assah e mgonja vs elieskia i mgonja 1995 tzhc 702 8 september 1995

Ill -Jinc HIGH COURT 03? TAL!£3.TA iff paa bs sa lm i-i O I V l L APPEAL NO. 50 OP 1993 appellant ASOAII e . mgonj a versus ELIEST.IA I . HGONJA .................. ................................... • • • RESPONDS'!? JUDGEMENT inr/iiuAgo"? Js- 3ie parties in this appeal, nainely ASSiL'I S. LGOiTJA, who is ode appellant, and one SLIESCIA I . m A a , were form er^ husband and wife, having entered a Christian marriage sometime in 19<->0» Due to mieunder— standing and upon the appellant* s petition their rutcriage was legally dissolved on 19/4/1593 by the order of the lower courts Aaong the r e lie fs prayed fo r, besides the (dissolution of the marriage* •were division of matrimonial assets, the custody of a ll tne children maintenance for a ll the children and any ot^er rcliej., There was evidence’ adduced by the petitioner u-iicn was not a« a ll disputed by the Respondent, that during their mavriage the couple vas blessed with four children, nainely Joel I-Igonja, Grcce Ifeonja, Richard Ilgonja, and Baraka Ifeonja, then aged 12yrs, lOsrrs, oyrs and 3yrs old* respectively. During such duration of their marriage the couple also a anagod to build a Jourvej purchased one m/v Reg JIo.TS.89712, make Toyota 'R illu x Pickup, now out of Order, and developed a frria that had been purchased by the Hespond'mt in 1977* In determining the r e lie fs song he by the appellant, the lower court declined to make aiiy order in respect of the house on the ground that the same had to rear in a family house to shelter the children of the marriage; no orders was made in respect *of the n/v on the ground that there was no" evidence given by the appellant that during the subsistence of their marriage they had acquired a motor Vehicle Reg,No. TZ.89712, na’.r Toyota IXillur Pick unj and as regards the custody of children the learned t r ia l magistrate considered the ages only of the four children and and then made the order that the three older children had to remain in the custody ofthe Respondent5 while the youngest had to be under the custody and sole maintenance of the appellant. I “ is against such decision of the t r ia l court on the r e lie fs , other than dissolution of the marriage, sought by the appellant that this appeal ’ ■as been proferred to this Court. Arguing her appeal, the appellant has maintained, among other things that she cannot accept that children of the marriage are entitled to inherit the properties of their parents while the parents are s t i l l a live, which would appear to be the effect of the decision of the t r ia l court ill respect of the house jointly acquired with the Respondent; that the m/v Reg*No«TZ 89712 Toyota Hillux had been purchased by them in 1987? and that though the fax a was purchased by the Respondent in 1977> before their marriage* it was herself to who had played a major role in developing i t by supervising the clearing of it , providing fe r t iliz e r s and planting with pineapples, oranges and banana plantains a ll of which are said to bo growing in the farm. Besides i t i s on such very farm that their matrimonial house was later b u ilt* Arguing the appeal for the Respondent, Hr, Kashumbugu, learned advocate, has contended, among other things, in support o f the judgement of the lowor court to the effect that -there was no evidence relating to th 6 existence o f n/v TZ 89712, Toyota Ilillux Pick-up or as to vciether she ever contributed in its acquisition, how such m/v was so acquired, and whether the same was so acquired during their marriage* As regards the farm, i t has been his contention that as such farm was bought by the Respondent in 1977j at the time when they were not married, the appellant cannot claim any interest in it* As regards the division of the matrimonial house he ha3 axgued that i t was upon considering the interests of the nine children of the Respondent, of whom four were begotten with the appellant, that the lower court declined to order the division of such matrimonial house. However, the learned counsel would be prepared to accept determination of the interest of the parties in the matrimonial house, irrespective of whether or not the property is to be divided among the intercstc-d parties# In the light of the evidence adduced before the lower court, i t is my considered opinion that i t was wrong for the lerrned t r i a l magistrate "to deprive the appellant of her interests in the matrimonial house by refraining to determine the some for the simple reason that there were children of the marriage who stood to benefit* An rightly contended by thd appellant, that was not a disposal of the property in the course of an administration of deceased’ s estate* The guiding principles in the division of matrimonial property following a divorce are those provided for under S*114 of the Law of Marriage Act 1971, as also interpreted by the court o f Appeal in Bi-Sawa* s case# TJhat then does the law say? In terms of S*114 of the Law of Marriage Act 1971> i t is there provided as fo llo w s*- - 3 - n114 ~ ( l ) the court shall have power, mien granting or subsequent to the grant of a clccroc of separation or divorce, to order the division ■between tlie parties of any assets acquired by thorn during the marriage "by their joint offorts or to order the sale of any such asset and the division between the parties of the proceeds of sale* (2) In exercising the power conferred by su bs(l) the court shall have regard (a ) to the custom of the comnunity to which the parties belongj (b ) to the extent of the contributions node by each party in money, properly or work towards the acquiring of the assetsj (c ) to any debts owing by either party which were contracted for their joint benefit 5 (d ) to the needs of the infant children* i f any, of the marriage, and subject to those considerations, shall encline towards equality of division* ( 3) For the purposes of this section, references to assets acquited during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or "tjy th G ir joint effo rts*” In this case there has been no dispute as to the extent of contribution by oithcr party in the acquision of both the house and the m/v and in the development of the farm that was purchased by the Respondent prior to their marriage. For while the appellant claimed before the lower court to have acquired both the house and m/v during their marriage, there was no dispute raised by the Respondent as to the extent of contribution by either of them* Neither did the Respondent dispute the appellant's extent of involvement in their e ffo rts to develop their farm# As such there can be no question as to the extent of contribution by either of the parties* They havej in the circumstances, to be taken to have had equal contribution in the acquisition of both the house, the motor vehicle and in the development of tile farm* I also tala] note of the fact that among the needs of* ■!*»•?— - 4 - children that is those children who have nr-t reached the age of majority a3 to be able to load an independent l i f e , 'there is the need for adequate mid suitable shelter# B.c duty to provide the sane li e s upon the father, unless unable to do co? for reasons of physical or mental ill-hcr.Ith* Eiat can be effected by renting a house or building one for the purpose. In considerin'; such interests of infant children, i t is the party who has custody of the children isho has to be awarded control of the matrimonial ho ic for the benefit o f the children of the marriage* Nevertheless, that should not be construed as a wry to deprive the other party denied of such possession, of any interest in the house. I t is therefore imperative that despite awarding possession of the house to the party who ha3 custody of the infant children the share of the other party ,;ho has been deprived of sue’-,possession nuct be determined, so that in the event of an attempt by the party who lirr possession of the house t> ■ dispose o f i t , or upon such other party1c dealty, the interest of it.-: par ly nho has been deprivod of possession of such house, is duly recognised and protected* It is in the ligh t of such considerations raid in terms of the provisions of 5»11A of the Law of marriage Act 1971? that this Court orders as follows that is to says (a ) that the appellant is entitled uo two fifth s (2/5) of the value of both the house and the fern acquired and developed, respectively, by the parties during their acrricgo, (b ) that the parties are entitled to nil equal share of the proceeds of sa,le upon the sale of the m/v TZ 89712 Toyota H illus Pick-up. (c ) that the matrimonial house and f'jrm shall remain in the possession of the party who has custody of infant children of the marriage until they reach the age of majority and ' "Vc started leading an independent l i f e , after which either party shall be entitled and have liberty to demand division of such matrimonial house and farm, by sale of the same, (d ) Upon. GO-Ch pnity having custody of some of the in f an o children of the marriage, then both the house and farm sliall be subject to sale and divided, on equal basis, in order to enable _ 5 - caoli pcarty establish a now hone fo r the children*: How coning to tho issi’-O o f xaaintcnance; i t is understood that tho Respondent i s s t i l l worldne with tho Ilim s try o f Education and culture and tho appellant is "working with. TAOOSOjjE on contract baois« The lair on maintenance- o f children and spouser: i s very eloaxe As regards maintenance o f children, that i s spelt out under & 129. o f the Law o f Marriage Act 1971- i s there provided as xollowss « 129- ( 1 ) save where an agreement or order o f court otherwise provides i t sh all "be the duty o f a man to maintain his in fan t chilclrcn, whether they are in h is custody or the custody o f any other portion* eith er by providing then with such acco.Tnodation, clotilin g, food and education as nay be rcasonrble having regard to :da xieans and station in l i f e or by paying the cost th ereof c (2 ) Subject to tho provisions o f Subsc ( i ) , i t sJia-ll be the duty o f a woman to maintain or contribute to the maintenance o f her in fan t children i f 'their fathor i s dead, or his whereabouts are unlaiown or i f and so f a r as he i s unable to maintain thorns” I t is clea r from the foregoing provision that while the lair imposes a duty upon father o f a ch ild to maintain such cliild , such duty may be sh ifted by an order of a couxt where, circumstances so domancU Chat i s what happened in the instant case in respect o f the youngest cliild that was placed under the custody o f the appellants I t appears that the lower court did so, and i t had the mandate under our law to do so, upon being made aware that the appellant had. her own independent source o f incone, as she was then said to bo working with TAC030DE, That being tho p o sition the order o f the: lowex couxt as to tho maintenance by the appellant o f the in fan t ch ild under the custody o f the appellant cannot bo in te rfe r re d withe Coming to the issue o_ the custody o f iiio children o f the marriage, the four children were then aged between lgy rs and 3,yra. I t upon considering the ages o f the children only that the lower court decided to place only - 6 - the youngest cliild under the custody o f t.io appellants The children irexo not given any opportunity to choose arj between th eir divoexcrng parents as w ith whom they would f e e l nioic coii'u-ortaole to liv e * Y ei in toxins o f sub sc (2 ) o f Sc-12'3 o f the Lair 0:.. Ilarxiago Act 1971, i t i s provided as follows.; ”125 - (2 ) In deciding in whose custody on in fant should he placed the paraaount consideration sh all he the I f are of the in fant and subject to th is , the court sliall have regard - (a ) to the wishes o f the parents o f the infants and (b ) to the Tdshos o f the infant^ irhexe he or she i s o f an ago to crzpress an independent opinion^ and. (c ) to the customs o f the eorxaunity to which the p arties bclonge (3 ) Uiere sh all he a rebuttable presuniption that i t i s fo r the good o f an in fan t below the age o f seven years to he with h is or her mother hut in deciding whether the presumption applies to the fa c ts o f any particu lar case, the court shall have regard to the u n d ersira b ility o f disturbing the l i f e o f an in fant hy changes o f custody; ( 4) lihere there are two or more children o f a marriage, the court s lia ll not he bound to place ho"uh or a l l in the custody o f the sane person hut slia ll consider the w elfare o f each independently* ” I t i s evident from the foregoin g prc-visiona that the three ch ildren o f the marriage then aged 12yrs, lOyrs and 6yrs, ought to have been hoard before being placed under the custody o f the Respondent, as with whom between the divorcing parents they would have lih ed most to liv e e I t is also evident that the lower court erred in law, to place the 6—year old ch ild under the custocty o f the Respondent; without there being any reasonable grounds to rebut the presumption that a cliild o f that age ought to be placed under the custody o f the mothere Of course the situ ation now has changed^ Tlhat, however, remains to be regu larisedj i s the opportunity to be given to the other three children o f the marriage be­ gotten by the appellant and the Respondent, to choosc as between the 7 tiro parents, with, w’lon they' would most prefer to l i v o c In the oiiouaotancGs, I sot aside the lower cou rt *3 order fo r the custody o f the three older children a ll o f whom h;., been placed upon the Respondent and order that such, children he required to appear "before the lower court and allowed to exercise such choice, in accordance w ith the lawc Accordingly, I allow thia appeal in part, and nake no order fo r cost sc /A Doliv e r ed in cliaabcrs at Dar es Sslaaw u-iis Oth day o f Scptenbcr 1995? in the presence o f both par t ie sc JUDGE, 0/9A995*