ELIAS ABDALLAH BUNGA vs SALMA HASANI MJENGERA (PC CIVIL APPEAL NO. 66 OF 2022) [2023] TZHC 66 (3 July 2023)

Key Facts

Issues

• The court considered the custody of four children, with the Appellant seeking custody and the Respondent arguing for her. The trial court initially placed the three older children with the Appellant and the youngest with the Respondent. The appellate court ordered the trial court to reassess the children's wishes. The Appellant argued that the trial court's decision was based on age without considering other factors like the children's preferences and customs. The Respondent emphasized her role as a primary caregiver and the importance of the children's independent wishes. The court determined that the children's opinions should be taken into account, leading to the case being sent back for further consideration.
• The court addressed the division of various properties: the Kipunguni house, Kivule house, two Chanika plots (one with a milling machine and one with chicken coops), and a motor vehicle. The Appellant claimed ownership of the Kipunguni house, arguing it was acquired before marriage, while the Respondent contended it was a matrimonial asset. The Kivule house was deemed matrimonial property, with the trial court awarding 75% to the Appellant and 25% to the Respondent. The Chanika plots were disputed, with the Respondent claiming inheritance for one plot and the Appellant asserting joint development. The car was also a point of contention, with the Appellant claiming it as his separate property.

Holdings

• Sixth ground dismissed; car divided equally.
• Fifth ground dismissed; custody matter remanded.
• Second ground dismissed; house is matrimonial property.
• First ground dismissed for inconsistent testimony.
• Third and fourth grounds allowed to specified shares.

Remedies

• The appeal is dismissed in part, with no orders as to costs due to the nature of the matter.
• The court allows the third ground of appeal, ordering the valuation and division of the first Chanika plot. The plot, inherited by the Respondent but developed jointly, is divided 60% to the Respondent and 40% to the Appellant.
• The court allows the fourth ground of appeal, dividing the second Chanika plot (purchased by the Appellant) 70% to the Appellant and 30% to the Respondent, recognizing the Respondent's contribution to its acquisition.
• The court dismisses the fifth ground of appeal, directing the trial court to reassess child custody by taking the children's wishes into account. The original decision not to consider their opinions is overturned, ensuring their best interests are prioritized.
• The court dismisses the second ground of appeal, upholding the appellate court's decision to grant the Kivule house to the Respondent. The house, acquired during the marriage with the Respondent's contribution, is awarded to her.
• The court dismisses the first ground of appeal, affirming the appellate court's decision that the Kipunguni B house is the Appellant's sole property, acquired in 2008 prior to the December 2008 marriage. The house is granted to the Appellant.
• The court dismisses the sixth ground of appeal, affirming the car as a matrimonial property. The vehicle is to be valued, and the proceeds divided equally between the Appellant and Respondent.

Legal Principles

• The court relied on section 114(3) of the Law of Marriage Act (LMA) to determine that property acquired during marriage through joint efforts is matrimonial and subject to division. Additionally, under section 125(2) LMA, the court emphasized the importance of considering the children's wishes and their best interests in custody decisions, referencing case law like Sajjad Ibrahim Dharamsi and Rose Ngonyani.
• Under Order XXXIX Rule 27 of the Civil Procedure Code, the court held that parties in an appeal cannot introduce new evidence not previously admitted in the trial court. This principle was applied to dismiss the Appellant's and Respondent's new arguments and evidence as inadmissible.
• The court applied the principle of res judicata, stating that new issues not addressed in the trial or first appellate court could not be entertained at this stage. This led to the dismissal of certain grounds of appeal as they introduced new matters.
• The court applied the principle of burden of proof, determining that the Appellant did not adequately substantiate his claims regarding the sole ownership of the Kipunguni house and the car. The Appellant's inconsistent testimony and lack of supporting evidence led the court to dismiss his grounds of appeal as unmeritorious.

Precedent Name

• Bi Hawa Mohamed v. Ally Seif
• Sajjad Ibrahim Dharamsi and Ally Gulambas v. Shabira Gulambas Nathan
• Amos Masasi v. The Republic
• Rose Ngonyani v. Chile Ngonyani

Cited Statute

• Law of Marriage Act
• Law of Evidence Act

Judge Name

Passage Text

• The court allowed the third and fourth grounds of appeal, ordering the Chanika plots to be divided at 60% to the Respondent and 40% to the Appellant for the first plot, and 70% to the Appellant and 30% to the Respondent for the second plot. The court reasoned that the first plot, though inherited by the Respondent, was improved through joint efforts, making it subject to division.
• The court held that the Kipunguni house is a matrimonial property as there is no evidence to prove it was acquired before marriage by the Appellant. The learned magistrate in the first appellate court found that the Appellant's testimony was inconsistent with his submissions, and the evidence showed the Respondent contributed to its acquisition.
• The court dismissed the Appellant's claim that the car is his sole property, ruling it a matrimonial asset requiring equal division. The court found no evidence of individual contributions to the car's acquisition and emphasized the legal principle that joint efforts during marriage determine matrimonial property status.