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 Page 1 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.
2. That, the resident magistrate erred in law and fact in
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
Page 2 of 14
3. That, the resident magistrate erred in law and fact in
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
Page 3 of 14
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
Page 4 of 14
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
Page 5 of 14
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
Page 6 of 14
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;
Page 7 of 14
(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'
Page 8 of 14
(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
Page 9 of 14
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-
Page 10 of 14
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
Page 11 of 14
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
Page 12 of 14
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^
Page 13 of 14
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.
Page 14 of 14