IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

LADISLAUS MUTASHUBIRWA.................................. APPELLANT

JUDGEMENT
O4'h March, 2021 & 28* May, 2021

EBRAHIM, J;
This appeal originates from the decision of the District Court

of Halo in Matrimonial Cause No. 6/2019. In that case, the herein

respondent petitioned before the trial court for divorce and

consequential orders of equal division of matrimonial assets. The

respondent also prayed for custody of two issues to bo under the

appellant and (she) be ava’led access to the issues and costs.

Having found that the duo were not married, the trial court

neglected the issue for an order ot divorce and proceeded to

award a relief of cuslody as requested. No costs wore awarded.

The trial court furtner divided assets to a ratio of 60% to the

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appellant and 40% to the respondent in reliant to valuation results

by a qualified valuer.

Disgruntled the appellant herein appealed to this court

raising the following grounds;

1. THAT, the trial magistrate erred in law and fact by treating the

appellant's properties as matrimonial assets subject to division despite

the strong evidence produced by the appellant showing that the

properties exclusively belong to the appellant.

2. THAT, the trial magistrate erred in law and fact in holding that the

respondent is entitled to 40% of appellant’s properties without showing

the respondent’s efforts In acquisition of the said properties.

3. THAT, the trial magistrate erred in law and fact by deciding on

distribution of properties which do not exist or not part of matrimonial

assets.

Tnis instant appeal was argued by way of written submission.

The appellant was represented by Ms. Rehema Samwel, learned

advocate while the resporoent was legally assisted under the

probono panacea by Ms. Grace Daffa, learned advocate.

To support tne first ground of appeal; Ms. Rehema submitted

that it was the respondent who nad onus to prove the allegations

on acquisition of the listed properties as per section J10 (J) (2) and

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112 of the Law of Evidence Act Cap 6; RE 2019 but failed to do so.

He added that the appellant was the one who adduced the

strong evidence on sole acquisition of the properties hence they

were not subject to division.

Ms. Rehema explaine that from the list of properties provided

by the respondent; some of the properties ere appellant's

personal properties as testified before the trial court and some are

owned by Power Food Company where the appellant has been

working for gain. Those properties include one house and vacant

land situated at Kitunda Kinyantira-llala Dar es salaam, one

vehicle make Suzuki Carry, one Motorcycle make Fekon, chips

and soft drinks business located at Mwembeyanga-Temeke-Dar es

salaam including the equipment, household utensils and eight (8)

livestock pigs. She contended that all the properties were divided

by the trial magistrate without considering that section 60 (a) of

the Law of Marriage Act, Cap 29 RE: 2019 allows spouses to have

personal properties.

Quintessence on personal properties; the appellant’s counsel

accentuated that the appellant proved ownership of a landed

property based on the documentary evidence of a sale

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agreement which reveals I he appellant to have purchased the

same and the respondent therein was just a witness. He believed

the trial magistrate misdirected himself to divide the said property

since it bears the name of the husband and there is a rebuttable

presumption that the property belongs absolutely to the

appellant. It was further submitted that :he soft drinks business

belongs to the appellant as a ease agreement (exhibit D2) of a

shop was executed by the appellant and excludes the

respondent. Again, counsel for the appellant contended that the

respondent did not prove on existence of 8 pigs which she

claimed to own jointly with the appelant.

On properties owned by the company, Ms. Rehema while

arguing on the second ground of appeal specifically touched the

said issue that the respondent’s testimony which demonstrates

that the car (Suzuki Carry) was a matrimonial property costing TZS

700,000/= and a motorcycle with registration number T924 AAC

Fekon costing TSHS. 2,000,000/=; had been strongly denied by the

appellant’s testimony as he claimed that the cor was the property

of the Power Food Company. She said the appellant appealed

that the mentioned motorcycle never existed but the respondent

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instead mentioned another motorcycle with registration no. T 962

BWS Linker Model owned by PAN AFRICA ENTERPRISES LTD which is

the place where the appellant was working. Counsel for the

appellant contended therefore that the trial court erred to divide

the two without sufficient proof from the respondent on their

existence.

Submitting further on the second ground of appeal, Ms.

Rehema submitted that the court erred to award 40% share of

properties to the respondent since she did not prove her efforts

towards acquisition of the same. To substantiate her arguments,

she cited the provisions of section J14 (2) of the Marriage Act Cap

29 RE: 2019 arc the case of Gabriel Nimrod Kurwijila vs. Hassan

Malongo, Civil Appeal No. 102 of 2018 (unreported). She further

prayed the court not to grant anything to the respondent. She

explained the reason being that the appellant is lhe one wno shall

suffer irreparable loss because he is maintaining the 1st child who is

mentally ill and unarguably needs more attention. Moreover, all

the expenses on food, shelter etc of the issues are on him.

In elaborating the 3rd ground of appeal, counsel for the

appellant submitted that the trial magistrate did not take into

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consideration his testimony and the evidence adduced by the

appellant as required oy law. She urged this court being the first

appellate court, to re-evaluate the evidence afresh. To support

her contention, she cited the coses of Martha Michael Weja vs.

Hon. Attorney General and 3 others. Civil Appeal No. 3 of 1982;

Hosea Katampa vs. The Ministry of Energy and Minerals and 2

others (unreported: and the case of Jamal Tamim vs. Felix Francis

Mkosamali & Attorney General, Civil Appeal No. 110 of 2012

(unreported). She prayed for the appeal to be allowed with costs.

In reply, Ms. Grace countering the arguments; replied on the

ls1 ground that the parties did cohabitate ever since 1998 and for

all that lime the respondent performed wifely and motherly duties.

She comerced that the trial court was right when it decided all

the listed properties were matrimonial assets jointly acquired by

the parties as the trial magistrate directed himself correctly from

the evidence in records that there was no dispute that all *he

properties wore acquired during cohabitation. Respondent’s

counsel furher quoted and invited the court to make reference a-

page 19 o' the trial court’s judgment. The learned counsel

accentuated that the matrimonial properties subject to division

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includes both properties acquired and the ones acquired by

either oarty prior to the cohabitation but substantially improved

during suosistence of their cohabitation through joint efforts. To

substantiate her arguments, she cited the provisions of section 114

(3) of the Marriage Act, Cap 29 RE: 2019.

Ms. Grace emphasised and replicated what ’he trial couh

reasoned that a document pertaining to ownership of a property

by having a name of one party alone, cannot be a ground for not

cividing tho same to both spouses.

On the second ground of appeal, it was argued that the trial

court was correct to award *he resoondent 40% share of each

listed property since the respondent contributed in labour through

domestic services for the welfare of the family. To support her

argument, she invited the court to make reference to section 114

of the Marriage Act, Cap 29 RE: 2019 respectively ana also cited

tho prominent case o* Bl HAWA MOHAMED vs. ALLY SEFU [1983] TLR

32 (CA) and ELIESTER PHILEMON LIPANGAMAHELA vs. DAUD

MAKUHUNA, CIVIL APPEAL NO. 139 OF 2002, HC AT DSM.

On the third ground of appeal, the learned counsel

suomitted stiffly that it of the appellant had a burden to prove

acquired during cohabitation and which she believed to be

matrimonial assets were not theirs. To support her argument, she

cited section 111 and 112 of the Evidence Act, Cap 6 RE: 2019. The

counsel turther contented that the trial court well considered

evidence adduced by the parties during trial and arrived to

correct findings. Tne counsel then prayed for the three grounds to

be dismissed with costs as they lac< merit.

In rejoinder, Ms. Rehema persistency emphasised on what

she had submitted prior in her submission in chief and

supplemented that the respondent did neither contribute to

acquisition nor improve of any property acquired by the appellant

hence she is not entitled to a share. She therefore stated that the

cited cases by the trial court of Chakupewa vs. Mpenzi and

another [1999] 1 EA 32 and other cited cases of Nderetu vs.

Nderetu 1995 1 EA 235 and, Eliester Philemon Lipangahela (supra),

are inconsequential to this appeal. She also claimed that the case

of Bi Hawa Mohamed (supra) is irrelevant in this case since the

parties were not married. He finally prayed for this appeal be

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allowed and lhe decision of the first appellate court be quashed

and set aside.

I have dispassionately considered the grounds of appeal in

the light of the submissions of both parties. In essence all three

grounds of appeal are ’ntertwined, them generally.

The issue for determination that comes out of the three

grounds is Whether the trial court was right to divide all the listed

properties in a ratio of 60% to the appellant and 40% to the

respondent

I have painstakingly examined the evidence on record and

submissions by the learned counsels and proceed to enlighten on

the following;

One, lhe respondent (who was PW1) gave testimony that

she and the appelant stored living together since the year 1997.

They separated in 2016, hence falling within the definition of

presumption of marriage (section 160 of the Law of Marriage Act,

Cap 89) She had demonstrated to have performed domestic

duties as a wife and involved herself in various businesses Ike

selling fish at the market and paid some expenses. Whilst the

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appellant contends that the respondent has contributed nothing

since she was a house wife and neither employed. However, from

the records, there was no evidence tendered by either porty

whicn suggest that neither of the listed properties was not

acquired during cohabitation period. For that reason, it is prudent

to state clearly that even if the appellant was the one who went

out to earn for the family, the respondent on the other hand

brought up a family and maintained a home. Thereby, she was

actually supporting the appellant in his bread-winning activities by

relieving him from family duties. This is also a contribution and

when their relationship came to an end, she had a right to claim

the share of the properties basing on her vital conlribulion towards

maintaining and nurturing the fami y as illustrated in the prominent

case of Bi hawa Mohamed vs. Ally Seif [1983] TLR 32. Basing on this

point of view, I do not agree with the appellant's counsel

contention that the respondent contributed nothing. The trial

coup’s decis’cn mace it clear while reflecting on its record$ that

the respondent testified to hove been performing the domestic

activities at home for the bettermen- of rhe family and the

appellant never disputed on that aspect. The law is clear that

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failure to challenge an important fact during cross examination,

implies admission of that fact. The respondent therefore is entitled

to a share on all properties acquired in the subsistence of

cohabitation including the larded property.

Second, As for the car (Suzuki Cany) which was c aimed by

the appel ant to be the property of the Power Food Company:

and the mentioned motorcycle with registration number T924 AAC

Fekon and 8 pigs (livestock) wh'ch the appellant claimed that

they never existed; it was the contenlion of the appellant’s

counsel that the respondent was duty bound to prove both that

the car and the mo’orcycle are matrimonial properties and that

the said 8 pigs are existing. Keenly from the records, the

respondent testified that they bought the said car for Tshs.

700,000/= and later on they managed to ouy a motorcycle for

Tshs. 2,000,000/=. She also testified that at first, they had 2 pigs and

as time passed the two managed to have 8 pigs. But on tne other

hand, the appellant just in a narrow manner testified that he is not

tne lawful owner of both the car and motorcycle out rather The

motorcycle was the property of Pan African Company. Yet again

he denied the exis4ence of the 8 pigs.

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 Principally, in civil cases the burden of proof lies on a party

who alleges anything in his favour, (see the case of Antony M.

Masanga v. (1) Penina (Mama Mgesi) (2) Lucia (Mama Anna),

Civil Appeal No. 118 of 2014, CAT (unreported). It is a common

knowledge that in civil proceedings the party with legal burden

also bears the evidential burden and the standard in each case is

on the balance of probabilities. Again, it is a trite law that both

parties to suit cannot tie but the person whose evidence is heavier

■han lhat of tne other is the ore who must win as in the English

case of Re B L[2008]UKHL 35, the court made it clear that;

“if a legal rule requires a fact to be proved {a fact in issue), a

judge or jury must decide whether or not if hapoenea. There is

nc room for a finding that h might have happened. The law

operates a binary system in which the only values are 0 and 1.

The fact either Happened or if did not.”

Basing on that position and on, measuring the testimonies

given by the parties at the trial from records on the aspect of the

car (Suzuki Carry), motorcycle and 8 pigs; I see the respondent's

evidence is heavier compared to the denia< on the existence and

ownership of the said properties. If the appellant desired the trial

court to decide dependent on the existence of facts that the

with as ho had asserted, he should have proved those fact by

offering evidence to support. Instead, he just made a denial while

he had on opportunity to bring evidence from the respective

companies. For that reason, their existence and ownership as

family assets is undisputed. In measuring the weight of the two;

the respondent's evidence, is heavier compared to the

appellant's hence the existence of assets is in-cisputed.

Third, tne trial court held that the two were not under

presumption of marriage due to the fact that there was no proof

given by the petitioner (herein the resoondent) that the two had

acquired the reputation of being husband and wife. With all due

respect to the learned trial magistrate, this was an erroneous

approach since the records reveals thet respondent's witness

(PW3) who was the respondent's mother testified that the

aope lant went to introduce himself at the respondent’s family. In

a number of occasions she tried *o reconcile them whenever they

had disputes like couples. She a so said that she advised them to

go to court after she failed to reconcile their squabbles and in her

testimony she referred the appellant as a husband to her

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daughter and the respondent as a wife of the appellant. For lhat

reason, the provision of section 160 (2) of the Law of Marriage Act

Cap 29 was appropriately invoked to order division of matrimonial

properties and custody of the issues. The appellant's counsel has

contended that the case of Bi Hawa Mohamed (supra) was

irrelevant since the parties were not married couples. With all due

respect and without prejudice, that argument is groundless for the

very reason that the said case entails most on the aspect of

division of matrimonial properties in connection Io the provisions of

the Law of Marriage Act, Cap 29. The wording of section 160 (2) of

Cap 29 allows the provisions of the Act which are relating to reliefs

to the married couples *o oe applied when resorting parties who

have lived under presumption of marriage. The section reads;

(2) When a man and a woman have lived together in

circumstances which give rise Io a presumption provided for in

subsection (J) and such presumption is rebutted in any court of

compefen4- jurisdiction, the woman shall be entitled to apply for

maintenance for herself and for every child of the union on

satisfying the court that she and the mon did in fact live together

cs husband and wife for two years or more, and the court shall

hove jurisdiction to make an order or orders for maintenance

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 and, upon application made therefor either by the woman or

the man. to grant sucn other reliefs, including custody of

children, as it has jurisdiction under this Act to make or grant

uoon or subsequent to the making of an order for the dissolution

of a marriage or an order for separation, as the court may think

fh, and the provisions of this Act which regulate and apply to

proceedings for, and orders of, maintenance and other reliefs

shall, in so far as they may be applicable, regulate and apply to

proceedings for and orders of maintenance and other reliefs

under this section.

From the above provision of the law, the Bi Hawc case

(supra) fits in four with the circumstances of the instant appeal.

Fourth and Last the trial court ordered lhe division of the

matrimon’cl assets in a ra*io of 60% to the appellant arc 40% to

the respondent in relicnt to valuation fallouts by a qualified valuer.

But again, the two issues Rinus Ladislaus and Henreietha Ladislaus

were placed under The custody of the appellant which of course

he is also responsible for the'r maintenance. Considering the fact

that the appellant was lhe key player in acquisition of the family

assets and the maintenance obligation he faces bearing in mind

one of the children is mentally ill which colls for an optimum care

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inevi*oble for him; to award 60% share properties to him and 40%

to the respondent is unproporfonate. Upon identifying the

obligations that the appellant shall be encountering towards the

issues and his contribution which played a key role to acquisition

of the properties, I vary the ratio of division of all the matrimonial

properties to 80% for the appellant and 20% to tne respondent in

reliant Io valuation fallouts by a qualified valuer.

Therefore, basing on the above four (4) rudiments which I

have expounded, the appeal partly succeeds. Taking into

account of the nature of this matter being matrimonia>, each

party shall bear its own costs.

It is ordered accordingly.

DAR ES SALAAM
28.05.2021

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