20200528 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 134 OF 2015 (Appeal originating from District Court of Ila/a at Samora Avenue in Matrimonial Cause No. 12/2011) FRUDENCIA MARCO NJAGAMBA .................................... APPELLANT VERSUS THEOPHAN WILIAM BILEHA ....................................... RESPONDENT JUDGEMENT Date of last Order: 22/05/2020 ',\ Date of Judgement: 28/05/2020 MLYAMBINA, J. The appellant and the respondent contracted Christian marriage in 1989. They were blessed with four issues namely Hyasinata, Yunis, Mwami and Wilma who were aged 23, 22, 18 and 11 years old respectively in the year 2011. On March, 2011 the appellant herein petitioned against the respondent before the District Court of Ilala at Samora for the following relief (s): a) This court to declare that the marriage between the petitioner and the respondent be dissolved and decree of divorce be issued. b) An order of equal division of matrimonial assets between the petitioner and the respondent. 1 c) That custody for the issues of marriage be granted to the petitioner until they attain age of majority. d) The respondent be ordered to pay maintenance of Tshs 500,000/= per month. e) The respondent be ordered to pay arrears of maintenance allowance at the rate of Tshs 500,000/= per month from August, 08th 2010 to the date of judgement. f) The respondent be ordered to meet all medical and education expenses for the child when needed. g) Costs for this petition be granted. h) Any other relief (s) as the court deems fit and proper. In his defence, the respondent raised a counter claim and prayed inter alia that he is the lawful owner of the family properties and five children to be under his custody as the petitioner deserved nothing. He also prayed for an order of perpetual injunction against the petitioner, her agents and others from disturbing the respondent, general damages, cost and any other relief (s) After full trial, the court decreed as follows: The decree of divorce be issued, the petitioner to be given one house at Tabata Changombe/ the house of Kinyerezi should remain as family home. The issue of marriage may 2 continue to stay there on their own choice the house at Tabata also should remain as matrimonial propeey, one house at Tabata which is given to the petitioner should not be sold or disposed in any way. In the event one of the spouse dies will revert to the children as their family home. The respondent has responsibilities to maintain his children until they will have their means of survival on their own. Each to bear his/her own costs. The appellant being aggrieved by the judgement and decree of the District Court of Ilala at Samora avenue lodged this appeal on three grounds: 1) That, the trial Magistrate erred both in law and fact by granting an order for divorce and failed to resolve the real issued of division of matrimonial assets. 2) That, the trial Magistrate erred both in law and fact by ordering the house at Tabata Changombe to remain matrimonial properties and the house of Tabata Kinyerezi to remain a family house while the divorce has been granted. 3) That, the trial magistrate erred in law and fact for not specifying the amount of money that the respondent has to remit as the maintenance of the issues of marriage. 3 Wherefore, the appellant prayed this honorable court to grant the following orders: i) To quash and set aside the judgement and decree of the District Court trial Magistrate Honorable Hassan SRM dated 4th March, 2014. ii) To grant the order of equal division of all matrimonial assets jointly acquired. iii) To grant order for the respondent to provide Tshs. 500,000/= --~ per month be!ng maintenance__for the_issu~ of marrift_ge. --~ ~ - iv) Costs of this appeal be provided for and any other relief (s) that this honorable court may deem fit to grant. The appeal was orally argued. The appellant appeared in person. The respondent was represented by Counsel Magreth Ringo. As far as the first ground of appeal is concerned, the intriguing question is; whether the division of the matrimonial assets was properly and fairly done. The appellant told the court that in their marriage lifetime they acquired a plot at Tabata and a plot at Kinyerezi. There are houses on those plots. The appellant lives at the Kinyerezi house with the issues. The appellant went on to argue that they also acquired other properties including two motorcycle and utensils. The appellant prayed the house at Kinyerezi and at 4 . Tabata and the two motorcycle be auctioned and the proceeds be shared. -In reply counsel -M:agreth submitted _that the -appellant was-~- mere _ house wife. She should explain how much she contributed. Thus, divorce does not mean that a person should be homeless. Counsel Magreth maintained that the appellant was a mere house wife with 1 no any source of income. But the respondent sold his house at -~Kigoma-and-cam.e_to_b.ui.l.d_tbe_bo_use_at Kiny_~er'--"e=z-=---=---i.___________ I have considered the arguments of both parties and perused the records of the lower court. It is evident from page 5 of the typed proceedings that the appellant testified. We had houses at Kigoma which he sold they were two..... At page 8 of the proceedings, the respondent testified inter alia. ...I had a plot of land at Kigoma. During the subsistence of our marriage we acquired assets. I constructed a house at Kigoma on those days in 1990 the house was complete.... between 2003 -2005 I constructed two houses on those plots within the fence. At Tabata Chang'ombe there are four house two are big and two are small ones... 5 =r,·,w It is the findings of this court that the property at Kigoma which was later sold_ was not the sole property of the respondent. It was acquired or developed during subsistence 0f marriage of the parties herein. As such, the appellant had her domestic contribution towards its development. Therefore, the appellant cannot be counted a mere· house wife. Even if she was, her domestic contribution entitled her with the 50% share of the properties. --------1-entirely--agree-witb_s_e__Qi_9r_~9-~r:!~~I Mag rettT-Ringo-that-ElivGr:ce._______ _ \ --------- does not mean to be rendered homeless. However, thefacflna_t________ _ the appellant lives with the issues at the Kinyerezi house, there was no good cause and it was unjust for her to be kicked out of that house. For that reason, I nullify the division order of the matrimonial properties issued by the trial court. Instead, I order the property at Kinyerezi be of the appe-llant and the property at Tabata be of the respondent. With regard to the motor cycles, there is nothing in record to establish that the two spouses in their marriage life acquired such properties. To answer the second ground of appeal, I agree with the appellant that after divorce decree was issued there was no legal requirement of pronouncing the property at Tabata as matrimonial 6 J -·- - --- - - ;!_t•, property. However, the order issued while addressing the first ground has done justice to this ground too. On the third ground, I find no need_ to waste time because all the four issues have attained majority age, Indeed, as argued by counsel Magreth, there is no practice of almony in Tanzania. To conclude, the appeal is upheld. The order of division of matrimonial properties issued by the trial court is nullified and set -asia~The-proper-ty-at-Kin¥erezi_is___given to the appellant. The ---- property at Tabataisglvenro-tne~respondent-;--Gosts-be _sbar_ed_.___ ------ JUDGE 28/0 Judgement pronounced and dated 27th may, 20202 in the presence of the appellant in person and counsel Agness Lyatuu for the respondent. Right of Appeal explained. MLYAMBINA GE 28/05/2020 7 i