Emelise Itenda vs Johnson Mwabipile (Dc. Matrimonial Appeal No. 1/1996) [1999] TZHC 46 (16 September 1999)

IN 11HE HIGH COURT OF TA..ZA..IA AT IV;BEYA DC. l';.ATRirt-ONIAL APPEAL ·No. 1/1996 (From the decision of the District Court of Rungwe District at Tukuyu in :f'.atrimonial Cause No. 10 of 1995 BEFORE: . F. N. JV:ATOGOLO - D. JV!. ) BMELISE ITENDA •••••••••••••••••iPELLA..T VERSUS JOHNSON J ✓ MAKi3IPILE ••••••••••••• RESPONDBNT JUDGE¥ENT IfJWIPOPO, J. The appellant Emelise d/o Itenda is the divorced wife ,t the_ respondent Johnson s/o Vwambipile her ex husband. She has appealled against the District Court 1 s decision to award her only¼ the Shs.100,000/= as value ·of the house built oa -.heir joint efforts at Kyimo village on the 1st and 2nd grounds of th written memorandum of appeal filed and drawn by the learned Mr. ?'iwangole her· advocate who was· later :replaced· by• the learned Mr. . . off fv':kumbe Advocate whom she later on dispensedLfrom further represen- ting her when he failed to attend the hearing of this appeal · ,:. · prosecuted on 812/98 and· thereafter she L . the appeal herself. After the appeal had been heard I directed further District evidence to be taken by the trial court of Rungwe L Cour-r _ and ~ which was done on 25/5/98Ll/6/98 by cw.1 Gwamaka s/o Asumbwile the Assistant Senior Government valuer of Mbeya Region. Since his evidence was taken on oath in the presence of and under ~- cross-exaroin ation by both parties (the appellant and the respondent) his same evidence and prepared valuation rep_ort shall be included in the evidence of this case and be considered by this court on its merits and demerits in writing this judgement • • • •/2

..

• C. ... The- first and 2nd grounds of appeal generall.y .assessed . even when appear to~ be groundful and j_ approached from the angle o~ the they appellants own evidence on oathLappear _, on the face of the record to be proper. The appellant as DWl Emelise d/o Itenda testified I that their matrimonial home ·was built for Shs.100,000/=. That is why the trial court accepted.this testimony as truthful·and of the appreciated value assessed her ½Lshare of the house at Shs.100,000/= only. Here and she abandoned her given value _of the houseLbrought up fres propositions of the value of same to about Shs.2,500,000/= as put up by her then advocate the .learned lv:r. JVkumbe. The fresh . . addi t.ional evidence of the government valuer has indicated that there are three wings of the house. valued at:: , Shs. 479, 000/ = for Wing A · " 640,000/= for Wing B " 238,000/= for Wing C Total Shs. 1, 358, 000/ = as shown in Ex.hi bit C.. I hold that these valuations of the three winged .house represent a fair market value of the house now in June, 1998. The respondent has contended that they divorced each other on 12/2/1996. The appellant answered on 25/5/,8 that no house was built by the respondent alone in these words;- "There is no any house built by the respondent alone. The main_house and the near house were built at the same time. We b1-,1ilt them together. The front apartment was built later, but I also participated to build it. They have to be valued together. There is no house the respondc::.-: ½uil t alone. u In the trial court and at t,h~ hPAri~g of this appeal the appellant argued through his advocate the learned Mr. IV;kumbe that the entire

....

• 3 - o..iUd.ing w-a.,. bu:i.l t with cen;ent brooks. CW.l,on additional ,' : .· .. evidence,testified that the main house.after breaking throug~ the he . wall.Lsaw only a mud-bricked main house and the front apartments were the only ones built of bu_rnt bricks. This is the front out bull)ting-. · · The appellant confessed in her above quoted statement that it was built later on. Since they separated in 1995 although the divorce was granted in February 1996 it is obvious that she did not help to build the extended portion of the house which are built in burnt bricks. I accept the respondent's _version that it was onlr te mud-bricked. main house of 5 rooms which was built during the subsistence of their-joint stay together as a husband and wite. After they separated although they were still husband and wife not yet divorced and after the divore it was only the respondnt who was still keen and capable of making the extra developments on the front and rear buildings valued at Shs.640,000/= and 238,000/=. These portions couldn't have been jointly acquired through their joint efforts for the appellant was re-married to .. her ulokole (fundamentalist) religeous sect and lost interest so ~ ,tte respondent as a husband andLshe lived alone elsewhere. As for the main builing marked Wing A in the valuer's report it was jointly acquired and built during their active subsistence of their marriage which ought to be split half w~y in its total value of Shs.479;000/= & ½ = 238,500/= payable to the appellant by the respondent. I therefore enhance the iower of court's assessmentL Shs.100,000/== p,ay off to the appellant to · Shs.238,500/=. The respondent shall pay off Shs.238,500/=.:te> .. the appellant and retain the entire house (main mud-built,house 'Wing A). The other ad.di tional buildings are not subject to any ••• /4

i division with the break up of the marriage which were built by the re,spondent alone. He shall retain them as his own sweat's proceed, They are his own property lawfully acquired by him. The other movable properties were properly dealt with by the trial court such as the sewing machine which was acquired through a present given to him in Europe while studying there. There is no need of interfering with the lower court's decision in relation to all other properties divided by the learned Mr. Matogoro (D.M.). The respondent raised th~ issues of custody of the ehil• dren which were given to the appellant so that now he can take custody of them himself since the "first" one born by the .appellant is now over 10 years old. Th:i,s matter was not.in issue in this appeal. 'I'he respondent is ,free to formally c1.sk the District Court to reverse.its deision so that now he gets custody of the two children. He shall petition for change of the children .ousdy. Otherwise, this appeal is partly allowed and parly dismissed as explained above. Since-thf!! appellant has worn hardly half way each party sall bear his own costs. Date: 9 /7 /99 Coram: Hon. E.L.K. Mwipopo, J. Appellant: Absent ,Respondent: Absent B/C. Kosam. ft \ E. L. K. JVIWIPOPO JUDGE 7./6/1999 • •• /5

j COURT:, I give th.em 1.ast chance to appear for Judgement on 16/7/99. Service to issue to them both afresh. up If they __ don't turnLJudgement will be delivered in their absence~ .... Date: 16/7 /99 E.L.K. MWIPOPO JUDGE 9/7/99 Coram: Hon. E.L.K. l'fiwipopo, J. Appellant: Absent Respondent: Absent · B/c: Kosam. COURT: I cant adjourn this Judgement any longer. ' I deliver it in their absence. District Registrar to inform them accordingly • AT· r-'iBEYA ··• 16TH SEPTEViBER 1 1999 ELKM/JJM • L. K. MVHPOPO JUDGE