20170825 TZHC Dar es Salaam 1

' .,. ' 'l ~ " .. ' . (~: IN THE HIGH COURT OF TANZANIA DA~ ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 137 OF 2017 (Original from Matrimonial Cause No. OB of 2015 Ilala District Court) GEORGE MHANDO NYUNGU ................. 1t .PPELLANT VERSUS HADIJA RASHID .. ;;.......................• I ".'' Date of the last order 11:fh August 2017 Date of Judgement 25h August 2017 SAMEJI, R. K, J ,~;;~ The appellant herei~ pas,i~ge tsto challenge the decision of .. 1~,j~ •,;;?¾, Ilala Distri .,(,❖• ···ttt':· 2016 in respect of Matrimonia • :,~~e .. ?$~; .$1,:fu For gJrpo'se(t f~---~~;a., t ✓;•:~a,r1~..-~ rs ·.•:~11~9 the gist of this appeal, it is necessary to ~~~ . . ~ give;:;· e follow • !i, ba · ~~ound. The appellant and respondent co~tracted ge in 1988 and were blessed with six (6) issues. They . . jointly acquired several matrimonial assets which included two houses in Dar es Salaam and one House in Handeni together with matrimonial households. The appellant testified also that he had another wife by the name of Magreth IVlkomwa, where he got three children, but they had family problems. In 1985 he decided to marry the respondent. Civil Appeal No.137/2017 S(qn: ...~ : ........ R. I<. Sameji, f 1 It is on record that, the appellant and the respondent lived peacefully and harmoniously life till 2012, when misunderstandings between them started. The main reason for the said misunderstandings was due to the fact that, when they have four children the appellant started to tell the respondent not to bear more children but the respondent did not listen to him and they continued to have more childrenA~lihe respondent also ' said she was not accepting to have abortion God and having children is blessings. It was also reported that the app"~ ;WVcirds the i):,,~ icafl;Y,4.tortur~d her. That she went several days and . n:~ ~:.t···~ respondent, harassing her and in a~~I , e1, , · .· d'\~op~rly with her ch1l~ren because th~ a p ~ h~,(;e _st'<!lJi)~d to mamtam them. She assisted in construction ~ · all th ., o h · , ses in Dar-es Salaam in a hard way as she was pi\inan whe sai , r:tlisunderstanding was reported to ·1 · . . ~~.,.Y,r~~ c-.., ,1;,, .•_1• ..- .JJf.B d h t · d t O SO Ive th e f amt y mem,derSt~~!paW:9;>. OABJJaJi!~fV oar W O rte ~ , matter, but l,:,ou ~- · ccess; In . d a Petition for Divorce before Ukonga Priman rt. A.~ r~~II trial the trial court decided the matter in the ~ favour :espondent. However, due to continuation of , " s, cruelty and harassment from the appellant in 2015 the respondent lodged a fresh petition before Ilala District Court and after a fully trial the District Court issued a divorce and ordered that:- Civil Appeal No.137/2017 s;yn,f-=········ R. K. Sameji,/ 2 ---~---- - -------- (a) The respondent herein deserves 30% and the appellant __ _ deserves 70% in the two houses located in Dar es Salaam in one plot; (b) The respondent herein be given at least two rooms for staying with her children while waiting for execution; (c) The house that is located at Handeni Tang, · ·. ? the appellant herein and will be use ".. (d) · Sewing machine be in possessftJ~ ig her daily basics; (e) Children shouA (f) The appellan ce of the said children at the onth apart from medical s. ; 1 :- at de ~ion of the trial court, the appellant filed this '<~- "❖:(,.;' app ~ . Is , . thirteen (13) grounds which after being challenge the division of matrimonial assets and the . 100,000/= which was ordered for the maintenance of the At the hearing of this Appeal, the appellant and the respondent appeared in their personal capacities, unrepresented. I have observed that, the appeal though a matrimonial in nature was submitted on a Memorandum of Appeal and not in a Petition of Appeal as required by section 81(a) of Civil Appeal No.137/2017 S i g ~..... R. K. Sameji,J 3 the Law of Marriage Act. However, taking into account that the appellant ________ _ is a _ l_ay pe~so11 w_ith_~ no !egal _repr~sentation,_ I _,hereby invoke the - provision of Article 107A o_f the_Constitution and proceed to consider the merit of the case. In his submission the appellant prayed the Court to adopt his grounds of appeal as they do appear in the Memorandum of Atteal and he started giving a brief history of his life. That, in 197~:, con~~! d a Christian marriage with one Margareth Mkonwa they ~ tree children. In_ 1985 problems started Then the appellant decided to m in 1988 under . Is. Th ey have I~~ customary ntua 1\J6f tog ., - r · ~ were blessed with six (6 .- : The appellant ex , isunderstandings started in 1999 when fart using family planning for the purposes on . The respondent was not happy with t -~id to quarrel. In 2002 she gave birth to •> the i_n in .:to7 to the sixth child and that was when the The appellant asked the respondent to , go to Handeni, but she refused to-date. He at the trial court the Magistrate did not analyzed all these evidence and hence arrived at the erroneous decision. He as well complained that, the amount ordered for maintenance of the children is on the high side and prayed the same to be revised by this Court. Civil Appeal No.137/2017 Sign:-~--- R, K Sameji,J 4 __Jr:t response the resp_ondent spiritedly __ argue_ci th_a_t,_ she_ wa.s .de.ceiyeg b't ____ _ the appellant-because when she was married she was a -very young woman who was just starting life. She came to live with the appellant · - and she discovered that he had three children. They however lived peaceful though difficult life as the appellant was too economical. She also explained that, she contributed hardly to the cct~uction of the two houses in Dar es Salaam trusting that they ar for the1:rt(uture, but only to discover that the appellant was harassin . he 1\)1. ev ,. ·. fter getting her entitlement before the Disill!Jrt, Cou\ t -),C ·•f is still giving her all the trouble of prose~lll · thi · ase. ~, admitted though that, it is true at some point t ~ er to stop giving birth to children but sh ~ r a blessings from God. She finally prayed . t ~;fjlat she is entit_led . . "::• ,I.&. ...~:,. Having digested th· m1ss1ofi e pleadings and the record of ~~etwfiln issue for determination at this before me is meritorious. As · maintenance of the children, I must say that,Wt~he law 125 (1) (2) of the law of Marriage Act, (supra) ·--~~ry,.~j'War_ that, in determining the issue o~ c~stody, the paramount co~erat1on shall be on the welfare of the child. In addition, Tanzania has ratified the UN Convention on the Welfare of the Child, (CRC), 1989 and domesticated the same by enacting the Law of the Child Act, No. 21 of 2009. The main objective of this Act, among others, is to stipulate the rights of the child and promote, protect and Civil Appeal No.137/2017 s ; g n , ~ · - · R. I< Same;;, J 5 -maintain the welfare of a child with a view to giving effect to international and regional conventions on the rights of the child. Section 4 (2) of the Law of the Child Act, (supra) provides that:- "The best interest of a child shall be the primary consideration in all actions concerning a child whether undertaken by public or private social welfare institutions, court or administrative bodies" {8,pphasis is mine). See also section 7(1), 26 and 41 of the same law. In his submission, the appellant had · .a··cisio -;, court on the custody of the children tha ,; it wasi':wn,. ;; g ~,place them under the custody of the respondf(ff~~G:au ,_ ,he \, nnot take care for ,&, ~,@@; --··. ·•:;h ~ them and specifically the educatfen. If~as 1- ,;J ~r. hat, if placed under his custody he will be ab.(f~up~ .Jl~St them accordingly. f.§ ~ The respondent, OQ.~the ~~~ Iner ha- 1{,~;;,hi_;e ;!{~pporting the decision of the -~{' • ,_ w trial court, she - ye~ftlis ~:wrt to gralilt the custody of the children into her hands, sh ; ad -"rj~e,n Ii · with the said children for all that period "en t~ ;,:e1J~'1ed th~m. She thus prayed this Co~rt to ord · he ap -~llan·. -.::;:,;:,-.. t0 "\~ pay for the maintenance, as he has not paid for "'it~. -❖~ the s· :m,e since 2:012. '-1<-{, Being gui~eJe above principle and provisions of the law cited herein, and the fact that, since 2012 the said children were under the custody and care of the respondent, I will not disturb the decision of the trial court. See the case of Celestine Kilala and Halima Yusufu v Restituta Celestine Kilala, [1980] TLR 76). Civil Appeal No.137/2017 S ( q ~ ..... R. K Sameji,J 6 - The appellant is however, required by the law to maintain the said children and pay for their school fees as per Section 129 of the Law of the Marriage Act, (supra) and also Section 26 of the law of the Child Act, (supra). Section 129 of the Law of Marriage Act, (supra) provides that: " ... it shall be the duty of a man to maintain his children ~ whether they are in his custody_or t/Jlt~usto_dy of any other. person, either by proif!j~ th~ with such accommodation, clothing, food~nd?&. 1Jliti.n. . · 'Y be reasonable having regard to his ntea11s ~ . £ , . ion i9 life or by <w,,._,., "'®,., ' ~%:.~~ ~~ paying the costs thereo( [E~~-A· :~?.adGleg]. Therefore and pursuant to !':. ~ r ~ n s ·.,,e law, the trial court was justified to place ttlcustod ,a~ctii~n into the hands of the respondent and or,®ering,te a~, l~..@t td\rovide for their maintenance and school fee ,,.. Now, co ivision of matrimonial assets, I must say ~@:::!,$respondent toiled and hardly contributed to the •@0nstructi , of •,'-:·iwo houses in Dar es Salaam it was not proper for t'lti::ial court,;, div~·de the said two houses by giving the respondents only t~Ji;, "same. The respondent has six (6) children living together with her in the said houses. If the petitioner is given only 30% of the division it will not be fair. Pursuant to Section 114 of the Law of Marriage Act:- Civil Appeal No.137/2017 S ( g ~ . , .. R. K Same/I,} 7 "the court shall have powe~ when granting or subsequent to the grant of a decree of separation or divorce/ to order the division between the parties of any assets acquired by them during the marriage by their Joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of the sale' It has featured on record times without ·respondent has fully contributed in the construction of J\~bouse r es Salaam. Before the trial court sh s ~Well ~- ··. ~n-eff .'\ •itnesses to .. testify on this matter. On the ot nt nev.er disputed ., that fact before this Court. It is therefore prudentWlo note. i~,-~ afl,~:,.Tantariia has ratified the. UN ~?.$, ~ :::z~ ~.-.,❖ -w Convention on th< limF~ation' , · Jb Fd'r1$is of Discrimination Against ~». Women, (CED W"-.,a J~•- ~tocol f the African Charter on Human W~men in Africa A~ticle ~ of the 2 and People·:;.. ighf1~.tne.. Right Mapu -~~~o~vlel~i~ -~I:· ~ly that "in case of separation~ _divorce or ann., ..ment ~=:,arr-ta e/ ~en and men shall have the nght to an WA '< • . . equiffgle sha1r;g · r: the joint property deriving from the 1 marri7/I"'' [Em . fasis is added]. In addition, see also Article 16 of the CEDAW, (supr . 1 G.A. res. 34/180, 34 U.N GAOR Supp. (No. 46) at 193, U.N Doc.A/34/46 Entered into force in September19, 1985, available at http://www.unhchr.ch/htm/menu3/b/e/icedaw.htm. 2 nd This was adopted by the 2 Ordinary Session of the Assembly of the African Union, in Maputo July 11, 2003 and entered into force in November 25, 2005. Tanzania has ratified the same on March 8, 2007. See information available at http://wwwl.umn.edu/humanrts/africa/protocol-women2003.htm1 Civil Appeal No.137/2017 S i g ~ R . K.Samejl,J 8 - - - - In lhe circumstance and taking-into- account ttlat,-thetwo-houses-located- ____ _ at Airport area in Dar es Salaam were acquired and constructed during the subsistence of marriage by joint efforts of the parties it cannot be argued today thatthe respondent had not contributed to the same. It has to be noted further that, in all those years of matrimonial life the respondent herein without hesitation had used al .,., r. efforts, energy, ~ love and affection to protect and caring for ,f~ a -· . ren, while trusting and believing the appellant, that .: ; oing were for the welfare and future .. o note that, she ended up being frust nd exhausted. I am live to the submis t-- is the one who did all the contribution as r finot employed. It is my considered view th--~>,. ·_.?-. . _d 15 ·d motives geared to deprive { b ~ : : ents on the division of the said lso on record that, the appellant is the one wh I am highly persuaded and guided by the princip .. d by the Court of Appeal in Bi Hawa Mohamedi v Ally Seif LR 32 (CA) and also the High Court in Bibie Maulid Vs. Mohamed Brahim (1989) (HC) TLR 162. That in determining contribution towards the acquisition of matrimonial or family assets every case must be decided in accordance with its peculiar facts and circumstances. Furthermore, in Victoria Sigala v Nolasco Kilasi PC ~=~::~,~:'. 3 ~:,~al No. 1 of 2012 HC lringa (unrep~'"~~~~~~~~.~;,~ 9 \ - _. - statea-arpa--ge- a-of-th-e-Judgment-and I-quote:- - - _ __:__ - - - - - -· . "Indee~ there is no fast and hard rule in deciding on the amount of contribution and division of the matrimonial assets. Where the matrimonial assets were acquired during the happy days of subsistence of marriage and in the Joint efforts of the spouses there-is no need-of requiring one spouse to g1. · vidence-to show the extent of his/her contribution. Th should automatically proceed in eq alter. Considering the above preceden-' in the respondent's submission. Sin ·~tributed towards the acquisition of matr" r efforts, energy, love and affection to p Jlppellant and children for the welfare of th nmands that, all parties should the matrimonial assets. In th . nd fo -~ foregoing reasons I have endeavored to pro pa •t· · llowed. I hereby partly uphold the decision oft · $ in relation with (iii) (iv) and (v) at page six (6) dgement. However, for the issue of maintenance of ;vision of matrimonial assets, I declare that:- (a) The appellant shall allocate eight (8) rooms to the respondent and her children, from the two houses located at Karakata area in Dar es Salaam. The respondent will use some of these Civil Appeal No.137/2017 S i ~..... R. K Sameji,J 10 - - - rooms- for rent- and obtain-- cash- for the maintenance of- herself and the children; (b) As the custody of children will continue to be under the custody of the respondent, the appellant is entitled and should be accorded right to see or visit them, unless such arrangement interferes with their calendar or programme; (c) The appellant is hereby ordered to . ~ .. fees of his children as per Marriage Act, [Cap 2 (d) I make no order , ,. shoulder his/her "?'ii,~ • own costs. It is so ordered. August 2017. " JUDGE _• Chambers in the presence of the Appellant and the Respondent. A right of Appeal _-l-\-.~:::,,,_ JUDGE 25/08/2017 Civil Appeal No.137/2017 S i g ~ .... R. K. Sam,;,1 11