fatuma seif ngosali vs juma omary mwandwi 2022 tzhc 15673 27 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC CIVIL APPEAL NO. 24 OF 2022 (Arising from the decision of the District Court of Temeke at One Stop Judiciai Centre at Temeke in Matrimonial Appeal No. 02 of2021 and originating from Matrimonial Cause No. 77 of2021 at Mbagaia Primary Court) FATUMA SEIF NGOSALI.......... ..................... APPELLANT VERSUS JUMA OMARY MWANDW1.......................................RESPONDENT JUDGMENT Date of last order: - 25/08/2022 Date of judgment: - 27/10/2022 OPIYO, J. The appellant herein aggrieved by the decision of the District Court of Temeke at One Stop Judicial Centre, at Temeke in Matrimonial Appeal No. 02 of 2021 delivered by Hon. Mpessa A. E, SRM on 13th May 2022, appeals against the whole decision on the following grounds; 1. That, the District Court of Temeke at One Stop Judicial Centre, at Temeke erred in law and fact for failing to order equal division of i matrimonial properties obtained during the subsistence of marriage. 2. That, the District Court of Temeke at One Stop Judicial Centre, at Temeke erred in law and fact for failure to quash and set aside the decision of the Mbagala Primary Court which stated that, the appellant is to be given 20% of all the matrimonial properties without regarding her contribution in obtaining such properties. 3. That, the District Court of Temeke at One Stop Judicial Centre, at Temeke, erred in law and fact for failure to quash and set aside the decision of the Mbagala Primary Court which stated that, the respondent to provide maintenance to both issues of marriage to the tune of 100,000/=Tshs monthly without considering that such amount is not enough for maintenance of Mudathiri Juma (7 years) and Omary Juma (15 years). 4. That, the District Court of Temeke at One Stop Judicial Centre, at Temeke, erred in law and fact for failure to give an order to the respondent for providing basic needs such as education, clothes and healthcare to Mudathiri Juma and Omary Juma. 5. That, the District Court of Temeke at One Stop Judicial Centre, at Temeke, erred in law and fact for failure to recognise that the Mbagala Primary Court failed to evaluate and analyse the evidence of the appellant especially on the issue of maintenance, division of 2 matrimonial properties which led to unjust decision on the part of the appellant. ! This appeal was however heavily resisted by the respondent in his reply by denying all the grounds of appeal. On 25th August 2022. In this appeal, both parties appeared in person. This appeal was disposed by oral submission on 28th August 2022. Arguing for the appeal the appellant stated that, the division of matrimonial property is not fair as the respondent has been given 80% while the properties were jointly acquired. That, the respondent lied when he stated that she found the house already in place when they married. She also argued that, she is the one who have been living with the children since the respondent left. She submitted that when they got married the respondent was not employed and she was the one who found him a job from her’relatives. Above all, the appellant stated that, the respondent has not even paid the said 100,000/=Tshs which he was ordered to pay, he sometimes provides for some amount of money complaining the hardship of life and she has been tolerating, but now the situation is tough to both of them. She prayed for the court to make respondent provide the 100,000/= Tshs as already ordered. He should also take care of medical bills, education, and clothing of the children. Resisting the appeal, the respondent stated that, he bought the property in 2001 and got married in 2004 and they were blessed with two issues, but during survey the appellant wrote her own name instead of his. He owned the plot on which the house was built, and he had already built two rooms at the time of their marriage. He further developed the property when they were together as they had a shop which she was handling while he was working.1 That is how they joined funds in 3 renovating the house. So, to him, the 20% that was granted by the trial court is proper as her contribution is only limited to the renovation of the house. Regarding the issue of maintenance, the respondent claim that he was maintaining the issues of marriage, but because of endless appeals he failed to pay maintenance as ordered. He continued to state that, as of now he has no means as his salary is only 150,000/= which he has to spend himself and the children. He therefore prayed for the appeal to be dismissed. Going through the grounds of appeal, I find that grounds I, 2 and 5 can be consolidated into one as to whether the division of matrimonial properties ordered by the trial court was fair and just to the parties. Grounds 3 and 4 will also can be jointly dealt with as to whether the order of maintenance to the tune of 100,000/= is proper considering means of life of the respondent. Disposing the ground on whether the division of matrimonial properties ordered by the trial court was fair and just to the parties. During the hearing the appellant briefly stated to have been contributing to the acquisition of properties and that she was the one taking care of the family at the time when the respondent was not employed, and she even tried to find jobs for the respondent from her relatives to make him able to sustain their family. At the trial court the appellant stated that, they contracted an Islamic marriage in 2004 and they were blessed with 2 issues. They managed to acquire a house at Majimatitu through her contribution as an entrepreneur. She contributed from what she obtained from her business. During cross examination she stated that 4 she contributed on buying cement, grills, and windows, but she had no documentary evidence to substantiate he oral testimony. The respondent briefly stated that, he was the one who bought the plot and tendered the sale agreement which was admitted as exhibit XY (see page 4 of the trial court proceeding^ and what the appellant did is to develop the property and have equal contribution on the shop. The issue in controversy here is the extent of contribution and division of the said properties. It is not disputed that the parties herein married sometimes back in 2004 and the appellant helped in developing the said house. It is also not in dispute that it is the respondent who bought the plot on his own efforts and even built a two roomed house before they married (see exhibit XY). The property in question became - a matrimonial property through the said development contributed to by the appellant. In counting ones contribution, the case of BI HAWA MOHAMED v ALLY SEFU 1983 TLR 32, came out with two major factors to consider on what makes a matrimonial property, it was held that; "(i) Since the welfare of the family is an essential component of the economic activities of a family man or woman it is proper to consider a contribution by a spouse to the welfare of the family as a contribution to the acquisition of matrimonial or family assets; (ii) the "joint efforts" and 'work towards the acquiring of the assets have to be construed as embracing the domestic "efforts1 or "work" of husband and wife" 5 Thus, from that angle of domestic efforts, work of the husband or wife must be considered in acquisition of a matrimonial property. In the case at hand, the appellant claimed to have been taking care of the family and doing other works, like cooking for the family even buying things like windows, tiles and grills used in construction of the house. These factors need to be considered when ordering distribution. The position of the law is very clear that, in granting the order of division between the parties the court shall consider the extent of the contribution made by each party in money, property, or work towards the acquisition of the assets (see also section 114(1) of the Law of Marriage Act, Cap 29 R.E 2019). In the case at hand, the appellant proved her contribution through work and money from her shop business. Furthermore, the respondent does not deny acquiring the shop by joint efforts. He also does not dispute the appellant's efforts in upkeep of the family. However, it should always be remembered that all those contributions were directed in renovating the house that was already built and habitable at the time of parties' marriage. Thus, appellant's contribution was to be calculated only on the cost of renovation. That is where she could claim equal division, not on the value of the whole property. Therefore, as the value of renovation cannot be accurately extracted from the value of the whole property for equal division, the award of 20% in the value of the whole property is fair enough that I find no reasons to disturb concurrent decisions of the trial and first appellate courts. I believe the 20% of the whole property is more or equal to 50% of the value of renovations the appellant was entitled to. These grounds are therefore dismissed. 6 Regarding the second ground as whether the order of maintenance to the tune of 100,000/= Tshs is reasonable, reference is made to section 44(1) (a) to (d) of the Law of the Child, Cap 13, R.E 2019. According to the section in making maintenance order the courts shall consider fa) the income and wealth of both parents of the child or of the person legally liable to maintain the child; (b) any impairment of the earning capacity of the person with a duty to maintain the child; (c) the financial responsibility of the person with respect to the maintenance of other children; (d) the cost of living in the area where the child is resident The respondent claims that he only earns 150,000/= monthly and he has to use it for himself and maintain the family. The appellant in her submission agreed to 100,000/= so long as the respondent provides for the education, clothing and health insurance. In essence, the appellant prayers fall squarely on .what is covered by provision of section 129(1) of the Law of Marriage Act, (supra) which provides:- "Save where an agreement or order of court otherwise provides, it shall be the duty of a man to maintain his children, whether they are in'his custody or the custody of any other person, either by providing them with such accommodation, clothing/ food and education as may' be l , reasonable having regard to his means and station in life or by paying the cost thereof " 7 From the above provision in reaching the amount of maintenance, means of life of both parents need to be considered. From the records the amount of 100,000 was reached after consideration of means of life of parties as required by the provision above. And as the respondent is not the one appealing in this matter it means he is contented with the amount ordered. The appellant stated how the already struggling with payment of the amount, it will be imprudent for the appellate court to increase that amount further baselessly. It is my view that, the amount be left as per trial courts order. This is because there is no evidence on the improvement of the respondent's means of life that has been put forward before me to justify any increase. Instead the appellant is praying for an increase while at the same time stating that it is already a big struggle for the respondent to pay the amount. The appellate court can go to the detail of re-determining where consideration of means of life was thoroughly made and things remained constant. Therefore, based on the reasons which I have expounded, this appeal is dismissed and the decision of the first appellate court is upheld. Taking into account the nature of this matter being a matrimonial issue, each 8