Beck Mwashibili vs Rhoida Mbwaga (PC Civil Appeal No. 15 of 1998) [1999] TZHC 345 (6 August 1999)

.. . . . M9SHI, J. IN· THE; I-IIGH COURT OF ·l'ANZANIA AT MBEYA (PC) CIVIL APPEAL NO. 15 OF 1998 (From the decision of Mbozi District Court at Vwawa in Civil Appeal Noo 10 of 1998 Before~ J .L. Lupenza - Senior District Magistrate) BECK MWASHIBILI U O O O O O O O O O o. ~ o o O O O O O O O APPELLANT Versus RHOIDA MBWAGA o.ooeooo••oo.o..-ooooooc•oo RESPONDENT · JUDGMENT This appeal arises from the decision of the district court. of lft>.qzi -on division of matrimonial assets. The parties were husband and wif~-m~ried in 1986. The marriage had four issues, and the respondent, Roida d/o:)fuwag~, was junior wife to two senior wives with •whom the appellant, Beck Kwhj.b.ilf, had children· as well,, adding up to ten children in all. The appellru:i-t, ·it woul.d appear, lived in same homestead with his pru-ents even after the_~~tiageso On 2.6._97 the respondent petitioned for divorce before te primary court of Igamba. The petition was allowed 6n 1.7.97 and the marriage ·-was dissolved. No appeal was preferred against the decree of divorce. On 22.7.97 the respondent presented her claim for division of-ma:trimonial assets before the primary court. ,-;he· made an oral presentation of th~. assets and backed it up with a list. 'I'he assets were: 6 heads. of cattle 'for cul.tivation; one cattle plough; one push cart; one radio~ one radio ·cassette; four office chairs; three small tables; three big tables; .two beds; an assortment of household items and utencils; and one house she was living in. Each party called two witnesses. 'l'hey were Patson Nzunda (PW1),. their daughter J eli ta d/o Beck· Mwashibili (PW2) , a brick-maker Simoni Mwazembe (Dt·J1) , and their neighbour and go-between (Hshenga) Christopher Mbuya (DW2)~ The primary·court unanimously found the claim not established and dismissed it. This decision aggrieved the respondent who preferred an appeal to the district court of l'1bozi. ocooooo /2

• ·--, .... --· .. --·•"•'"'-""I".- ~ ~ . -; '.'"' --· -~ ', '.!.'he district court admitted from the respondent a list of additional assets which had not been mentioned and canvassed at the trial. The additional assets were: One acre coffee farm; one bag and four tins of beans; One i'kihenge; 1 of · millet {ulezi); thirty mats (mikeka); and one gown and two pairs of khanga. The j district court allowed the appeal and ordered the appellant to give the respondent the following as her share of the assets 1 .. One she cow or shs.100,000/= the value of one cow. 2. Shs.15,000/= the value of one push cart (mkokoteni) as the cart will remain with the respondent (now appellant). 3. One radio cassette or shs_.35,000/= the value of .it. 4. 4 office chairs. -5._ ·2 big tables and 3 small tables or sh..9.30,000/=-the value of the tables. 6. · Q.l.household utencils eg plates, cups, spoons, bowls etc used by appellant (ne,;w respondent) during the mru:-r.iag~. 7o One bg of beans or shs.30,000/:;, -a.J.ue of the beans. 8. Shs.150,000/ from coffee farm as the farm will remain with the respondent (now the appel;I.ant). 9. 'rhe value of three roomed house used by appellant (now respondent) and value to be ascertained by valuer in the presence of both parties ad their village leaders.·· 10. _ One --kihenge'' of millet ·or·-shs.40,000/::.: as value of iL 11. 20 mats (mikeka) or shs.100,000/= as value of it as the exact value was not ascertained. 12. Shs.90,000/= as value of one cows plough~ 13~ dne gown and two pairs of khanga. •rhe appellant, quite expectedly, felt aggrieved and preferred this appeal through the services. of his learned advocate, Hr. Ifoise, who argue0. the appeal before me in the presence of the resporicient who resisted it herself., Mr. r-ibise preferred four grounds of appeal, which were! 1 o 'rhe learned Senior District Hagistrate erred on interfering with the llii.animous findings of fact made by the trial court for no justified reason.so 0006(100000(10 /3

3 .. The learned Senior District iagistrate erred on considering eyi_dence which does not form part of the proceedings of the trial court in his ,judgment on appeal. 3o The learned.Senior District Magistrate erred on distributing assets which do not exist-. 4. 'l'he decision of the district court is not supported by the evidence on record. I would, with respect, agree with Mr. Mbise that the unanimous decision of the trial court was impeached by the district court on insufficient and unjustified reasons. The power to divide matrimonial assets is derived from section 114(1) of the Law of Marriage Act 19'?1, hereinafter called .!h...!, which reads~- 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 asserts acquired by them during the marriage by .. ,their joint efforts or to order the sale of a..'1.y such assets and the division between the parties of the proceeds of sale. From the citation to, ruid the wording of, section 114(1) of the Act, the assets envisaged thereat must .f.s,.bl., be :natrimonial assets, and }!..Son.21:x,, they must have been acquired by them during the marriage, and j;h:!!.'§X, they must have been acquired by their joint efforts. In the first place the primary court found some of the assets ordered by the district court to be divided not matrimonial. assets. The cattle belonged to the father of the appellanL The go-between (D-12) spoke in supp0rt of the· appellant on this point. He said he used to hire the cattle from the appellant 1 s father to plough his farm. Ei'ven the respondent herself told the trial court; ••• ., ••••• tofali ulivuta na ng 1 ombe za baba yetu ••••••••• So the cattle were not· matrimonial assets of the parties. Again th€ coffee farm and the plough were property of the appellant I s fat.her (PW2). _Se_condly, the primary court fou'.!ld sorae of the assets ordered by tl1e district· court to be divided not to have been acquired by the parties during the marriageo The houses at the household were built before the respondent was rnarried by the appellant 'l'he brick-maker (DW1) :, c6hfirmed this point· in support of t.i.1e appella..>J.t. FW2 said two houses belong to oooooa•ooa•ooo• /4

4 - the senior wiveso Under section 114(3) of the Act, reference to assets acquired during a 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. This was not established to have been the case here. So the respondent was not entitled to a share in the houses. Thirdl-l:, the primary court found some of the assets ordered by the district court to be divided not to have been acquired by joint efforts of the parties. It was not established that the .respondent had made any direct contribution in the acquiring of the push cart t the :i;-adio, the radio cassette, the chairs, the tables and the beans. She was a housewife. On the authority of the Court of Appeal decision in BIHA~!j10HAJ'i'@P .flJ.i..lJl (1983) T.L.R. 32, performance of domestic duties by a housewife counts .in -the acquisition of matrimonial assets. But the performance of the respondent as· a whole was most unsatisfactory. She had left the matrimonial house to stay with he:r mother for a long time before the divorce. 'r.hat was what the appel::).ant and their marriage go,,.between (DW2 said. That claim was uncontro- verted. Not only that. The respondent left with all household items and utencils., rnke alisomba DW2 said~ ••• .... mdai ,akahitaj}- ,imtoka~~da kukaa kwa mama...1.ake.':-1.:. ... , ...... ;;._vit tu ••••• •.• • • D1."J2 told HJ1 about this and they, among others, went to the house of th.Ee!· :appellant where they did not find any household item. So the household iems o.rdered by the district court to go to the respondent were not there. 'rhe respondent also took away with her to her r:10ther ten bags of ulezi, ten sacks of .. groundnuts a.'1.d beans. Bhe was seen doing so by D;J2 who registered a report with their chairman. D\r/2 said niliwah~ kukamata, ylezi gunia ')Q_ nikampele)<k.va. mwen.xkiti,isema,_atarudisha_lakini ha.¼:urudisha_wizi wa karang. e_unia 1<2_ lllahag_e ~ alikuwa. anoIE...bkwen;re Juryshi _ kubw'.:- a.J-J.kuwa ~ ana_pi tc1: nazru.igu shamba 00000000 o And worse, the respondent was lazy and would not worko PW1 said he had not seen her cultivating the coffee shnba of appellant's father with the appellanto DW2 said it was the appellant and his senior wives who were cultivating the shambas of the appellant's father for their food. DW2 added: 0 0 o O 0 huyu ma..(res_pcmdent)_ kazi)1a.taki kufanya alikuwa .. anashinda t,wa .mama_yal~~-- uk~~: 000000,ooooocoooo /5

.. .:. .• 5 - The trial court found PW1 and DW2 credible witnesses and I am satisfied that finding could not be faulted in the circumstances. The district court, quite obviously, was influenced in its decision by extraneous matters which had not featured anywhere in the trial fr division of matrimonial assetso 'l'he first case in point was the list of the additional assets. It was not evidence properly before the district court. It was thus inadmissible. Secondly, the district court in its appellate judgment remarked that the appellant had been rude and hostile to the respondent for so long, and that the appel;tantwas bent upon teaching the respondent a lesson (h.-ukomoa) and made them the bas_:i,s for the finding that the matrimonial assets he ordered their division were there.· ·But these matters did not feature anywhere in the proceedings for division of mtiim9μial assets before the trial court. In point of principle, an appellate court would interfere with.findings o.ffact made by a trial court on very re occasions. An allowance must always be made for the fact that a trial court had seen and heard the parties and their witnesses giving evidence while an appellate court has not. illl appellate court would be entitled to interfere where, for instance, it is sho'ln that the trial court acted on a wrong principle or that it omitted to consider material evidence or that it considered irrelevant matters or that' it erred in its approach in the evaluation of the evidence adduced or that the findings of fact crumot Otherv1ise be ra.tiorially sup!?orted. In this case, the findings of fact made by the primary court could not be ide.ntified with MJ.y of the foregoing, and I am satisfied that the district court ivas:not entitled to interfere with its decision which was, in my view, justified on the_'facts and sound in law. I accordingly allow the appeal, quash the district court:s judgmerit, se aside hereby restore the judgment of the primary cow:-t. B.P. MOSHI JUOOE.