Emelise Itenda vs Johnson Mwambipile (DC Matrimonial Appeal No. 1/1996) [1999] TZHC 457 (16 September 1999)

•,, --! r· .,. ..: ·- ~ - ...... . IN THE HIGH COURT OF TAZAIA AT lVJBEYA DC, l'.J.TRI~ONIAL APPEAL ·-NO. 1/1996 ~From the decision of the District Court of Rungwe District at Tukuyu in 1'',atrimonial Cause No. 10 of 1995 .BEFORE: F. N. f':ATOGOLO - D.M.) EMELISE ITENDA •••••••••••••••••APPELLA.T VERSUS JOHNSO. !iM.Arl,aIPILE ••••••••••••• RESPONDENT JUDGE¥.ENT MWIPOPO, J. The appellant Emelise d/o Itenda is the divorced wife ~f the respondent Johnson s/o Kwambipile her ex husband. She has . . . . appealled against the District Court 1 s decision to award her only½ the Shs.100.000/= as value of the house built on heir joint efforts at Kyimo village on the 1st and 2nd grounds of the written memorandum of appeal filed and drawn by the learned ;r. • • Mwan¢ole her advocate who was later replaced by the learned Mr. , off ?Jkume Advocate whom she later on dispensedLfrom further repreen- ting iher- when he failed to attend the hearing.of this appeal

• prosecute~ on 8/12/98 and thereafter ~he · 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 Court: and . which was done on 25/5/9811/6/98 by CW.l 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-exaroination by both parties (the appellant and the respondent) his same evidence· and prepared valuation report 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

2 ~ fit's·t end 2nd grounds .of appeal generally .assessed · even when appear to, be ground:ful and L approached from the angle o~ the they appellants own evidence on oathLappear_ on the face of the record to be proper. The appellant as DW.l Emelise d/o Itenda testified that their matrimoial home was built for Shsl00,000/=• That is 1' 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 fresh propositions of the value. of same to about Shs.2,500,,000/= as put up by her then advocate the learned·IV:r~ Jvkumbe. The fresh additional evidence of the government -valuer has indicated th.et there are three wings of the house valued at:: Shs. 479, 000/ = for Wing A · tf 640,000/= for Wing B 238,000/= for Wing C Total Shs. 1,358,000/= as shown in Exhibi~ 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 eaeh other on 12/2/1996. -The appellant answer.ed on 25/5/68 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 built 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 resp.:.i:.::::..-L '"-uil t alone. 11 In the trial court arid+. +h~ h~~~~~~ of this appeal the appellant argued through his advocate the learned ~.f;r. l":kumoe that the en'tj.:re ••• /3 ' t r

3 - .. •building was built with ceE.ent brocks. cw.1, on additional evidence,testified that the main house after breaking through the wa111iaw only a mud-bricked main house and the front apartments were the only ones built of burnt bricks. This is the front out buiiding. 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 I s yersion that it was· only the mud-bricked main house of 5 rooms which was puiltduring the subsistence of .their joint say togethr as _a husband and wife. After they separated although they wre,still·husband arid wie riot yet divorced and after the di vor~.e it was only the respondent who was still keen and capable of making the extra developments on the font an_d rear buildings valued at ·Shs.640, 000/ = and 23a;ooO/=. 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 in the responden.t as a husband andLshe 'lived alone elsewhere As for the main building 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 way in its total value of.Shs.479,000/= & ½ = 238,500/= payable to the appellant by the respondent~ I therefore enhance the lower of court's assessmentL Shs.100,000/= pay off to the appellan~_to Shs.238,500/=. The respondent shall·pay off Shs.238,500/=·to the appellant and retain the entire house (mai...~ mud-built house Wing A). The other additional buildings are not subject ~o any ••• /4

4 division with the break up of the marriage which were built by the respondent 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 c9urt such as the sewing machine which was acquired through a present given to him in Europe while_study~ng there. There is no need of int€rfering with the lower .·court's decision in relation to all other properties divided by the learned r,11,r. Matogoro (D.M.). The respondent raised the issues of custody of the chil- d.ren which were given to the appellant so that now he an take C\J-stody of them himself since the "first" one born by the appellant is now over 10 years _old. This matter was not in issue in this appeal. The respondent is free to formally.ask the . l District Court to reverse its deC'ision so that now he gets custody of the two children. He shall petition for change of the children custody. Otherwise, this appeal is partly allowed and partly . ~ .· · disrP-issed as explained above.. Since the appellant ha's 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. \ I E.L.K. MWIPOPO '- Jt.Ji>GE 7./6/1999 • •• /5 I

LI

• 5 - COURT: I give them last chance to appear for Judgement on 16/7/99. Service to issue to them both afresh. up Ii they don't turnLJudgement will be delivered in their absence. .._ Date: 16/7/99 Coram: Hon. E.L.K. rriwipopo, J. Appellant: Absent Respondent: Absent B/C. Kosam. M\rHPOPO JUDGE 9/7/99 COURT: I cant adjourn this Judgement any longer. ' I deliver it in their absence. District Registrar to inform them accordingly • AT MBEYA · . 16TH SEPTEMBER, 1999 ELKM/JJM • L.K. MWIPOPO JUDGE