20171124 TZHC Dar es Salaam

,, IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPLICATION NO. 797 OF 2016 (Originating from the Decision of the High Court issued on 4h November 2016 in respect of Civil Appeal No. 45 of 2016 by Hon. LJ.S Mwandambo, J.) BENEDICTO HULILO ......................................... .:~'~.APPLICANT '·.;-~->'., :• :.;'~;, -.-.~,. ,. 1~~- {'\. VERSUS •-·-~"' :<~ \i:.,, ,;~i'-"" BUPE JONATHAN ................................ .... ~-:J"~~-~-~il-~.•~·· RESPQ.NDENT ·,.\, .·.,: -~<:>·; .... ~· Jf:;:,~ .,~.. -:~; ··~·~'·'}····.. RUL.ING Date of the last Order 1:Jh October 2017 Date of the Ruling 24h November 2017 R. KEREFU SAMEJI, l. . .;· .-._ This Applicati.on has .been filed by Behedid:o Hulilo, the applicant, seeking ~ ..,; ·.--·•· ··.· for leave of this ,~ourt to:qppeal tothe Court of Appeal against the decision .. ,\.•.·'·• :'-:•·r, .:: ,~•,;,t-:.:;·_. ::__\:: of the High,C5g~t d·~:Jivered ~({4th November 2016 in respect of Civil Appeal No. 45 of''201_6 by Hon. L.J.S Mwandambo, J. The said Application is subrnitt:ed under:Sections 5(1)(c) of the Appellate Jurisdiction Act, Cap. 141 [R.E.2002.}:.and is supported by an Affidavit deponed by the applicant himself. The Respondent on the other part has filed a Counter Affidavit challenging the said Application. Civil Appl/cation No, 797 of 2016 1 sig,4;.K. Samej;, 1 ,--~--~-..;:-~ _:-;-:-·-~.;_;::,___-:7_::: ___ .•. - ·.' . ________ , . _ _ . - - - • - - - - - - •. _~--:--'. . - - - - - - · - - - • - - - : " ~ - ------- ...___________ -~---·-···-··- -~-~~--- -- --- - ---- -·-- ·- . , - --~--·~ ... ., . ...• _ -f:~--:::- -·-··--:-.·~_ ~--:,. . ._.-.---,. -·- ., . _-____ ~ - ·-- ~-·- - - ·-· -- ,....._,7<_- . . ..... , -~ ... - ·- - ''". ·•· ·-·· - . - ··-·-·· .. •••••-C,•,- -··-· . •• L=•• •• '> '••••; ~ The genesis of this Application traces back in 1989 when the applicant and the respondent started to have love relationship ( cohabit) and lived together as husband and wife. During the said cohabitation period, between 1991 to July 1998 they were blessed with two issues. In 1998 ,V they decided to formalize their relationship through ad@hristian Marriage. :,;ift~f,\, \~. After the said marriage they were again blessed ,~tth the tniffhJss.i:~e:~· The 1/~·?:~,1\ttt!>.· ,',:~:l~i:tf~·;' parties as well have acquired jointly severat:matrimooia~t'.::~~sgt~f Sometimes ,'.. C \'°•\ ~\{"~• >':' which culminated into the respondent petition1n;g:lor divorce in January 2014, where a decree for. divorce was _granted in November 2015. In . . . addition with the grant =~ of'l_he divorce, the . trial Court also, as r~quired by ~~ the law ordered for the\ clivi'ilon of matrimonial assets jointly acquired, whereby the= respondent was/awarded 40% and the applicant 60%. The , ~' custody· ·> 6fthe. last.bo/~<§~bina . .'· Benedicto was given to the respondent. The applicant was aggrieved by that decision and he appealed to the High Court on the two grounds:- {a) The trial Magistrate erred both in law and facts in not considering the respondent herein as the best custodian of Sabina Benedicto a girl of over 15 years old despite ample Civil Appl/cation No. 797 of 2016 2 s ; ~ . K. Sameji J I - • -- ••• • • -_, • - • - - . , ... ~ r - < > - - - - • ~ - ~ - - - ~ ~ -.~ -,.,.,.,e., - • • ,, ~-- • -• - --• --~ • • • ~-' r - ~-L - - -•- - .. , -, • • •~.....-·-=---- ~~.,.,..,.---~----- ·•-••• - • - - - - - - - ~ - - - - • ,,-• -=' •- ~ - --- - -, -~ • • • -• r - -- - _: • - • _,;:::· -, ------ -- - - - - -~--~- ----·. -· -~-~---·---~-- ' , evidence that the respondent has the capacity to -corrupt her minds; (b) That, the trial Magistrate erred both in law and facts when she to their acquisition. are not matrimonial assets, but were solely acquired by the applicant. In his view this matter should be handled by the highest Court of the land. Civil Application No. 797 of 2016 3 s , ~ X SameJ;, J ..··· . ~ --•-_- ·-':-~·~~- . . . ·-·-· -· •- ~-· -· -- ............. ---- •. ,...,,........ ·-· .. - - ~ - : : - : - - : - - - - - -~ -----· ---------- - - - --- ---- ---· --~-;.~----•--··-· ' I At the hearing of this Application, the applicant was represented by Mr .. G. S. Ukwong 1a, the learned Counsel, while the respondent was under the services of Tanzania Women Lawyers Association. By consent, the Application was argued by way of written submissions. This was 1 became legally known. It was therefore the view of Mr. Ukwong a that due to that fact, all properties obtained before that date cannot be termed as a matrimonial properties as were. solely acquired by the applicant. He challenged that, the decisions of the two courts to determine that. the Civil App/.ication No. 797 of 2016 , ; ~ Sameft, J 4 .-, ..... . :-, .. --,,· properties were jointly acquired were based on the presumption of marriage under section 160(1) of the Law of Marriage Act, which according to him are not applicable, because in the case at hand, there was no any presumption of marriage prior to 1998. He insisted that, prior to 1998 there was no any serious relationship between the parties. · He thus not~d the .. , need for an intervention by the Court of Appeal. lje insisted tfi'c3t, tbJfright to appeal is a fundamental right which do_ not depen9:'.8n th~ l;nsent of .· - -~- the respondent and prayed the same to be granted. ,, On the other side, the respong~nt -< . '::, bas,ed .. ·. ·, he!r. 9'-~rg,uments . "· on section 160(1) of the Law of Marriage Act, and argued.,i6at,' she started to live together with the applicant and:cohabited from 1990 till 1998, when they contracted the Christian Marric3ge. She· said they started to live an informal marriage life under cusfc5tnary marriage. In 1990 they lived at Keko and later from 1996-they lived· at Magomeni. That, during that period they were blessed with two i~sues a'nd the third child was born after the marriage. She also submitted that during that time they also jointly acquired properties as indicated in the pleadings before the trial court. Civil Appl/cation No. 797 of 2016 5 s;g-;,~R. K. Samej;, 1 .. ----- -- -· -·· --- ·-- - ·- -- ------=-= - ------·---·--·. -------·-·- -----·· ------------·----·. •---- - - The respondent submitted further that, as per the authority· in Bi Hawa Mohamed V Ally Sefu, Civil Appeal No. 9 of 1983 the contribution of the wife must not be monetary contributions even home/domestic chores Having thorough perused the Application and the Affidavit in support of the I same the cardinal issue for determination is whether the Application before me is- meritorious. Civil App!,cation No. 797 of 2016 6 ~ K. sameJ;, J .-:.. .. ::.;:;:-_=•-· ·- ::.: ._ . - :;..:.. ---:--.~ ;:• -~-.:. -·-.-::.~...:.:.-:- ~- ~~-- -~-- - ---· -- - - ----- -... -------~--- - -~,;..__;,. - __ ~ ~ . ~ - ..,.__,,._ . -·- ... ..... ··---·. ... --- . - ~ -- .....-- - ~---- ·-· . . --------~ ----- :'.' --·;.~. -~-- -~:{t~;;·::~~)-~~--'-'~- ~~/= -·,,.·:~ ::.~~~,t.;~l~~--~:~:~~:~-· --~-~ >-'~ • > 0 • ,, • , .... •• .. ~ •-•:•• • -•h• •, .:, ", .. , • • The position of the law in Tanzania is clear and settled that, i~ considering an Application for leave to appeal to the Court of Appeal the main issue which the Court is supposed to examine is whether there is a point of law involved in the Application fit for consideration by the Court of Appeal. ~..,,-:t ❖--· That, the applicant must demonstrate that, there are poi.bt(s) he wc:ints to ":t, "·::r'},_ \~ take to the court of appeal, which are contentious,. 9r of pu6IIQ)Jlle-:;9rt:ance . ·;) . ~:;,. . . -~1.?·•-:f{' or contain serious issues of misdirection or not direction .-; ~ .: - like.lyJo···result ;}}" in a ~~·-· \ ... miscarriage of justice, and worth con~ideratiori; by the>highest court of the . -~ ~ :,:-~,_;:~}~"'" ·-:~~:>.~,.; ,:~ _;~ . land. There is a plethora of legal authorities-:1'\:t this respect, see for instance cases of Venance M'§t:?l'.ldo:v ~- G & ·)~;;~·... <>:.:-- TRA, Miscellaneous Civil Case No. 37 of 2001 (unr.efforted), L~zaro Mabinza V The General Manager, Mbeya Cea:nent".Co~ Ltd,. Civil Application No. 1 of 1999 at Mbeya Registry (unre~portedf.'H:t.the·tase of Lazaro Mabinza V The General Manager, •: .· ....~ Mbey·a C:~ment,,'to. Ltd, the Court of Appeal held that:- .. -:·.k ._. •" Leave to appeal should be granted in matters of public importance and serious issues of misdirection or non direction likely to result in a failure ofJustice. " l7vll Appflcat/OIJ No. 797 of 2016 ~KSamejil 7 __-_--- ----.,....·--·-----•._- -~~~---. ------ .. - -·~-----· --:-··. -------- - -- -- ----- .. - - Furthermore, in the case of Sango Bay Estates Ltd & Others V Dresdner Bank [1974] EA 17, the defunct East African Court of Appeal authoritatively held that:- Civil Application No. 797 of 2016 S i g ~ . K 5ameJ;, J 8 .... --- : . ·=---~=·.:... ~- ·;; .. ·._.:. ·•. 7· .. . :~:;.:.~·-· --- ·--- -·- -· .~:;~·--.· -- -- .... ~~ ... ~ ... ... ·------·-- . . . ~·:..: . -·· . .:. - - - ~ --------~ - . - . ------------ - --·- ........ - .... . ·•·. - · . ,.:.....:,-.-..,i__-__-~-... ....... -.r--'. ~- _.. _ It is therefore clear that, in this Application, the applicant has to show that, , there is a serious point of law, which requires further consideration by the Court of Appeal. As such, the important issue for this Court to consider is whether there is a point of /aw-involved fit for the consideration by the and . facts, if the parties cohabitated to the extent of getting the. two .. . children what kind of seriousness is Mr. Ukwong'a looking for.· I am aware that Mr. Ukwong'a has as well argued that, the respondent has failed to Civil Appl'Jcation No. 797 of 2016 9 .K.SameJ;,J \ \ .-"::.· .·_. -~ .. __ : ___ __._____ ._ .. .. . ,: _. . - :: - . .., . - .... 'I. .•"· - ..,. ___ --- .;- '. ~-.+~~"::~:~!}~¥_;~~~~·,:~ ~:·'._::>~~:~'~:~~{~~:~~:!?·:.~'._: ·_,~':~: ~.·:"''~:'/"~-;;;;. . ":· :. \-_ . - ....~----. - ----- ~-:-.·:;.-·..,,. .. - .,,. ,. ' _... . prove her monetary contribution to the said matrimonial property, again with due respect to Mr. Ukwong'a, the Court of Appeal had already pronounced itself on this matter and the position is now settled. See the decision in Bi Hawa Mohamed's case. alive to fundamental human rights and the noble duty of this court to tk5 substantive justice, but due to the laid down principles and lack of legal points and sufficient reasons submitted herein, I am inclined~nt this Civil Application No. 797 of 2016 lO Si ...... . K. Sameji, J . . -~· . .- ... :"· _; ~~--- . .'.:~~~- ---==--··· ._____ - ~--,.- - -·_-,_-- -~ ~ . ,-_- -- . - .,.. ....,..,_. ·-- ," -- --- --·- . ~;-... ... _;,•ct.~-"-".-,.,,.,, :~ . -· -.-·: ---~·--c-- - - - . :_._;•7°~L1.-, ~ -~-. •~ .. ·""' ~ ,L. •• ........ • .. .. t . Application! In the event and as. I have demonstrated above, the Application is hereby rejected and dismissed with costs for lack of merit. It is so ordered. DATED at DAR ES SALAAM this 24th November 2017. CM! App/lc:ativn No. 797 of 2016 . , ·~-·-··- 11 +K. SameJ;, J . ----- ~--~-!~::· ___ _ - - - ·--•- ----·----~--~· . - ·.··_:.;:;,.;.~~-----,--_~~~~~- ··-- --___._····---·· -~--- ~-~ -------- ·-· - - · - - ~ --- ~ ---- - --- . ..... ....:. . ~. -~ I ..,-~~:,._~~~--;,~:"':~•-~~:~~- ;-~- : •••. ,"':'•;f_~~~:..__--,,":~~i;!_·-.•-~---~--··~;~ ·_;,. . ..;-tC =~·-t:: -~~...... , .~ ·: ,c : ~ - ~ - - - . -~- _: __~ _ - : : : ~ : ~ - · . : - · - ~ ~ --