eliester philemon lipangahela vs daud makuhana 2005 tzhc 147 25 february 2005

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 139 OF 2002 ELIESTER PHILEMON LIPANGAHELA......... APPELLANT VERSUS DAUD MAKUHANA.................................... RESPONDENT HJDGMENT ORIYO, 3. The appellant, Eliester P. Lipangahela, was married to the respondent, Daudi Makuhana, under Christian rites in 1992. Their marriage was blessed with two issues. Problems crept into their marriage and the appellant petitioned for divorce, custody of issues, maintenance and equal division of matrimonial assets. The trial court dissolved the marriage, granted custody of one issue to each party, ordered the respondent to pay shs,19,000/= maintenance per month and the Petitioner to collect the rent of 4,000/= from one of their tenants. The appellants claim for equal distribution of matrimonial assets was not granted and that forms the basis of the appeal. The parties in both courts were unrepresented; they appeared in person. The appeal contained two grounds of appeal but when consolidated, the trial court is being faulted for failing to consider the appellant's contribution and grant her a share of the matrimonial assets; in the form of three houses. On perusal of the Kisutu Resident Magistrate's Court judgment in Matrimonial Cause No.104 of 1998; it is obvious that the the learned trial magistrate (3. Magere, RM), dismissed, the appellant's claim to equal distribution of matrimonial assets for 3 reasons. The court held that the appellant failed to adduce evidence on the extent of her direct, financial contribution to satisfy the requirements of Section 114(2) (b) of the Law of Marriage Act, 1971. Second and third reasons are interrelated in that the Court held that the appellant deserted the matrimonial home and left the respondent and the issues of the marriage alone. It was also held that when the appellant deserted the respondent, she took away with her some household items without notice or approval of the respondent. With due respect to the learned trial magistrate, she was in obvious error by requiring evidence on the extent of direct, financial contribution by the appellant towards the acquisition of the assets. There is uncontroverted evidence of P w l, Pw2 and Pw3 that the appellant, in addition to her housewifely duties she also engaged in the business of selling "bums" and "vegetables". By making this requirement against the appellant, the trial court contravened the letter and spirit of SECTION 114 (2) (b) and (d), the Law of Marriage Act and the various interpretations made by courts in decided cases. SECTION 114(2) provides : "(2) In exercising the power conferred by subsection (1), the court shall have regard - (a) ................................. N/A (b) to the extent of the contributions made by each party in money, property or work .toward the acquiring of the assets; (c) N/A (d ) To the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards q u a lity of division " (emphasis supplied). Under subsection 2(b), the law recognizes spouses contributions in terms of money, property or work. The appellant's contribution towards the acquisition of matrimonial assets was in terms of work, that is, including household chores, bearing and rearing of children, making the home comfortable for the respondent and the issues. In addition to her domestic duties, the appellant engaged herself in the sale of buns and vegetables. Undoubtedly, whatever the appellant earned in the business, it went into the maintenance of the family and the assets. The matrimonial home at Ukonga Kipunguni was built during the marriage of parties and qualifies in law as a matrimonial asset acquired by the parties joint efforts; the appellants contribution being partly in the form of household chores and indirectly in monetary terms. The other two reasons why the trial court disqualified the appellant from a share of the matrimonial home were desertion and mismanagement of the assets. Again, here, the tnal court was carried away by the respondent's statements. In his Answer to the Petition filed on 19/4/1999, the respondent averred in paragraph 6 thereof that the appellant, the issues and the respondent himself were still living together at their matrimonial home at Kipungun, One wonders where the trial court got the notion that the appe an deserted the respondent since April 1998; which clearly contradicts respondent's own contention above. On the ap p ela n ts mismanagement of household assets, it was an allegation o e respondent which was not supported even by his witnesses. e other two reasons advanced by the trial court were unsubstantiated and of no evidential value. The appellant is not guilty of desertion, mismanagement of assets or any misconduct; on the evidence on record. The trial court erred on this. The appellant referred this court to the cases of B I HAV^ M OHAM ED VS ALLY SEFU [1983] T LR 32 and MOHAMED ABDALLAH VS HALIMA LISANGWE H 9 8 8 ! TLR !9 7 « r t Of her entitlem ent to a share of the matrimonial assets I am m to agreement with her that the two decisions are good law the cortinn 114 of the Law of Marriage meaning and the parameters of Section 114 or Act. Pursuant to the provisions of Section 114, Law of Marriage Act and the above cited court decisions; the appellant is entitled to a share o f the matrimonial assets. The trial court made a finding there was only one matrimonial property (house) at Kipungun, where the parties lived. The house at Mahenge, the parties home area, was at first alleged by the respondent to have been bu.lt for the us the respondent's parents. But later on in the proceeding , respondent alleged that the house had been destroyed by h ea^ rains; so it is not in existence . The third house located nea TAZARA was, according to uncontroverted evidence on record, by the respondent for his girl friend, one mama Theddy. The house was built during the marriage of the parties. Can this house be construed to be part of the matrimonial assets because the money used by the respondent to construct it was money diverted from th fam ily's coffers; being the respondent's contribution ? The tna cou ordered that the appellant was to collect rent of shs.4,000/ rom one of the tenants. Though I highly doubt the sustainability of the arrangement in the long run, but the record is not clear as to which house the rent was to be collected from. W as it from the Kipungun or TAZARA house. If it is the latter, then it is part of the matnmon,a assets; making a total of two houses. Each party was granted custody of one child. Taking into account the surround g circumstances and in particular the needs of the children, I will award each party 50% share of the matrimonial assets. Each party is r “ buy out the other by paying 50% value of the house(s) as to be determined by a government valuer. In the event of in ab ilityto uy either out, the house(s) are to be sold and the proceeds of sale to equally divided among them. The appeal therefore succeeds and is allowed. The trial court decision, on the division of matrimonial assets is faulty and is set aside. The appellant is awarded the costs of the appeal. Before I conclude, I wish to place on record the fact that the above judgm ent was determined on merit notwithstanding t e provisions o f Act No.15 of 1980 which amended Section o f th Law of Marriage Act which deals with appeals in matrimonial matters. I am conscious that an appeal is a creature of statute and this courts powers to determine the appeal is derived from Section 80 above Act 15 of 1980 does not provide for appeals from the courts o Resident Magistrate to this Court. Notwithstanding the amendment the concurrent jurisdiction of Resident Magistrates Courts and District Magistrates Courts was left undisturbed by the amendment above. I is the view of this Court that the situation created by the amendment mUst have been a result of an oversight, typing error, etc; on the part of the draftsman. Obviously the omission to provide for nght appeal from the Resident Magistrates decisions could not e intentional or deliberate as it contravenes the rules of natural justice and Article 13 of the Constitution of the United Republic of Tanzania, 1977, as amended. It is time the legislature took steps to rectify e anomaly. Having stated the above, it is accordingly ordered. K.K. Oriyo JUDGE 25/2/2005 25/2/2005 Coram:S.A. Lila — DR For the Appellant - Present in person For the Respondent - Present in person CC: Emmy of both parties judgm ent delivered today in the presence Order: person. S.A. Lila nTSTRICT REGISTRAR 25/2/2005