19880407 TZHC Dar es Salaam

IN TTIE lliGIT COURT OF TANZANIA. AT '.Diill ES SALA.AM , MISCELLANEOTJS CIVIL APPEAL NO. 1 OF 1987 BARA.TI KAT.AN GA •• ., ............. • •••••• •". • • • •,. • • • • • .. •. • .APPELLA!:TT versus ALLY IBHAJIIM. •,. • • • ••• • •••• o •• • • • • • • • , •• • . • • • • • • • • • • •• RESPOJ:·IDE!:JT

JUDGMENT IW'IGANOe J ~ This is a.. seoond a;,_·,peal. The appellant Bah.a.ti Kata11ori-a. has asked this oourt to reverse the ju.d8ment of the distriot oourt of ~ ~ urhald. the decision of the· p:d,.ma;lzy' oout"-b at Mb~la in a matter that. o.an.oerned Jllaintanano& end the distribution of certain assets bettrnen the parties upc:,n the d.isso- luticm. of their marriage. '1.!b.a parties were mro:Tied in 1975 af'ter the marriage between the r.eapQJ:lclart:21 Ally D:xt-ahiin and ail,Of.her woman had broken dJ:rwn. The marriage between "iili.e parties was dissolved in 1983. On the evideno& available. it is impossible to tell who was responsible for the f'.a.ilure of the marriage and I think it is hardly material.. The respondent has a house at Ifurasini in Dar es Salaam.. Tie stated that he built i·~ in 1968, that is bef'ore his marriage to the a,i,pellant. Thia evideuoa was accepted by the two courts below and the courts found so. Mr:.-1 Kesa.ria, learned 001msel for the appellant, has oballenged that fi.ndi.ng and has asked this oourt to find that the house was built during the cubsistenoe of the marriage. With respect I see nothing in prinoiple that can lead me to upset the fa.otual finding of the two courts.. The courts were anti tled to believe the reeponde:ntls version, The respondent lmilt another house at the same place suJJsequent]J"c Again there ~dispute as to whether it

was built before the marriage or :~/.:~fue subsistence of the marriage. The two lowf:U' oourts found that this house was also built prior 'to the mai-rl.c1t,o-a. That was ·also a f actua.l finding and I cannot say that the courts eITed in reaching it. There was an allegation that the respondent ha.cl built a house at Ukonga in Dar es Salaam for the appellant- Tb.is allegation was confirmed by DW2 Robert Kilindo but strongly denied by ·l;he appellnnt ' . and her mother PW2 Amina Sel~am.., '., - 2 .. • .1etu1n~ dis-wiot ~ - w baliewd. tho -vaaiGn of the #&s,;,on4eni end found -tha:t ~1e 21espondent laid out ihe funds lf'JJ ·iho o ~ ot it~i ~ . trit f ~ bu been ti'llmiflJr ~ 'by V. x,,~~ pG~haps righ~. Ilownn, in ,., OpinuJI. ~tho the ,,,~t',: a.114'p.ti.on i.a ilwe 01! Dot 1., ~ in .91.cv ot t1w f»1Aiff{?J ot the 1ovw oouns iD • • ~ ot ih• 'M bdiut Itouae• and tho :ta.at . 1bat the . H-,,onclant ba,s nevo ola.imo4 tl1,JT interest in the tJkonGa hauae. As a. matta ot law the two houses at K'uraeim. cannot be °'h.e ,ubjeots of dirid,on. and "'110 appeal., as it oonoerns ·:...: ·:i {,?:Jc':4-1.tion: ·.., .. · There is merit in the appeal against the deoiuion of the diatr:tot oourt on the ClUSB!!°n of mail1.tenanoe. · The lea:rned district ~isJi;ra.te in .his judgment/ that he sror no justification in entertaining the 1,rayer for maintenance on t:1.0 grounds that "the divoroe was

~,nj:~iated by herself and against the wishes of the respondent"• With res-peot, · there was no firm evidenoa to support the finding that the divoroe 1,rooeedings were institl.1.ted against the wishes of the respondent. In any event, I :respGOttu,lly agree with Mr Kesaxia. that the mere institution of suoh prooeed.:i.ngs cannot p:rejudioe her right to ma.:in:benanoe. Indeed even if she wa.s to blame.for the breakdo.m. .of _the marriage, that alone does not neoessa:rily deprive he.r of her right to ma.intena.noe. An . award of maintenanoe is discrationar,r and I think there is su.bstanoe in the words of L o r d ~ - • (as he then was) in. Wachtel v·wa.tohtel (1973) l ALL ER 829 thc.t :in most oases of divoroe both parties contri- bute to the breakdown and therefore except in the re sid.u.e cases where the oonduDt of one parv has been ·so obvious and gross that. it is repu- . gnant to justice to order the other parizy' to provide ma.intenanoea the oourt should not refu.se making an order for maintenance merel;y- beo3:U.Se of 'Hha.t was formerly regarded as gullt or blame. This was not such a residue oa.se. I allow this part of the appea1.. For what I have stated above, I dismiss the appe~ to the extent that it challenges the decision of tho district court to order the respondent to pro~de ma.i.ntenanoe for the appellant. I re-1:u:m ·i:illa file to the primary oourt for it ·to assess the maintenanoe. ~+'3 <uU) (D.P.MAPIGANO) .

JUDGE 114/8€- DeliWl"od