19971216 TZHC Dar es Salaam

~\ ').-;>:',. ~ ,..~ l/6~':l-d IN TH:i; HIGH COURT OF T;...NiP,NIA (DAR .i!.:S SALA.i,i"i DIS'l'RIC'J: REGIS'rRY) AT Di.R .c;3 SALAAM (PC) CIVIL APP.SAL N0.18;1 OF 1995 1''ATUI1A JUMA MA.SAGA ocoo.ooooooooooooooc~ooouooo APPE.LLAN'l' v.SR3US MOdi-\.Mf:D YUSUFU MAJUMBU 00000000000000000000000 RBSPONDBNT JU .D G ME N T In Magomeni Primary Court, the present ci.ppellant, Fatuma j"uma Masaga, petitioned for dissolution of .the marriage between her and the respondent, Mohamed Yusuph Ngimbu I maintenance, and a decla- ration that a house built by the parties or one of them belongs to hero 0 The trial. coui-t wa.s s;;1.tisfied tho.t the m~riage between the parties had broken down irreparably. It accordingly dissolved the marriage. The trial court further ordered tha.t th8 respon.Jent shall pay the petitione::r Shs.5,000/= per month as maintenance, and Shs. 10,000/= as '·past cornpens,ition ... With regard to the.plot and the house built on that plot, the trial court held tliat both belonged to the appellanto The.respondent was dissatisfied, particularly with the trial court's finding that 'the plot and the house belonged to the appellant, and so he.appealed to Kinondoni District Courto That court upheld the decision of the trial court as to th-:, dissolution of the marriage and the orders of maintenance and compensation .. But it held that both the plot and the house were properties of the respondent, and that· the appellant was entitled to y., of ito 2 The appellant was aggrieved with that part of the judgment regarding the pl "'>t and the house; hence this appeal·. The appellant's evidence was th.:.;_t the parties contrac~ed a marriage in 1990a 1'hereafter, the respondent gave her a plot on which she later buiJ the house with her 01:111 money which she earned while she was working as a sales clerk in the NationaJ. Milling Corporationn She produced a receipt showing that she had at one time bought building materials for the constru- ction of that house. 'l'he respondent, ori the other hand, testified that the ot in dispute belonged to him, and that he built the house him.self. He produce a document showing that the plot belonged to him. He added that by the time he marri,:'!d the appellant in 1990, '?5?f> of the house had been constructed. I have carefully perused. the records of both courts beJ.ow avid I have in the end been satisfied that the evidence of the respond.ent was cogent and reliable. I a.rn, accordingly, in agreement with the findings and conclusions of the first appellate court: the respondent produced a document showing that h<:) is the owner of the property in dispute, that is, House Nd.100 on Plot No.201, Kigogo - Dampo, Dar es Salaam. The mere fact that the appellant bought building materials is not .sufficient to prove ownership of piece of land. The respondent, I run satisfied, is the owner of the plot and the d.isputed house. To what, then, are the parties entitled. vis-a-vis the house' The respondent conceded that by the time the parties contracted their marriage, the house in dispute had not yet been completed. The appellant, therefore, must be talten to have contributed, to some e;(tent, to the acquisition of that house during the subsistence of the marriage between the parti0sQ What, then,was the extent of the appellant 1 s contribution'? In assessing the appellant's contribution to the acquisition of the house, I have accepted. as a fact~ as found by the first appellate court, that by the time the parties contracted their. marri&ge in 1990, 7516 of the ho·1 ~ had been completedo I have also taken into account that the appellant has been granted Sns.5,000/= per month as maintenance, and Sns.10,0C0/== as · past comp.:::ms-~tion·; o I have further ta.ken into account the fa.ct thc,t the marriage lasted hardly five ye,rrs. 3 Eaving considered the foregoing fa. c_tors, I am in agr2ement with the first appellate court thz.t the appellant is entitled to a quarter of the value of the house in dispute as her contribution to its acquisition. I note, however, that nei th0r the trial court nor the first appellate court enquired into, or :nade, a finding on, the question as to the monetar7 value of the property in dispute. It is accordingly directed tha.t the tria~ court should receive evidence, preferably from an indep•;;)ndent valuer, in the presence of the pa.rties, end tnen determine the value of that property so th,;t the appellant I s actual rnonetary entitlement is e.scartained.. ·i ~ In sum, this appeal fails a.i.'1d so is hereby dismissed. I lijake no order as to costs. I !' I I·•::• B. De CH!PJ:BTA JULJG.ii; 0 R D E R This judgment sh811 be certified to Kinondoni District Court for delivery to the parties. . . / ... . . ·! . : . / .-·: . B. D. CHIF1~TA JUDGE AT Diill BS SALAAM 16TH DEGEJviBER, 1997