20060911 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 294 OF 2004 (Original Matrimonial Cause No.40 of 2003 of District Court of Kinondoni at Kinondoni, Mkwawa, RM.) . AHMED HADI .................................................. APPELLA.NT VERSUS ASHA MOHAMED ALLY ................................. RESPONDENT JUDGEMENT KALEGEYA, l: The Appellant and Respondent were husband and wife until 21/9/2004 when the Kinondoni District Court (Mkwawa RM) granted divorce and ordered as follows: "1. One Kunduchi Pwani house be given to the petitioner. 2. The rest of the houses be in the hands of the respondent and his other wives. 3. Since it is stated by the petitioner under paragraph 7 roman (iii) that the two acquired ''households" the court has not come up across the annexture purportedly claimed to be annexed to the petition which would have listed and explained what the word ''house holds" mean. The court therefore can not make any division of house holds when uncertain of what it exactly means. 2 4. Since the respondent and the petitioner have children who are 10 and 13 years old, the respondent has a duty to provide maintenance for the two children, education and shelter. It is therefore ordered that the respondent should provide maintenance at a tune of Tsh. 40,000/- per month on top of that he should see to it that the children are afforded the opportunity or the right to education and medical treatment where necessary. It is so decided No order as to costs" Dissatisfied, and employing services of Dr. Lamwai, Advocate, the appellant is before this court with a long memorandum of appeal and prayers as follows: 11 1. That the Learned District Court Magistrate erred in law and in fact in holding that the houses belonging to the Appellant were jointly acquired by him and the Respondent, while at the same time acknowledging the fact that the Appellant had more wives. 2. That the Learned District Court Magistrate erred in law and in fact in holding that the Respondent contributed to the acquisition of the said houses while there was no proof to that effect. 3. That the Learned District Court magistrate erred both in law and in fact in holding that the Respondent was entitled to one house while the extent of her contribution had not been proved 4. That the Learned District Magistrate erred in law and in fact in . proceeding with the actual distribution and ordering a particular house to vest in the Respondent, without having first determined the value of all the properties and the proportion of contribution by either party. 3 5. That judgment was pronounced on the 21st day of September, 2004 and certified on the 2;:th day of October, while the decree was issued on the gh day of November, 2004 and hence this appeal is within time~ WHEREFORE, the Appellant humbly prays that the Honourable court takes his appeal into account and order as follows:- {a) The appeal be allowed and the decision of the District court to the extent that it orders a division of matrimonial assets be set aside; {b) The Appellant be declared to be the sole owner of the houses which are held in his name and a finding be made that the Respondent did not contribute to the acquisition of the said houses; {c) In the Alternative to {b), the Respondent be found to have contributed not more than 10% towards the acquisition of the said houses; { d) The Appellant be given his costs of and incidental to the appeal; {e) Any other order{s) that the Honourable court may deem fit,, The Respondent is represented by Mr. Ngudungi, Advocate. The appeal was argued by way of written submissions. Dr. Lamwai submitted that the court did not have sufficient evidence establishing the existence of one house at Mtongani and two houses at Kunduchi Pwani, and, if they did, the respective contribution by each party was not proved. He also charged that the matter proceeded exparte. I' 4 wl ' On the other hand, Mr. Ngudungi challenged the allegation of exparte hearing in the matter charging that the Appellant was present in court throughout the proceedings; that one of the three houses was sold by Appellant leaving two intact and that he admitted all that the Respondent stated. He added that he has even failed to pay maintenance as ordered and that in the circumstances the appeal should be dismissed to enable Respondent have shelter with issues of the marriage. In rejoinder, Dr. Lamwai, submitted that what Appellant stated was not admission but protest; that the houses in question were not properly identified and that the question of maintenance should not crop in as there is no cross appeal thereon. In the petition for divorce, properties pointed out for division are described in para.7 as follows: "That the petitioner and the respondent managed to acquire the following properties Jointly:- (i) One is at Mtongani Kunduchi (it was known by the name of Wete Guest House}, and (ii) The last two are at Kunduchi Pwani (iii) House holds - (the contents are annexed to the petition}. " The court did not decide on the latter as it did not see the alleged annexure. 5 i' I should start with Dr. Lamwai's complaint that hearing proceeded exparte. With greatest respect to the Counsel, and as correctly pointed out by Mr. Ngudungi, the proceedings speak loud against him. Throughout, the Appellant's presence is fully recognized and on 16/3/2004 when the petitioner closed her case, the defence case was fixed on 26/3/2004. On 26/3/2004 both Petitioner and Respondent dutifully attended but instead of giving his defence Appellant stated, ''I know I am to give my testimony today but I do not have anything to say as my defence. Whatever is already said by the Petitioner is said, I have nothing more to add. This is my decision'; and indeed the court proceeded to compose judgement. I am on all fours with Mr. Ngudungi that he (Appellant) should be taken to have admitted what the Respondent had given in evidence. He was throughout present and in fact cross examined the Respondent herself and PW2. And, as Dr. Lamwai well knows, "where any party to a suit present in court refuses, without lawful excuse, when required by the court, to give evidence or to produce any document then and there in his possession or power, the court may pronounce Judgement against him or make such order in relation to the suit as it thinks fit" (O.XVI, Rule 20 CPC). ( 6 1' Thus, even if the Appellant had decided to keep silent, the court could still pass judgement and give relevant order(s) I am aware of the guidelines on burden of proof as outlined in S.110-113 of the Evidence Act but I am also appreciative of the burden of proof in civil matters - just a balance of probability. Now, turning to individual contribution orchestrated by Dr. Lamwai, as he well knows this is not pegged on clean mathematical dissection. It depends on various circumstances including the position of the wife ( or even husband as the case may be). If she is a salariat or business lady and who channels all her earnings .into other, separate investments or developments unconnected to family matters (leaving the other spouse in a disadvantaged position of sole contributor), she cannot claim equal division thereto. In such a situation the court has to exercise due care and scrutiny lest it bestows unjustified riches on the offending party. However, it is now settled that a house wife's chores in taking care of the children, family and related is a contribution of sufficient force as that in the form of pecuniary contribution by the husband because by thus shouldering other family burdens the wife will have freed the husband and enabled him to engage in economic activities that may have generated the income to erect or purchase the matrimonial assets. (Bi Hawa Mohamed vs Ali Sefu (1983) 7 ... TLR No.32) and which may entitle one of the spouses to equal division of matrimonial assets in the event of divorce. And, as per her testimony which was not challenged, the Respondent's contribution in this regard was tremendous though rewarded with mistreatment - getting just shs.10,000/= monthly for maintenance of at least 4 people, herself and 3 children; the embarrassment of having to receive even that sum at the hands of a ten cell leader; engaging in 1'Mama ntilie" activities in order to raise money to pay for her upkeep and school fees for the children, and disposal by the Appellant of the matrimonial house she was occupying let alone taking away of all household items in her absence! I appreciate that throughout her testimony the Respondent did not point out the plot numbers or title deeds related to houses. However, the Appellant does not dispute owning the three houses pointed out by the Respondent in para.7 of her petition for divorce. Apart from his failure to give rebutting evidence, his sole statement in the answer to the Petition thus, 1 1Para seven and eight we did not acquire any properties jointly because the properties mentioned .. in para seven I acquire(?) then (?) before her marriage'; does not legally remove them from the ambit of matrimonial property. And, by his statement he admits of their existence. 8 .- ,. The Respondent having established that they got married in I early 1980s; that throughout she shouldered the major burden of family chores including upkeeping and paying children school requirements/fees; that till divorce they were still husband and wife and that till then the said properties would in normal cause of events be counted as matrimonial property, the burden would legally shift to the Appellant to establish as he alleges, that they were acquired before they were married. And sound mind would ask, if that were the case why not come out in the open to establish what was alleged, to certainty! Here, I don't want to go into details, but I should observe that even if they were, if maintained and improved upon during subsistence of the marriage, the wife's contribution would still be trailed thereto. On the whole, I am not convinced by Dr. Lamwai's arguments. The court properly considered the pleading, the evidence and surrounding circumstances and arrived at a sound finding, and in fact, in Appellant's favour because it did not particularise which of the two houses should be surrendered to Respondent hence left him with a latitude of keeping the best to himself. Appeal dismissed in entirety with costs. L~ JUDGE 9 Date: 11/9/2006 Coram: Kalegeya, J. For Appellant - Absent For Respondent - present Judgment delivered. L.B. Kalegeya JUDGE 11/9/2006 di~/'/ I L. B. Kaleg'eya JUDGE 11/9/2006