IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
IN THE DISTRICT REGISTRY OF ARUSHA
AT ARUSHA
PC CIVIL APPEAL NO. 15 OF 2022
(C/F Civil Appeal No. 15/2021, in the District Court of Karatu at Karatu Karatu
Originating from Matrimonial Cause No. 05/2021 in the Primary Court at Karatu)
BENEDICT JOSEPH....................................... APPELLANT
VERSUS
MAGDALENA HOSEA........................................................ RESPONDENT
JUDGMENT
12/07/2022 & 27/09/2022
KAMUZORA, J.
Magdalena Hosea, the Respondent herein petitioned for the decree
of divorce, division of matrimonial properties, custody as well as
maintenance of children against Benedict Josephat, the Appellant herein
at the Primary court of Karatu at Karatu (the trial court) in Matrimonial
Cause No. 5 of 2021. The trial court after hearing the evidence adduced
by both parties reached its decision that the marriage between the
parties was irreparably broken down hence a decree of divorce was
issued. On the claim for division of the matrimonial properties the trial
court ordered the parties to equally distribute the matrimonial house to
Page 1 of 14
which every party was entitled to 50% of the value of the house. The
trial court also granted custody of the two issues of marriage under the
care of the Respondent who is their mother and granted the Appellant a
right to visit their children. In respect of maintenance of children, the
trial court directed the parties to go to the juvenile court so that the
issue of maintenance could be resolved.
Being dissatisfied by the decision of the trial court, the Appellant
herein appealed to the District Court (the first appellate court) and
advanced three grounds of appeal as follows: -
1) That, the trial Magistrate erred in both facts and law ordering that
the issues should be placed under the Respondent while the
Respondent maliciously left home and abandoned them.
2) That, the trial Magistrate erred in both law and fact in ordering
that the house be divided equally while the Respondent has not
contributed whatsoever to the acquisition.
3) That, the trial Magistrate erred in both taw and fact retying on
incredible and insufficient evidence in balancing probabilities.
The first appellate court after hearing the appeal varied the trial
court's decision and ordered that the two children of marriage be placed
to the custody of their father who is the Appellant. In respect of division
of matrimonial house, the first appellate court varied the trial court's
finding and ordered the Respondent to only get 25% of the value of the
Page 2 of 14
matrimonial house as her share. It is from that decision this appeal is
preferred by the Appellant on the following grounds: -
1) That, the Appellate court erred in law and fact for ignoring that
the house is not matrimonial as it was acquired before
marriage.
2) That, the appellate court erred in law and fact for failure to
grant order that the Respondent ought to contribute to the
maintenance of children.
3) That, the appellate court erred in law and fact for ignoring that
the Appellant had three wives and that the division made will
affect the children.
4) That, the appellate court erred in law and fact for failure to
notice that the alleged loan was borrowed before marriage.
5) That, the judgment is bad in law for giving the Respondent
twenty-five percentage while she contributed nothing at all
acquisition of the alleged house.
When the matter was called for hearing the parties appeared in
person with no legal representation and orally submitted to the appeal.
Arguing in support of the appeal, the Appellant stated that, he started
building the house while living with his first wife Katarina Akonay and
finished it while living with his second wife Selina Sheudo and that, the
Respondent being the third wife found the house already built. He
added that the two wives left him in that house and he is living with all
Page 3 of 14
his children born by all wives and if the house is sold then the
Respondent's children share will be taken away.
Submitting on the second ground of maintenance of the children,
the Appellant stated that, the Respondent should be ordered to pay for
the half of the maintenance of the children as the children belongs both
to the father and the mother. On the third ground the Appellant argued
that, the 25 % of the share ordered to be given to the Respondent
should be given to the children of the Respondents who are living with
the Appellant.
Submitting on the issue of loan the Appellant stated that, he is not
aware of the loan taken by the Respondent as he was married to her on
22/12/2008 while the loan was taken by the Respondent on 01/07/2008
hence the loan was not used in construction of the Appellants house.
Submitting on the fifth ground the Appellant insisted that, the
Respondent had not contributed to the construction of the house hence
prays for this court to substitute the order of the division of the house
and order that the said share be directed to the Respondent's children.
The Respondent on the other hand submitted that, they had a
Christian marriage with the Appellant and it is not true that the
Page 4 of 14
Appellant had constructed a house before they got married. She insisted
that, the Appellant had a plot and they used the Respondent's money to
build a house.
Replying to the issue of maintenance of the children the
Respondent submitted that, she is paying school fees for one of their
children called Alfred Benedict Josephat studying in English medium
school and the same was disclosed during hearing before the trial court.
The Respondent submitted further that, she presented her
marriage certificates hence she is the only legal wife of the Appellant.
That, she wanted to take the children but the Appellant forced to stay
with them and that she only knows about her children and not any other
children. The Respondent insisted that, she took a loan while they were
living together with the Appellant thus, prays for this court to order for
division of matrimonial properties and she be given custody of her
children.
In a rejoinder submission the Appellant added that, he was ready
to pay school fees for the children only for the schools he could afford
but the Respondent decided to take the children to another school. He
claimed to have seven children and insisted that he built the house
before he got married to the Respondent. It is the Appellant's prayer
Page 5 of 14
that the court should not order for the division of matrimonial house as
it will affect the children.
Having gone through the lower court records and the submissions
by the parties, I revert to the determination of the grounds of appeal. In
doing so, the first, third, fourth and fifth grounds of appeal will be
discussed jointly as they relate to acquisition, contribution and division
of matrimonial properties, but the second ground will be discussed
separately as it relates to maintenance of children.
Stating with the first four grounds, it is the requirement of the law
under section 114 of the Law of Marriage Act that, the court has to
exercise powers to order division of matrimonial property during or
subsequent to the grant of a decree of divorce. Basically, matrimonial
properties include all properties acquired during the subsistence of
marriage or those acquired before but developed during the parties'
marriage. I am alive of the principle that, after determining that certain
properties are matrimonial properties, the court in course of ordering for
division has to also consider the extent of contribution for each part
before deciding the share each party is entitled.
In the present matter, the trial court made a decision that the
alleged house was a matrimonial house and that each party contributed
Page 6 of 14
towards the construction of the said house. It was made clear that, the
Appellant bought a plot of land to which the said house was built while
on the side of the Respondent contributed money for the construction of
the house. The trial court in considering the fact that the Respondent
took a loan which aided to the construction of the said house and in
considering other contribution as a wife to the Appellant and a mother
to Appellant's children ordered for equal distribution of the matrimonial
house.
In its decision, the first appellate court was in agreement with trial
court finding that the house in question was a matrimonial property.
However, the first Appellant court awarded 25% share of the
matrimonial house on account that the Appellant had other two wives
and children and that no proof that the loan claimed to be obtained by
the Respondent was used in the construction of the matrimonial house.
In this appeal, the Appellant is contesting any contribution from
the Respondent towards acquisition of the said house. I therefore opted
to re-evaluate the evidence adduced before the trial court to ascertain
as to whether the said house forms part of a matrimonial property or
not.
Page 7 of 14
It is in record and not disputed by the parties that, on 2/12/2008
the parties contracted a civil marriage followed by a Christian marriage
on 06/06/2015. It is again in evidence that, prior to the marriage
between the Appellant and the Respondent in year 1994 the Appellant
had bought a land. The evidence revels that, the house was constructed
in that land when the parties had already started to cohabit. It is the
evidence by the Appellant at page 28 of the trial court proceedings that
he continued constructing the house while living with the Appellant.
Reading page 28 of the typed trial court proceedings the Appellant
stated that,
" ... aliporudi kutoka Qaru tukaanza mawasiiiano na mdai na
kuoana mwaka 2008 ndoa ya kiserikali. Nikaendeiea kuishi nae
huku najenga, mdai akawa anachangia kidogo."
From the above quoted words, it is clear that the Appellant and
the Respondent constructed their matrimonial house while they were
legally married. With that evidence and in considering what amount to
matrimonial property, the said house fits in the definition of a
matrimonial property. Thus, the two courts below were right to regard
the house as a matrimonial house as it was acquired during the parties'
marriage and not before the marriage as alleged by the Appellant.
Page 8 of 14
Having determined that the house in question was a matrimonial
property, the question is what was the contribution of the parties toward
acquisition of the said property. It is the claim by the Appellant that, the
Respondent contributed nothing in the construction of the said house. It
is unfortunate that during his testimony at the trial court, the Appellant
himself admitted at page 26 of the typed proceedings that, the
Respondent was working meaning that he was earning money. The
Appellant also admitted at page 28 and 31 to 32 of the proceedings that
the Respondent contributed to the construction of the house. He
however claimed that the Respondents contribution was little. Part of
the Appellant's evidence at page 28 of the proceedings reads: -
"Nikaendelea kuishi nae huku najenga, mdai akawa anachangia
kidogo. Mwaka 2010 Kazi iliisha mdai akawa hana kazi nikaendelea
na ujenzi mdai akiwa mama wa nyumbani."
When the Appellant was answering some of the question put to
him, he admitted that in year 2008-2010 the Respondent had a part
time job and in year 2011 the Respondent was not working and stayed
home as house wife and by that time, there was ongoing construction of
their house. At page 32 the Appellant quantified the contribution of the
Page 9 of 14
Respondents contribution to be 10 bags of cement and Tshs. 300,000/=
bricks.
Respondent claimed before the trial court that she was working
and she obtained a loan that assisted them in buying the car and
construction of the house. The evidence of loan was discarded by the
first appellate court on account that the loan was obtained before the
Respondent married the Appellant the fact which I also support. Exhibit
XY1 a loan contract states that the said loan was taken by the
Respondent on 01/07/2008 but the parties contracted their civil
marriage on 02/12/2008. This proves that the loan was obtained before
marriage and no evidence proving that it was used in acquisition of
matrimonial properties.
I however find that, even without a proof of the loan, there is
ample evidence as shown above proving that the Respondent
contributed in the construction of the said house in two ways; one, she
was working and the Appellant admitted that she made some
contribution to the construction of the house, two, she was a wife and
mother of the children to the Appellant thus, she cannot be regarded as
an empty shell. In considering the land mark case of Bibie Mauridi Vs.
Mohamed Ibrahimu [1989] TLR 162 it is in my considered view that,
Page 10 of 14
there is evidence showing the Respondent's contribution towards
acquisition of matrimonial house. Now the question is whether 25%
awarded by the first appellate court to the Respondent reflect the extent
of her contribution.
The Respondent did not raise a counter appeal on the decision of
the first appellate court meaning that she was satisfied with such a
decision. During hearing of appeal, she only insisted that she
contributed in the acquisition of the property and prayed for an order for
division of the same. The Appellant on the other hand claimed that, the
first appellate court made its decision without considering that the
Appellant had three wives and the division will affect the children. To
him, it could be better if the 25% given to the Respondent to be left in
the ownership of her children who are living with the Appellant.
The first appellate in making its decision took into consideration
the evidence that the Respondent was the third wife and that the
Appellant resides with all children of the former wives and the
Respondent's children. I however do not agree with such reasoning for
the reasons that, apart from the claim by the Appellant that he had
customary marriage with his former two wives before he married the
Respondent, no evidence was presented by him before the trial court to
Page 11 of 14
prove such a claim. There is no dispute that the Appellant and the
Respondent officiated their civil marriage before they contracted a
Christian marriage which by its nature is a monogamous marriage. Thus,
the contention that the court was to regard other two wives while
ordering for division of properties is unwarranted.
As with regard to the children, the law only requires the court to
consider the welfare of the children but it does not impose the liability to
divide the matrimonial property to the children. In my view, the children
welfare was considered by the first appellate court and that is why the
award was varied from 50% to 25%. I therefore find that, the award of
25% of the matrimonial house issued by the first appellate was
reasonable and fair in considering also the Respondent's contribution.
I however find contradiction in the 1st appellate court's finding as
the magistrate went further by describing the Respondent's share as
three rooms of the house. He did not state if the 25% share is
equivalent to 3 rooms in the house thus raises the contradiction on what
exactly was awarded to the Respondent. To avoid an order which will be
hard to execute for being ambiguous, I find that the Respondent stand
entitled to 25% of the value of the matrimonial property.
Page 12 of 14
Regarding the second ground it is the contention by the Appellant
that the appellate court erred for failure to grant an order that the
Respondent ought to contribute to the maintenance of the children.
Reading the grounds raised by the Appellant at the first appellate court
there is no any ground in respect of the maintenance of the children
that was raised by the Appellant at the first appellate court.
It is a settled principle of law that, a second appellate court cannot
adjudicate on a matter which was not raised for determination before
the first appellate court. As pointed out above, the record of appeal of
the District Court of Karatu which is the first appellate court, the issue
for maintenance was not among the Appellant's three grounds of appeal
which he filed in that court. In the case of Abdul Athuman Vs.
Republic (2004) TLR 151 court discussed the issue on whether the
Court of Appeal may decide on a matter not raised in and decided by
the High Court on first appeal was raised. It was held that, the Court of
Appeal has no such jurisdiction. Similarly, the issue on maintenance
having not raised and adjudicated upon by the first appellate court, it
cannot be brought before this court on the argument that the first
appellate court filed to consider it. This ground of appeal is therefore
cannot stand.
Page 13 of 14
In the upshot, I allow the 4th ground but the rest of the grounds
are dismissed serve for the clarification given regarding the award on
percentage and number of rooms. The award of 75% to the Appellant
and 25% to the Respondent of the matrimonial house is therefore
maintained. Any of the party has the option to compensate the other
party to the extent awarded and retain the matrimonial house. In
considering that this is matrimonial matter, I make no order as to costs.
DATED at ARUSHA this 27th day of September, 2022.
