19810519 TZHC Dar es Salaam

/Y} J;N THE HIGH COURT OF TANZANIA AT DAR ES SALAAM (PC~ MATRIMONIAL CIVIL APPEAL NO. 26 OF 1980 (From the decision of the Primary Court of Ilala_at Kariakoo in Civil Case No. 31 of 1980) Bf.Jc.ARI SALEHE ••ta••••o•••••••••••~••••••o•••o••••••••••o•• APPELLANT versus MTUMWA RA?-AADHANI .........'• ...................... ,,.......... RESPONDENT J U D G E ME N T b KIMICHA, J • -:! The parties in this suit were married according to the Mohamedan faith and cohabited continuously up to 2/6/80 when ~heir marriage was dissolved by the Primary Court ·at the instance <>f the husband, the appellant in this o.ppeal. The divorce proceedings were short and simple. The appellant had issued the respondent with a Talak out of Court after the marriage reconciliation Board failed to settle their misunderstanding. Then the respondent }1tumwa a/o Ramadhani instituted the present proceedings before the Primnry Court praying that the dissolution of the marriage .be confirmed by the Court mi.d that she be awarded her share in a house which they had built together during _the life of th ,dr marriage. The Court confirr.1ed' the dissolution of the marriage • • As regards the wifes' contribution to the construction of the house ... the wife said that she was at the time of the construction of the house a business of preparing scorns (Vitumbua na nandazi) and she used to contribute r~gularly two to three hundred shillings at a time to the • purchase of cement, sand and other building materials. The appellant· agreed-that the house was built in 1976 duritlg the life of the marriage and apparently before the matrimonial misunderstanding arose. But he· denied her claim • saying that he ovmed cocon~t and cashev'!nut r ·, shambas and that he built the house with the incomfJ that he defiVE.d from these shambas. .. He also got aid from his children by another marC'ia.ge as he had no children by the respondent. \ Both did not call v1itnesses in sup·;,oJ'.'t -of their claims. They also did not cross examine each other. The court, that is, the magistrate and the two court assessors have visited the house indispute in th0 presence Qf the parties and valued i't' ,, I at shs. 80,000/= (eighty thousand only). ' The court found as a fact that the responda~t had contrib_uted to the - - ., construction of the house and awarded her on~ quarter(¼) of the assess1d Yalue;• That is the sun of shs. 20,000/= (Twenty tllousand·only). f ~ -~ ... .. 2 ·.1_ It is against tbi$ award :that' the .appellant has appealed. His grounds of appeal are that: (1) The Primary Court erred in law in failing to take any evidence on the issues before the Court and in reaching decision thereon without any evidence. (2) The Primary Court erred in law in awarding to the respondent¼ the value of the house without evidence to support such findings. (3) The Primary Court erred in law in valuing the house at shs. 80 9 000/=·without any evidence t~ support such evidence. ~ir. Lakha appeared for the appellant during the hearing of the appeal and the respondent appeared in person unr~presented. The respondent is a·simple woraan wearing a black veil. My guess is that she is in her late fifties or early sixties. I did not like to offend her feelings by asking her whether she was literate or not. But if she has any education at all it must be very rudimentary. Certainly she is not the type of person that would naintain a record of her day tod·ay occurences however serious they may b,J. I have no recollection of the appellant's features as he did not speak during the hearing of the appeal. It a,pears that the house was built before the natrimonial misu.11dersta.nding that resulted in the dissolution o: the marriage arose. In other words it was built in an atmosphere of love and trust between the parties. I would not therefore. have expected the parties to have kept maticulous records of their contribution to tlw construction of the house. Certainly not the respondent. And ii' the aPJ:)ellant had kept such records he would certainly not failed to produce them before the court in denying her claim. • I Therefore my answer to grounds one and two is that the court was not to blame for not calling naticulous evidence for the construction of the house. The appellant _was obliged to produce this evidence and had the opportunity to do so. He was therefore to blaLJ.e :~or not doing \ so. In short the burden,of prpducing this evidence was on him. At least he had ample op,ortunity of rebutting the respondents allegation that she had a thriving business of preparing scorns as thE:re would have been plenty of witnesses from their neighbourhood. Sc Jrns are not sold in secret. The appellant has challenged the court's assessment of the value of the house without evidence to support such evidence, The house is in SINZA area Ubungo an erea which i.s almolit wholly developed by :i,.ndigenous Tanzanians. It has not been built b;y a contr~ctor, and the appellant has not claimed either before the Primary Court or in his count that he built it with o. Bank loan. •••••• ; h _; J ;.~.;! ... '.__ ,. 3 I therefore do not agree with the appellant that the count was not competent in assessing its v2.lue. Infact I hold that the contraey is t.rue and. that is this is the sort of house that the count could have made a reasonable assessment of its value. Tl}.e court must have been aware of the current prices of cement and sand and of the ·charges of artisans for various construction work that needed special skill. I finally find that there are no substantial grounds for challenging, the court's award to the respondent. The appeal is for the above reasons dismissed with costs, • . ..,, ·. , ~~ M. IA, JU])GE 19/5/81 ==-==========