20010608 TZHC Dar es Salaam

_i .i .. IN THE HIGH COURT OF TANZANIA. ATDAR·ES S.A..LAAM . . I · CIVIL APPEAL NO. 45 of 2001 . GULYAMOHAMED .............. APLLICANT I ' [ VERSUS AHMED MAKAMO .. .. .. .. .. .. .. RESPONDENT I I I JUDGMENT . BEFORE N. P. ICTMARO, J. . ' I Before this court is an appeal by Guliya Mohamed. She is ~sking this I' court to reverse the judgment of the District court·which granted her only 5% of the matrimonial properties jointly acquired and order an equal division. I ' ,:,, Guliya filed a petition for divorce in the-.J)istrict Comi of Kinondoni. She also asked for custody and maintenance of the issues of the marriage as well as division of matrimonial assets and payment of edda. The respondent ,. was/is Ahmed Makani.o. What is on rec_ord is that the parties went through a process of contracting an Islamic marriage at Lindi in 1983. The parties moved to Dar --- es Salaam in 1984 and cohabited together until 1999 when they separated because of a big misunderstanding and problems between them. The· t ~ -c- - ~ -=--:: .,;._ -- r- respondent had issued 'tal~k' to the appellant. The parties have three issues ,.- ~~___,__ ' -·-~,.,._=· -- - - -:o-_.'::'::.-::.-::.-::.-::.-- . ; -. .• '!'- ~- :.,..._--.;. ·- --- - -· ---------------------£ Cr_ .- , ~c·~-~•~- - - - - - 2 - [ I [ of the marriage born in 1983, 1988 and 1991 respectively. The appellant's ' marriage to the respondent was a second one. Her first marriage had other · [ children too. [ The matrimonial Proceedings in the District Court were filed by the [ appellant after the respondent ~1ad iss1:1ed a talak to her. [ Two issues were framed: [. (1) Whether the marriage has broken down beyond repair. [ i Ii (2) If the answer to the first issue is in the affirmative r: [ What reliefs are the parties entitled to. I [ ' From the pleadings filed by the parties;, they were not at issue on the r- .__ que.stiq11 o( the breakdown of the marriage. Tli'ere was no need for· the trial magistrate to frame it as an issue. He could proceed to declare the marriage r=~-:-:.- ·. broken down beyond repair on the famous authority of the case ofButiku V [ ' - Butiku. . - -~- ,-___ .... c:-_·, On the issue of custody, the trial magistrate gave custody to the respondent because the children were above seven years and their father had ~------- l:-:-~-~_ '· .: ..- ,~............. _....,_~_ •;• a job and so he could maintain them whereas the petitioner had no particular business to guarantee her financial ability to maintain the children. The trial L--=-<--~ [. . .. r 3 I magistrate quoted section 125 of the Law of Marriage Act, 1971 to ! support his finding saying that that is the spirit of section 125. l After granting the cu~tody of the children to the respondent, the trial I magistrate said there was no need to issue an order for maintenance. I[ Regarding division of matrimonial assets the trial magistrate ii. observed that the plot on which the matrimonial home was constructed was purchased before the marriage but the construction was carried on during the 11] subsistence of the marriage and.so she contributed towards its construction. I She was awarded only five percent with an explanation that she failed to elaborate on the contribution she made towards the acquisition of the I matrimonial house. The trial magistrate did not make any finding on the prayer of payment for "Edda". I. ' . ~:.- ...._• ,,., .. -c·, . ~ . -~--Th~, appellant was aggrieved by the decision of the trial court particularly on the division of matrimonial assets and hence this appeal. 1 Her ground of appeal is only one. She is faulting the decision of the I trial magistrate of giving her only 5% of the matrimonial assets. She says I this decision contravened section 57 and 114 of the Law of Marriage I Act 1971. During the hearing of the appeal, the appellant emphasized her ground I .- of appeal. The appellant denied that the plot on which the matrimonial home is constructed was bought before the marriage. She said it was bought 4 t_ ~..--~..,.,.... .. I--- - .-- :·=o..=-"'"-'~-'..>,...... in 1984. This is a fact which is also contained in the judgement of the --=-___.,,__-~ I District Court and also the evid~nce of the appellant. It is not clear to me why the.h·ial magistrate contradicted himself in the judgment by saying that I the respondent purchased the plot before marriage while the marriage was contracted in 1983 and the plot purchased in 1984. , Learned Mr. Mjindo Advocate who represented the respondent both at the trial and in this appeal admitted in his submission that the appellant made a contribution towards the acquisition of the properties but said she failed to show the extent of her contribution. Mr. Mjindo also raised the question of 200 bricks and 30 corrogated iron sheets which the appellant had questioned and submitted that the house is still under construction and so they were used and that the corrogated iron sheets were told for purposes of getting school fees for their children. ';, ;Ji .I' Regarding other properties, Mr. Mjindo said the appellant had collected them. He relied on two documents which are annexed to the I !' answer to the petition saying that they are evidence that the appellant collected the properties. He then made a prayer that the appeal be dismissed. I stated at the beginning of this judgn1ent that the appellant was .· aggrieved by the 5% shar~·which was given to her. The tr·ial magistrate said - 5 she was only entitled to 5% share because she did. not' show her extent of · fll ~ contrjbution. This was repeated by the learned Counsel for the respondent :31 during the hearing of the appeal. ~ Cl] However, a thorough go through of the proceedings, particularly the evidence of the appellant and that of the respondent, one can nof see the Dl . . G.L justification for the trial magistrate granting the respondent 95%· share and the appellant 5% share. The reason is very simple. In the evidence Ell given by the respondent he does not mention anywhere the extent of his OJ contri~ution towards the acquisition of the matrimonial assets. The appellants evidence on the other hand, was that after they pµrchased the plot [] at Mbagala in 1984, construction of the house started on the same year and [] she was helping her husband through a business of "Mama Ntilie" and they shifted into the house in 1995. During cross ~xamination by the Learned ~ □ Advocate 1500/=. for the respondent, she said she was,.getting about T.shs 1000/- to □ With the evidence of the respondent who did not show his cont1ibution at all towards the acquisition of the matrimonial house, he was J granted 95% while-the appellant who made an attempt to show how she contributed towards the acquisition of the matrimonial house, she was granted only 5% with a remark that she failed to show her extent of -, I: contribution. Ll 1 d - 6 - J Where is fairness is this decision? With greatest respect to the trial , I J magistrate the decision is discriminatory and a reflection of stereotyped concepts of the roles of man and woman. There is no other explanation J which can be given to justify the decision of the trial magistrate. The J appellant was given 5% division because she is a woman and women are taken to be inferior in all resp~cts to men. J , The Constitution of the United Republic of Tanzania bars _j discrimination. Article l 3(i) is very precise. It reads and I quote: J All persons are equal before the law . J and are entitled, without discrimination J to protection and equality before the Law. J ,:' 'I · Article 13( 1) of our Constitution is a reflection of Aliicle 7 of the _J Universal Declaration of Human Rights . .,e ~ . ··~· .. . . .. -----....,-- It is expressly provided by our Constitution on chapter 1 Part II · ~~... ,•. Article 9(f) that State Authorities and all its agencies are to direct their policies and programs towards ensuring that human dignity is preserved in '-"•"'•· ~--·- ~~~=: - accordance with the spirit of the Universal Declaration of Human Rights. B~~; or-~"......... , The Convention on The Elimination of all Forms of Discrimination Against Women (CEDAW) which was ratified by our country on 17TH July, - 7 - tr· I 1980 require state parties to abolish discrimination against women by □ embodying the principle of equality between men and women in the National Constitutions. There is Article 12(1) of the Constitution in place. The article reads: □ All human beings are born □ free, and are all equal D Again, Article 15 of CEDAW require State Parties to accord women L equality with man before the Law. Article 13(1) of Our Constitution caters for the same. Having demonstrated what the Constitution of the United lJ Republic of Tanzania requires and the decision which was given by the ! Disttict court it is clear that the decision is not fair but it is discriminatory ' lJ because Article 13(1) of the Constitution was not observed. •.i I' I' ,, lJ f: \ l Ir, The trial magistrate ought to have d;bded the case on the basis of the' IJ '\ evidence which was on recond and not to decide the case on the stereo type ccmcepts of roles of men and women. Why should a man who never gave ~- e\'idence at all on his extent of contribution be given 95% share of the tJ matrimonial house and a woman who attempted at most remotely to show her contribution be given only 5%. Obviously, no justifiable explanation IJ . can be given under the circumstances. IJ The appellant complained that the decision of the trial magistrate IJ contravened section 114 of the Law of Marriage Act. She is right. The LJ D Ll- I 1 .. ~ - ·-~- . - 8 r- t section clearly guides the court on matters which should be taken into consideration when granting an order for division of th~ matrimonial assets. l Among them is the extent of contribution made by either party in money, pro'pel'ty"and work. This was totally not considered. She also complained t that the decision is contrary to Article 13(1) of the Constitution of the United l Republic of Tanzania anq I haye shown how. f , Under the circumstances, the order of the trial magistrate which granted the appellant only 5% share as her contribution towards the I acquisition of the matrimonial house can not stand. I set it aside. Since the respondent did not lead any evidence at all and the appellant led evidence I only remotely I will substitute the order of division of mattjmonial assets_ I with an order of equal division. of the matrimonial house. The matrimonial house to be valued by a Government Valuer _in the presence of both the I . ~ . appellant and the respondent. After the valuatJon, each party to be at liberty . ·... '.'· .. ''·'-"··''·•1:. ,.· ." . ~ I to pay the other half value of the house. In the··event that this option fails to work out, the house to be sold by public auction and the proceeds to be I shared equally between the parties. I The appellant has also complained that there are other matrimonial I. assets which included utensils and other house up-keepings, 30 iron sheets c~-~. and 200 cement bricks. Mr. Mjindo Advocate responded by saying that some of the properties namely utensils and house up-keepings have been F~~- ,1;r--·:,;.,:.,._, collected by the appellant. He relied on documents annexed to the answer to :::=:· • C . -.=-:__ :: the petition as evidence that the appellant received them. With greatest I ~~ -~--- ......___ .. , ~';l'l,..;k, ... ;,.~-~:-._:- -~ w-.·-~··--£~~-..- l;H·t~, :; . . I ;---- :;,. •·~ [J -;'-- - 9 - I. 0 respect to Mr. Mjindo, those documents were not tendered and admitted in court as exhibits nor do they show anywhere that the appellant signed them u acknowledging the contents of those documents . She is therefore entitled to the utensils and house~ up-keepings as well as 15 iron sheets and 100 IJ cement bricks which the respondent is said to have sold without consultation I I' IJ with the appellant and to have ysed for th~ construction, again without consultation with the appellant. [f I thus allow the appeal by the appellant and set aside the order of the 0 District Court on the division of matrimonial assets and substitute it with an 0 order as indicated in this judgment. O· Much as I would have wished to comment on the remarks made by 0 the trial magistrate when granting custody to the respondent, I refrain from doing so because the appellant did not appea~· against the said order. c·. C,..:,c,c::,:f.-e l~_- W- N. P. Kimaro JUDGE 8/6/2001 ... r ~ _. . • -·• --•.·- --~~ ·-- ..