by the Court. 7wo, reasons foster judicial accountability by minimizing arbitrariness. 7hree, reasons facilitate certainty in law by assisting members of legal fraternity and the general public to know how. “cases of similar nature may be decided. four, reasons are the basis for the appellate Court to know if the decision was with apparent error. Five, reasons make litigants to know the Magistrate or Judges basis of the decision. Given, that both. lower Courts did not give reasons in their decisions on the shares contributed by each party towards acquisition of the house; and taking into consideration that both parties. did not establish their contribution towards acquisition of the house, the available proper remedy is to order retrial of the matter before another competent Magistrate, On the second ground, the Court awarded two farms to the issues. It is at page 6. That was contrary to the law. It was contrary to section 114 (1) of the Law of the. Marriage Act [Revised Edition 2019]. The. Division. of the jointly acquired properties has to be between the parties and not of the issues. The facts which were conceded by Mr. Denis and he prayed to this Court to nullify the decision of the first appellate Court as it-was against the trial Court decision. In his brief. rejoinder the Counsel for the Appellant insisted the remained property which were yet to be distributed which are house, 15motor vehicle and farms to be divided equally among the parties. It is a cardinal rule that, the matrimonial property has to be dived to the parties based on their contribution. The children did not contribute to the acquisition of the matrimonial property. Therefore, they did not deserve to be given shares for the matrimonial property. The fact which was conceded by both parties. From the above reasons, I hereby uphold this appeal, quash the decision of both First Appellate Court and of the Trial Court. I further order retrial of the matter before another competent Magistrate. No order as to costs. It is so ordered. 24/08/2022 Judgement pronounced and dated 24 August, 2022 in the presence of the Appellant, her Advocate Neema Nyagawa and Zuberi Maulid, Advocate for the Respondent. Right of Appeal fully explained. 16