19850615 TZHC Mwanza

IN THE HIGH COURT OF TAl~Z.Al'7IA AT I''NVANZA (PC) CATRIKCI'UAL .APPEAL NO.l OF 1984 ( Origir~oJ.. Civil Case No .17 of 198 3 of the Primary Court of Urb;ill District at l':7vanza RAH.ELI KAC:ftfELE • e O O O O O O O O C • a. • e • • • 0 • 0 • • 0 • 0 • • RESPONDENT I\'lViALUSANYA, J. This is a s·2cond appeal and the dis_pu.te is over the manner the matrinonial assets were divided by the trial cour~ after the petition for divorce had been granted. The trial court held that the divorced wife was entitled to 3/8 of the hol1se and. h&lf of the _paddy shamba, and also all of the domestic u.tensilf.:. ,. a radio ce:.sette, a cl1pboard and a su.i tease. The hu.sband was clso condemned to pay the costs of the pe~i- tion. On ap_pee.l to the District Coll.rt the appellant/husband argued that the r;1arriage had not broken down beyond repair and so the petition for divorce by the wife should have been dismissed. However on tbat score the District Court could not find any valid grow1d for impu.gning the decision of the lower court. So the District Court endorsed the de•isio~ of the 1 ower court incl L1ding th.e order for the di vi si. on t of the matrimonial 2ssetG. ' The appeal to this court by the hu.sbsnd is mainly on two points. Firstly ths,t the d~cision of the trial cou.rt as regards the count::-ibution of the spouses towards the construction,. of the matrimonial hol1se that was divided, was aga:t::... t the weight of evideLce. It is the· o.ppellant' s conte- ntion that the evidcn•~ irresistibly poi~ted to the fact that it was by sole effe>rts of tl1e ~1u.sb~r1.d that the house was constru.cted. The second ground of appeal (filed as an additional groLU1d with leavG. of the court) is that the parties were never marrieJ and so the division cf natrimonial assets \. - 2 - could not arise-; as the di vcrce its elf was null s..,.vid void. Counsel for the appellant Irr. Kahangv,& cited the decie,ion of Mfalila, J. in FrW1cis s/o Leo Vrs. Paschal Simon Maganga: (1978) L.R.T nc.22, which stand~ for the proposition that s .160 (1) of tJ:~2 law of 1'~crriage Act No. 5 of 1971 does not automatically convert concubines into wives at the end of two years of c0::12.bitation. .And so the presumption that a man snd a womc:,,1 were duly narried .may be rebutted if it cs.n be proved that the purtie::. had never gone through a ceremony of marriage recognised und0r the Act. It was conceded by the parties that tl-:,.2y had never gone through any ceremony of marriage recogriised by the marriage legislationo I think it would be elegant if I start first with the second leg of the appellant 1 s ground~ of appeal. I wish to point out at tLJ outcet that the contention that the divisio11 of matrimonial ::::,ssets would not ai"ise if there was no valid marriage is pa1Jably wrong &nd misconceived. If the divorco proceedings are a nullity b,:.:C[:Use there was no valid marriage, . nevertheless ur~der s .160 ( 2) of the lc,w of Marriage Act, 1971 joint prop2rty is dividable between the partier. c.s if there was a valid divorce. ·That is precisely the,· tenor of s .161 ( 2), as it was ::neant to protect defenceless women who had cohabited with men for a long time and then suddenly they are kickeQ out of the house a.:::1d found themselves roa~ing the streets. Surely it would be at the height of selfishness and gross injustice if the man in the circumstaL.ces was left to own all the jointly acq uirGd. pro1;2rty once they ho.d sepa- rated. As to -,vhen Sol60 (2) can be invoked, I think Nyalali Ag. J. (as he t~en was) correctly set out the prerequisites in the case of .2lizabeth Salwi ba Vrs. Peter Obar a: (1975) L.R.T. nti.52. It was stated therein that in order for a per3on to apply for reliefs provided for tJnder s.160 (2) of thG Law of Harri.age Act~ 1971 the following conditions must be fulfilled: a) It mtJ_st be lJr~ved th:.:. .t the man and vrnman have been living together for two years or more; b) It must be proved thc;_t the mar.i. und the wo:-1aJ1 acquired the repL1t2.tion of bein,G husband and ·Hif e and were so regarde2. by t.tw socL::ity of people in which they habi- tus,lly _::oved; md c) It must be proved that the man and the woman wore in fact and in lavv not married. • 00 ./3 j .,, ;t - 3 - Once tb.ose three conditions have ~.9ee:a! properly bocm fulfi- lled then one claim the reliefs state~ in s;l60 (2) of the Law of Marriage A.ct 9 1971. Counsel for the appellant 'Nill appreciate that all the three cond.i tions were fulfilled by the evidence ad::luced at the trial. It 'iia,s therefore· presumptuous on the part of the appelLmt' s counsel to think that unmarried wo:fuen of the kind had no remedy in luw. That was totally wrong. The relevant part of s.160 (2) conferring jurisdiction to our courts reads: " ....• th0 court shall have, jurisc:.ii..ction to make order or orders for maintenance and. upon applica- tion J:lade thGrefore either by the woman or the man, to grant such other reliefs, including custody of children, as it has jurisdiction under this Act to ~ a a grant upon or suoseguent_ to_ tne_r:1_aking· of _an order_ for_ the_ dissolu.tion_of_ a marriage" 0 (The under- lining is mine ) • It will bG noted that what is stated herein above is that the court is crnpower::;d. to grant any other reliefs that it would grant if it was~ divorce petition. It will b2 appreciated that in ,-1. di vorc::: petition the court is empowered to di -ride matrimonial assets and so it is one of those 'other reliefs' which the section cited is speaking about. From the foregoing it is unnecessary for me to consider the effect of the decision of Mfalila J. cited above 9 but I may only observe in passing that 'in my opinion, the decision correctly states the law on the point adumburated. Having decided that the lower cou.rt had jurisdiction to divide the jointly acquired property, I T:1:J;J now proceed to consider as to whether the house vyas wrongly included as an asset constructed by joint effo~ts. That is the first ground of ap_peal. It was hotly dispu.ted 'as to whether the cohabi- tation started in 1976 or 1978 • .Appellant arcued that evi- dence adduced at the trial showed·that they started to cohabit in ])ecemb0r 1 1978 and so the house '.Vhicl:. he,d been built prior to 1976 could not have been jointly built by both parties. The wife testified thst they had cohabited since 1976. However my view is that the' appellant has missed the point. The respondent and the witnesses in support conceded - 4 - that when cohabit&tion started 9 appellant had already built a two roomed .he use. But it wns further argued. that after cohabitation started 9 the spouses expanded the .'.1ouse until the house becac2 a five roomed house v1hich ext2nded to the whole of the b&ckyard. That wr:.s the easence of the wife I s case and it was even backed up by the app~llant I s own v1itness one Si::ion s/o T1adundo (DW.2). It will be seen thGrefore that the wife s case was the stronger of the two. 1 In my view the trial court was right to ho1d that the wife had made a contri bu.ti on towards the co:1.struction of the house. In granting only 3/8 of the house to the respcnde11t 9 I think Court the) if anythinJ 1 was over-generous to the appella,.~t. The ·evidence clearl,y showed that the wife's contrj_ bution was indeed substantial. Be that as it may 9 the appeal is disn::.issed with costs. l\TN.ANZA 15/6/1985 9~~~: Judgment delivered in chambe~s this 15th day of June 9 1985 in the presence of both parties in person. ;> '.:...:..:...:::.:.:.:.----y-71( :::.:.--- - --------- ,\ . \___...,· ,Jc:;..-..:...~-\- - - - -..,i '-- MWAJJZA '-~j J .L. J:1WLLUSAlffA 15/6/1985. JUDGE