20171013 TZHC Dar es Salaam

IN THE UNITED REPUBLIC OF TANZANIA THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 251 OF 2016 (Original from Matrimonial Cause No. 34 of 2014 in Temeke District Court} ~--., AHMED ABUBAKAR KAHAMBA...................... ..• PPELLANT VERSUS The appellant, cha Ilenge th.: For < stan· 1 g the gist of this appeal, it is necessary to '• giv -~ . .. .. round. The appellant and respondent were '~~} •,<,<,,•;., '.~:~ ·-·,,, husbana: ·who started to cohabit in 1988 and in 1990 they ·· arriage through a Civil Marriage and later on in 1996 the respondent was solemnized and contracted an Islamic Marriage. They were blessed with two issues namely, Abubakar Ahmed Kahamba, who was born in 1989 and Hatman Ahmed Kahamba, born in 1993. They were living in a rented room at Keko Magurumbasi, but later moved to Civil Appeal No. 251/2D16 . ~ - K Somejl J 1 the respondent's house. However, the respondent's house was later sold. The petitioner is a businesswoman and was also employed by Print Park as a secretary. The appellant is also a businessman under the informal sector. The respondent testified that, in 1991 they jointly bought a plot at Kurasini from one Mariam Hilali and jointly constru~~~, a hou$e. Though, this fact was disputed by the appellant that, t ~ ,"_, ought by his father from one Mariam Hilali who testified be ! - Wl that she sold the house to the appellant e sale agreement which was admitted the said fact. 4'$;,i However, the sale agreement~: I court to be incomplete and not ablei~- v -.~$~ns n, as there was no . iW. ~~t- . signature of the allegec!ltpuyer -.- :-,. _ seller did not remember his & v:.:~ . ~. name. (See page Jf!f1:·-~ page 7- third paragraph of the trial court' ~-·~. ~i~the said house was subjected to probate •;,,1/ and the estate of the appellant's late father, eir -~ieceived their shares. That, the appellant's share ~o0/=. In 1996 the marriage started to have some -- ·isunderstanding, as the appellant among others, had extra-marital affairs with domestic servant who he impregnated and started harassing and beating the appellant in several occasions. In 1998 the appellate decided to chase the respondent from the matrimonial home, where she left with the children, Ahmad- eighty (8) years old and Civil Appeal No. 251/2016 2 Hatman - five (5} years old. From that time, the respondent maintained the children alone with difficulties and without support from the appellant. That,· in 2002 the respondent was terminated from her employment, but she continued to struggle and strive to maintain her two children, as the appellant did not bother to assist her. The misunderstanding between the parties was reporta1,• to the Conciliation Board who tried to solve the matter, but witho t succe · Thus the respondent decided to institute a ca ;.> Before the trial court and in her t,. 2014, the respondent prayed {a) Divorce; {b) Equal divi - ( One house with Refere#t '102 located at Shimo la ,~0 ·~:i!~ -....:;:~,,,., · e maintenance of the two children from < ' -~: heir mt,jprity age at the tune of Tshs.100,000/ per {e) Any other relief {s) the court may deem fit andJust to grant. After a full trial the trial court was of the view that, the marriage between the appellant and respondent had irreparably broken down and granted a divorce thereto. As for the issue of division of the matrimonial Civil Appeal No. 251/2016 3 property (house) the trial court as per the testimonies of PW1 and PW3 found that the house at Kurasini was matrimonial home and the respondent had contributed to its improvement and ordered her to be compensated by the appellant at the tune of Tshs. 15,000,000/=. {See pages 7 - 9 of the trial court's Judgement). On the issue of maintenance of the children, the trial court ordered the ap1t: lant to pay Tshs, 15,000,000/= as arrears for the maintenanc Being aggrieved by that decision, the a hich consisted the following two (2) grounds and fact to:- (1) (2) awa,.t;f!/l#llf'i: e respondent herein as arrears , s ~ "v:·~>~ clF<;\f!Jto children from 1998 up to when they '<rlty. :!:%Appeal, the appellant enjoyed services of Mr. 'j;•'. •x -~ Ms. Shamima Hizza, the learned Counsel, while Mr. ed Counsel represented the respondent. Arguing for the 1st ground of Appeal Mr. Salum referred to page 8 of the trial court's judgement and submitted that, Section 114 of the Law of Marriage Act gives courts power to divide the matrimonial properties after the issuance of the divorce. He said, it was the duty of the trial Civil Appeal No. 251/2016 ~=?!tKSam,jl,J 4 court to first establish if there were matrimonial properties and distribute the same as to the extent of contribution of each party. He challenged that, the trial court instead of complying with these requirements of the law it ordered compensation which according to Mr. Salum was not provided for in the Law of Marriage Act. ~~~ He argued further that, since the house in question"~as the property of the appellant's father, it was wrong for the trf· ·. court t . rder that the ";:~ respondent be compensated on the sarpe. He'<~ . fact ~~ that the parties lived in that house cannat· :, e con they are the owners of that hous·. Bihawa Mohamed Vs All . 2 and Eliester Philemon Lipangahel~j'1f*bau •:, Appeal No. 139 of 2002, High Court Dalfes ~i._·J~{~:- · , v.~Jlleported) and argued that ~ '~Ji' authorities obtaine se case · re relevant only when there are Court to uphold the decision of xtent"'tillat, the house in question was the property . ~ ~00:~ilhat the order of compensation issued was As re . round of the appeal on the issue of maintenance of the chil -alum cited section 135 read together with section 124 of the Law of Marriage Act, which are on how one can recover arrears for the maintenance. He said it is the requirement of the law that, there must be an agreement which is not more than three (3) years. He said, in the case before the court there was no any agreement between the Civil Appeal No. 251/2016 ~?. i, K. Sumejl,J 5 parties. He said even the application was out of time, because the claim was from 1998 and there was no any evidence that, by that time, the said children were entitled to be paid Tshs. 15,000,000/=. He thus prayed the Court to set aside the trial court's decision. In response Mr. Kapilima argued for the 1st ground that, the trial court ~t:, . recognized the contribution of the respondent an~wanted her to be compensated as per section 114 (2) of the thus noted that the first ground of the appeal.,, has .~, nd On the 2 ground of the appeal Magistrate was correct to awa_"' ;@; maintenance of the children. He conten a~❖y, ·, nt awarded to the respondent is on the lo~~ e ~~t i!pis Court to increase the same. He strenu ~ , ~.m:9t, ~\i} parent need to be told to ildren, the appellant had a legal . -:stchil-. ,,~sin· · 98, when he chased hi_s wife from ~~ :~ the ma,t .. oni '.ij -~t;:,. · : Ka'~t~ma argued further that, by that time the chi11r: n w r~. _t1 -~\~{mg -t:hd the respondent maintained them with diffic!~¾ties with· .:t a~t~}support from the appellant. To buttress his ~4l .,~ , positio'hi{~~- cite. d_~ctions, 2, 91 and 129 of the Law of the Marriage Act. ~is;t ,;,w· He finally dr-~1:I the issue of requirement of an agreement as claimed by Mr. Salum. He said there was no need of any agreement, as the appellant had a legal duty to maintain his children. In rejoinder submission, Mr. Salum argued that section 114 (2)(b) of the Law of Marriage Act, cited by Mr. Kapilima is on the division of CivH Appeal No. 251/2016 6 -4,. R. K. Some;;,] matrimonial assets jointly acquired by the parties, but not on compensation. He said if the respondent wanted to be paid compensation she could have resorted on the other laws and forum, but not the Law of Marriage Act. On the issue of maintenance he reiterated what he had submitted in chief. Having digested the parties' submissions, the pleadi~~L and the record of the case, it is clear to me that, the appelf:,, does contest the conclusion reached by the trial Magist~ate th ·, fween t@::,, them had irretrievably broken down anc}\~rant ereto . .z:;,:, The main issue which is being cha fr~?:::::"'.· t is the division f& ' of the disputed house and an a\~ard o, of the children. As sue . .m 'v,•~:;;. i~, ~z mind that, the main issue -ij~~ for determination at thft the trial court correctly ,../ " .f.""· . d v1,t.,e 1ss.~• ;;w,., ueterm1ne (, matrimonial assets and the ., Mr. arg ·~ti that, the issue of compensation is not prov(' .w of Marriage Act. Likewise on the issue of main lted the decision of the trial court that, for an order of payme (ears for maintenance to be awarded there should be prior agreement on the same and he cited section 114 and 124 of the Marriage Act. I do appreciate the argument of Mr. Salum that indeed Section 114 ~~1(:~P.:~N:h:,~:: of Marriage Act is on division o~:A4~~~~ :::.:: 7 jointly acquired by the parties and distribution of the same to the extent of contributions made by each party. It is therefore clear that it was wrong for the trial Magistrate to categorize the same as compensation paid in normal civil suits. However, on the issue of maintenance of the issue of marriage, I have ;fJ_, noted that Mr. Salum had cited Section 124 of the·f~. of Marriage Act, with due respect to Mr. Salum the sai;; ·. ction · ...als with the maintenance of spouse(s), (See section~ 115 -1\i ,.,,!friage ... ~~~t>y -~,· Sections · f the Law of Child After pain cision of the trial court I wish to sta :J appeal, and it is a settled law in this ce, te court has the duty to re-evaluate the n · ~:jective manner and arrive at its own findings of fact, i I have decided to thorough pursue this duty and e evidence tendered and found in trial court's record. As for the first ground of the appeal, in order to determine the issue of division of the disputed house is, it is prudent to establish whether the house in qu~stion is a matrimonial house/home or not The· 1aw is very : ~:P: ~N:.~::::~~anatory on this matter. Under Secti~£:2.~;, ~as:,:: & 8 Marriage Act, (supra) the definition of Matrimonial home is provided to mean "the building or part of a building in which the husband and wife ordinarily reside together. .. " It is also on record that, the appellant and the respondent jointly purchased the disputed plot in 1991 and constructed a house thereon. It is also on record that, the appellant and the respondent had since lived in that house as hl($JJand and wife. This fact has been proved by the testimonies 'PWl -,j~~ ~ife of the appellant) and PW3 (the eldest son of the ap~~Jta- . I , Ii , ·,0 the '.~ fact that the appellant had since dispu~~,:, this flt:. , fa(. he trial ,~ 1 court he testified that, the disputeqlj·· use vf<·;,bou ··f· by his the sale document ·name of the person she contracted ·,, (t_~;~- . ·s'tl:um, I find the said sale transaction to be invalid . . . -~ It is h~jerative ,, l@r me to stress that, any legal binding contractual relations · e~~§; . parties in this country is regulated by the law of contract of Tanzania which has been codified in the Law of Contract Act, Cap 345 [R.E 2002]. Section 2(1) (b) (h) of the Act, defines a contract as an agreement enforceable by law. Section 10 provides that all agreements are contract if they are made by the free consent of the : ~~:: ~N~~:~: to contract for a l:wful consideratio;pt~ : ::::~: object and not hereby expressly declared to be void. Free consent is further defined under Section 14 of the same Act. Going by the above principles of the law of contract, it is obvious that no one can contract to himself or herself. Thus, the sale, agreement submitted by the appellant is not a contract in law and in whatever aspects the same cannot be enforceable in law. is why the trial court had since found the same to be invali i · d not the said sale transaction, as there was no signcf It is therefore my respectful view_ ~hat, ,,,:?ur, 1' ~;agreement was submitted for the purposes o '· the"9:frt. po· nt her rights and &- entitlements in the disputed hod\\_ I have as well noted tha ijified that, the said house had since subject~: \ 9 ,:i,, ., •,:; Jstration matters under the < ·W:;.:;: , "~..::>,c, ta ·~•:n·• · :i:ant's ) late father. The house was ~1,5. :'l12a1 if., , . sation was paid to all entitled heirs, ,,.ied a share at the tune of Tshs. , ain t , fact was never substantiated with concrete ;·~.. evide~ce, such ;;,,.,_ the :rrobate case number and the name of the court ~~~ ~:~&_ ~~¥. ~~ tried th, atter. ~r,< ere is nothing in the trial court's record tendered to prove this f . ·· he same remained to be hearsay and mere allegations which were inadmissible in law. It is therefore my considered view that, the evidence given on this matter and the so called sale agreement produced before the trial court had an ill intention and bad motives Civil Appeal No. 251/2016 1,qn: .................... R. K. Sameji,J 10 geared to deprive the respondent her rights and entitlement in the matrimonial assets. It is also on record that, the appellant and the respondent, though started their marriage life elsewhere renting, but in 1991 they purchased the plot in kurasini and constructed the disputed house. It is also on record that, the respondent was an employee whi~:, ned a salary and also doing business. She had since testified er salaries .,., and money obtained from her business Jo c ase of ;;;~ the plot and also construction of the ho~'?f~J~ s been demolished by the authorities the(,· . posed to be paid part of her contributions on the~~- ' < ,;:,.,. ' ::& ·~s,. It has also featured ~--:::<ti~µt, ~t~ main source of the misunderstandings~ ,a~ong others, extra marital affairs, cruel / 9 'ti .-;:::~., ndent by the appellant. These were evidetii,,;.,,. ~\P . must say that all· such acts, be · ·~~f· ~ .,,~:,.~ ,;'7 · -~w~ appellant towards the respondent are inh • :.'< ptable as they are against human rights. y to Article 12 and 24 of the Constitution of the ~ United R~~<1:, anzania, 1977. Furthermore, it is prudent to note that, Tanzania has ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women, (CEDAW) 1 and the Protocol to the African Charter on Human 1 G.A. res. 34/180, 34 U.N GAOR Supp. (No. 46) at 193, U.N Doc.A/34/46 Entered into force in Septemberl9, 1985, available at http://www.unhchr.ch/htm/menu3/b/e/icedaw.htm. Civil Appeal No. 251/2016 ~-----R.K.Sam,ji,J 11 and Peoples' Rights on the Rights of Women in Africa 2 Article 7 of the Maputo Protocol, provides clearly that "in case of separation/ divorce or annulment of marriage/ women and men shall have the right to an equitable sharing of the joint property deriving from the marriage'. [Emphasis is added]. In addition, see also Article 16 of the CEDAW, (supra). In the circumstance and taking into accou d in Kurasini was acquired during the subsist~nce o orts of the parties it cannot be argued toda . -faat tn contributed to the acquisitio . as ~:.J,i:~\ be noted further that, in all those years of ·-.)tnt herein without hesitation had used all affection to protect and caring for th el ., sting and believing the appellant, tha ere for the welfare and future ote that, she ended up being exhausted. ;, I a •,;J~missibn by the appellant that, the said house ·~¼, . -~«-~ belo .her ~:~Considering that this fact was never proved to •·· rd, and as discussed elsewhere in this Judgement, such allegations had an ill and bad motives geared to deprive the respondent's rights and her entitlements on the division of the said 2 nd This was adopted by the 2 Ordinary Session of the Assembly of the African Union, in Maputo July 11, 2003 and entered into force in November 25, 2005. Tanzania has ratified the same on March 8, 2007. See information available at http://wwwl.umn.edu/humanrts/africa/protocol-women2003.html Civil Appeal No. 251/2016 12 matrimonial asset, the thing which is unacceptable in law and human rights arena. I thus highly persuaded and guided by the principles enunciated by the Court of Appeal in Bi Hawa Mohamedi v Ally Seif (1983) TLR 32 (CA) and also the High Court in Bibie Maulid Vs. Mohamed Brahim (1989) (HC) TLR 162. That in determining contribution to ·, ·,. s the acquisition of matrimonial or family assets every c. decided in accordance with its peculiar facts and~;cum -. , . in Victoria Sigala v Nolasco Kilasi PC Matlit onia '> . HC Iringa (unreported), Shangali J · ·e 8 <~!he judgment and .. ~ I quote: "Indeed, there is .ffl, deciding on the amount of contributi ~ •'E!trimonial assets. Where the matri · c ,i. Jed during the happy days of :>.;7 sub an in the Joint efforts of the spouses -;ing one spouse to give evidence to show ~- -iif/her contribution. The distribution of such assets ',;~~ ,atica?!y proceed in equal terms'. ' of Yokobeti Simon Sanga Vs Yohana Sanga, Matrimonial Appeal No. 1 of 2010, High Court Iringa Registry (unreported) where Uzia. J, as he then was decided that:- ''it is also my considered view that the appellant is entitled to the share of the matrimonial propertie~ to be specific the appellant Civil Appeal No. 251/2016 Qlin\~ ......... R. K. Sameji,J 13 . deserves 50% of all matrimonial properties for the entire period of the life of their marriage and the distribution is on 50% of the market value... '' Considering the above precedents and decisions, and taking into account that the disputed house was jointly acquired and constructed, I have no doubt that justice demands all parties to be awf?tt,~d with equitable "':Z:l:· shares thereto. I therefore concur with the sut"', · sion dRMr. Kapilima on this matter. PurseffJtifr:Jf·_"· ec l s · '. , tAe Law of the Marriage Act, (supra) and Se~ 26 of ff"_ .la , ,the Child Act, (supra), the appellant is required by theiJaw to matt:ttain his children and pay for school fees and other ·• ";· · •::,;J;,,,. ~m~i 3r,,::; necessitie . "'~t~e sake of clarity I have endeavored to reproduce Section 129 of the Law of Marriage Act, (supra) here below:- · " ... it shall be the duty of a man to maintain his children whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, Ci.vil Appeal No. 251/2016 S ( g ~ . R. K Sameji,J 14 • 4f food and education as may be reasonable having regard to his means and station in life or by paying the costs thereof' [Emphasis supplied]. Therefore and pursuant to these provisions of the law, the appellant has a legal duty to maintain his children without any further justification. In the circumstances and for the foregoing reasons I have endeavored to provide, the appeal is partly allowed. I partly uphol~· he decision of the District Court on the issue of dissolution oft ranting of the divorce and the custody of the children1 ~n of f.J:,:. > ;r matrimonial house, and maintenance of tfft> .hildr .: . t:- (i) The appellant and tti\ '" titled to equal ~'::::~- shares in the matit~gni . .. 'Jrf the same was demolished \0:1i€fnd t~?~ijppe · ,{~t, paid.-)Tshs. 86,000,000/=. ~~~ "'> ~~;:;, ~~i~ The appellarft: shoul~tiRai<{\he respondent 50% of that ~ (:~~;,: '@o/ ~~" ~~ amount,;;~~l1?, -::ij. him aftm., ,the" demolition of t~e disputed d,.1:;';JfJ ,,. h 0ase: ,her ordered to pay maintenance for his tune of Tshs 100/000/- mon_thl½ which t need~ fooct accommodation/ school fee~ "''%; expenses and others as per Section 129 of the Law e Marriage Acl [Cap 29 R.E2002J· This duty should start from February 1998, when the respondent left the matrimonial home till the time when the children attained the age of majority/ and Civil Appeal No. 251/2016 15 (iii) I make no order as to cost~ each part to shoulder his or her own costs. It is so ordered. DATED at Dar es Salaam this 13th d COURT - Delivered in Court Chambers in the .. and the Respondent. ~ A right of Appeal explained. Civil Appeal No. 251/2016 16