Director of Public Prosecutions vs Dominician Genand Rwezaura, Criminal Appeal no 76 of 2021

This case provide for objection proceedings in criminal cases after attachment of property of Accused person. Read the fact nad holding of the case and you may download at the end of this short synopsis.

This appeal emanates from application for objection of attachment and  sale of property via misc. application No 14 of 2019 which originally came  from criminal case no 230 of 2017. 

The background, albeit in brief, as discerned from the record is that,

1st respondent hereinabove was convicted in criminal case and ordered  among them to pay Tsh. 47,000,000/= to the complainant of that case. 

Upon failure to pay, the appellant filed an application for execution of the decree by way of attachment of 1st respondent’s house situated at Holili. The court Issued an order for attachment of the said property and appointed broker to accomplish the mission. 

In the middle of auction, the 2nd respondent showed up to object the attachment of that property for being a wife of the 1st respondent because she had joint effort over the property. The application for that objection was filed before court and the same pass through objection proceeding, and at the end the court determined in favour of the objector (2nd respondent). 

Aggrieved with that decision the appellant filed this appeal

on the following grounds:

i)That the trial court erred both in fact and law by ruling that the 2nd respondent has interest over the attached property; and

ii)That the trial Magistrate erred in law and facts by ruling that the attached property was acquired by joint efforts.

Therefore, it is my settled opinion that, the fact that the property 

was acquired during the time of marriage alone cannot prove the joint 

ownership nor matrimonial asset just in the status of existing of marriage. It is mandatory for one who allege that property acquired in subsistence of marriage in the name of one spouse alone to prove joint effort either in the time of acquisition or in developing it. 

From this observation I borrow leaf 

from the wordings of my brother Matuma, J. in the case of Happyness John vs Bavesh Hindocha & 2 Others [2022] TZHC 15016 (TANZLII)

when he held that;

“Therefore, the marriage is not there to mean; private ownership of properties by either spouse 

dies with the marriage and an automatic change of ownership thereof from either spouse to both 

spouses. Each spouse shall continue to enjoy legal rights in relation to his previous owned properties and even to acquire new one during the existence of the marriage. Such rights extend to disposition of property without necessarily requiring consent of the other spouse. There has been long standing misconception by the public at large and even some judicial staffs that once the marriage is 

established both spouses are owners of each and every property acquired by one of them.

 It is high time we stop such misconception. 

Matrimonial assets are not, and in fact unless the contributions by both spouses towards their acquisition and or their further developments 

are sufficiently proved.” 

Therefore, it was the duty of the 2nd respondent to rebut that presumption 

by bringing an evidence showing the property was jointly owned by them. 

Since there is no evidence from second respondent showing the same hence the issue of joint ownership remains unproved

Coming to the second issue whether the suit property is subject to 

attachment. The base of attachment of that property was through 

application for execution made under criminal procedure act. And since it 

was objected, therefore the alleged property to be sold must be proved that is free from any encumbrances as stated above. Although many were said in objection proceeding but unfortunately, I may say legally were not proved.