halima rashid mdaha vs joseph laurent fundi 2020 tzhc 2252 28 august 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI CIVIL MATRIMONIAL APPEAL NO. 2 OF 2019 (C/F From the decision of the District Court of Hai at Hai in Matrimonial Cause No. 1 of 2018) HALIMA RASHID MDAHA.........................APPELLANT

VERSUS JOSEPH LAURENT FUNDI..................... RESPONDENT 21st July, 2020 & 2&h August, 2020

JUDGMENT MKAPA, J: The appellant, Halima Rashid Mdaha petitioned for divorce, maintenance of issues and division of matrimonial assets against the respondent, Joseph Laurent Fundi in Matrimonial Cause No. 1 of 2018 at the District Court of Hai at Hai. After a full trial the trial court was satisfied that the parties were married on 11th April, 1994 and were blessed with three issues until 2002 when the respondent deserted the appellant and contracted another marriage. The court therefore had to declare the marriage irreparably broken down and proceeded to grant divorce. According to the appellant's petition, the properties subject to division were;- Page 1 of 14 1. One house at Bomang'ombe/ Uzunguni, 2. A house near Filomena Club 3. One acre and a three roomed house at Mkombozi 4.15 acres farm in Handeni district Tanga with one house, 5. Four roomed house at Kifaru Mwanga, 6. One acre farm at Same, 7. Fifteen acres of farm situated at Kange, Tanga, 8. Two Motor vehicles make Toyota Mark II, and Totota Hilux From the list of assets above, which allegedly to have been jointly acquired by the parties the appellant herein, who was the petitioner at the trial court, was given Bomang'ombe/Uzunguni house and a car make Toyota Hilux while the respondent was given eleven rental rooms at the Bomang'ombe/Uzunguni house, a house near Filomena Club, one car make Toyota Mark II, 1

big generator, water pump, 100 iron sheets and welding machines. The Mkombozi house was given to the three issues of the parties namely Romwald, Salvatory and Evaline before the petition for divorce was filed, thus the court ordered the same to remain with the issues. A farm in Handeni was acquired by the villagers and the fifteen acres farms in Tanga were repossessed by the Tanga Municipal. Also one acre at Tanga and a four roomed house at Kifaru was not proven by the appellant to have been existed thus the court issued no order as to their distribution. Page 2 of 14 Dissatisfied by the trial court's decision the appellant preferred this appeal on eight grounds namely;- 1. That, the trial court erred in law and fact in deciding the house near Filomema club should remain in the possession and ownership of the respondent.

2. That, the trial court erred in law and fact in declining to order maintenance of an issue of marriage who was below eighteen years.

3. That, the trial court erred in law and fact in failing to discredit respondent's evidence on trial that the farm at Handeni Tanga was repossessed by the villagers.

4. That, the trial court erred in law and fact in failing to recognise and distribute fifteen acres of land in Tanga region.

5. That, the trial court erred in law and fact in failing to give weight to the appellant's evidence at the trial that a four roomed house and one acre farm at Kifaru do exist and were subject to division as matrimonial assets.

6. That, the trial court erred in law and fact in holding that the appellant did not pray to be given the big generator, 100 iron sheets, water pump and welding machine.

7. That, the trial court erred in law and fact in declining to order maintenance to the appellant. Page 3 of 14 8. That, the trial court erred in law and fact in declining to endorse with the number and title of the suit, the name of the person producing the admitted documentary evidence and the date of which they were produced. Parties consented the appeal be heard way of filing written submissions. The appellant was represented by Mr. Hemed Semith learned counsel while the respondent had the services of Mr. Wilhad Kitaly also learned advocate. Arguing in support of the appeal Mr. Hemed submitted in respect of 1st ground of the appeal that, the trial magistrate did agreed that the parties were legally married therefore, upon divorce they were entitled to equal share of the acquired matrimonial assets in terms of section 114 of the Law of Marriage Act, 1971. He explained further that, since parties were married in 1994 and the Filomena house was acquired in 2012, the same is subject to division. To support this contention learned counsel cited numerous decisions including the cases of Charles s/o Manooo Kasare and Another V Apolina w/o Manoo Kasare [2003] TLR 425 and Bihawa Nohamed V Ally Seif [1983] TLR 32 and prayed for the court to issue order for division of the properties in accordance with the law. ' Page 4 of 14 Furthering his argument Mr. Hemed argued that the

respondent admitted to have multiple relationships with other women thus his adultery lifestyle is what made the appellant petition for divorce hence he was not entitled to a share of matrimonial assets as it was held in the case of Bihawa Nohamed V Ally Seif [1983] TLR 32. He contended further in respect of the 2nd grounds that, the respondent neglected to provide maintenance for issues specifically PW4 (last born) aged 16 years and further that, the trial court erred in issuing maintenance orders in terms of section 130 (1) (a) (b) of the Law of Marriage Act. In respect to 3rd, 4th and 5th grounds of appeal Mr. Hemed argued that the property in Tanga which the respondent had testified that the same was repossessed by villagers as well as the 15 acre farm repossessed by the Tanga Municipal no evidence was adduced to that effect. He went on explaining that with regard to Kifaru house and one acre, the respondent lied before the court in order to mislead the court that, he was not aware of the same. As to the 6th ground Mr. Hemed went on arguing the fact that the trial court ought to have distributed the generator, water pump, 100 iron sheets and welding machines equally among the parties as the respondent admitted to possess them and prayed to be declared owner of the same. Page 5 of 14 Submitting in support of the 7th ground, Mr. Hemed argued that, the court has a discretion

to order maintenance to the appellant by the respondent since the latter neglected the former for more than 10 years as per section 115 (1) (a) of the Law of Marriage Act. Mr. Hemed did not bother to submit on the 8th ground as was unclear. Disputing the appeal Mr. Kitaly submitted against the 1st ground the fact that, Filomena House belongs to the respondent and his valid wife Monica Swai whom he married in 1986 through a Christian marriage. The court was therefore correct to give the same to the respondent since the appellant never proved their marriage through marriage certificate. On the 2nd ground, Mr. Kitally argued that the trial court clearly ordered the respondent to maintain his children who were below 18 years as reflected at page 7 of the trial court's typed judgment. Thus it was Mr Kitali's view that the court need not fault the trial court's decision Regarding 3rd, 4th and 5th grounds, Mr. Kitali contended that there was no proof of existence of the said farm at Handeni, 15 acres in Tanga and a house at Kifaru as the appellant did not adduce evidence to prove to that effect during the trial and she never objected respondent's testimony concerning the same. On the 6th ground Mr. Kitaly submitted that the appellant never prayed to be given 1 big generator, water pump, 100 iron sheets Page 6 of 14 and welding machines therefore there was no need to fault

trial court's decision on the same. As to the 6th ground, Mr. Kitali argued that the appellant is a primary school teacher, thus can take care of herself. He finally prayed that the appeal be dismissed with costs. In a brief rejoinder, Mr. Hemed reiterated the fact that the appellant was respondent's wife hence entitled to equal distribution and the respondent should maintain their issues. Having considered both parties argument for and against the appeal, I think the question in whether the distribution of matrimonial assets by the trial magistrate was proper and just. Prior to determining the merits and demerits of appeal I find it pertinent to establish whether the parties were married. It is on record the appellant testified at the trial court the fact that, they got married on 11th April, 1994 vide a civil marriage at Hai. She even attached the certified marriage certificate in her petition for divorce. On the other hand the respondent had claimed the fact that the appellant was his concubine and further that he contracted a Christian marriage with one Monica Swai on 22nd November, 1986 and they were blessed with seven issues. The respondent also produced marriage certificate and birth certificates of their issue which were tendered and admitted as Exhibit DI and D2 respectively. Wm Page 7 of 14 In deciding as to whether the parties were married or not, the trial

magistrate at page 4 and 5 of the judgment had this to say; "... The petitioner proved to have been married with the respondent particularly by providing a decision of the marriage conciliation board to the effect that it has failed to reconcile with the parties, and that the matter should be referred to the court. That shows that there was a marriage between the petitioner and the Respondent. The first issue to that effect is answered in affirmative" With due respect to the above analysis, I am unable to agree on how can a reconciliation board decision be a proof of marriage since there were two marriage certificate tendered in court. In my view since the first respondent's Christian marriage to Monica Swai contracted in 1986 still subsists and further that there is no proof of divorce, the second marriage to the appellant is void as Christian marriages are known to be monogamous. The appellant was therefore as good as a concubine as conceded by the Respondent. However, since their concubinage become unpleasant, whatever they acquired jointly is subject to division. Now turning to the present appeal, Section 114 of the Law of Marriage Act, Cap 29, [R.E. 2019] provides; '' " ' J Page 8 of 14 "114. -(1) The court shall have power, 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 sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit and (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by Page 9 of 14 joint efforts." From the foregoing legal provision it is clear the fact that distribution of matrimonial assets mostly depends on the contribution of each party in acquisition of such properties. It is on record the trial court magistrate ordered the appellant to be given one house and one car whereas the respondent was given eleven rental rooms in the Bomang'ombe/Uzunguni house, a house near Filomena Club (which he acquired with his wife), one car make Toyota Mark II, 1 big generator, water pump, 100 iron sheets and welding machines.

From the above distribution and the fact that parties were living as concubine as conceded by the respondent, my view is, the division of the assets between the parties was fair in terms of houses and cars. More so, considering the fact that the respondent had retired and he has other children, I also find it was prudent for the trial court to order 11 rental rooms to remain with the respondent for daily subsistence. The appellant also claimed that she participated fully in the acquisition and maintenance of the issues when the respondent was busy fornicating with other women thus he should not be entitled to anything. But as explained earlier the fact that the appellant is also a concubine she cannot justify pointing out a finger to the respondent. As the respondent has other issues with her valid wife giving the appellant all the assets will not be a prudent move after the appellant's issues Page 10 of 14 4S' with the respondent had been given house of their own which the appellant did not dispute this means that the respondent still cares in maintaining the wellbeing of their children. In the case of Jerome Chilumba V Amina Adamu 1989 [TLR] 117 Maina J. (as he then was) held inter alia, that; "...the Appellant's children and his wife are entitled to a share in the appellant's salary. It is unfair and unreasonable to give to one child one-third of the salary, and the

Appellant, his wife and the other three children to share the remaining two-thirds of the salary." In the above decision the court had observed that just because there is feud between the parties, it will not be fair for only the parties' issues to benefit in the distribution and maintenance if there are other children involved. In the present appeal it is on record that the respondent had other issues with other women and the appellant is aware of. Having concluded so, I find the decision by the trial court of awarding one house and one car to each party was fair and I will not fault such division. Regarding the issue of 1 big generator, water pump, 100 iron sheets and welding machines, I do not think that the trial court erred in giving the same to the respondent. Since respondent is married to Monica Swai, it was not established whether the said Page 11 of 14 properties were acquired during his marriage or in concubinage with the appellant as from the outset it seems the appellant was not aware of the same, she never pleaded them in her petition hence they cannot be ruled out to be jointly acquired properties with the respondent to warrant their division. I therefore uphold the trial court's decision on the same. As for the farm in Handeni and Tanga, since the respondent claimed that the farms were repossessed by the village and Municipal Council, he was supposed to prove on

the same as the law under section 110 (1) of the Evidence Act, Cap 11 R.E 2019 requires as hereunder:- "110. -(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist." I therefore hold that parties to make follow up on the status of the farms situated in Handeni and in Tanga and each party is entitled to equal share. Regarding the house in Kifaru Mwanga the respondent claimed not to be aware of its existence and the appellant failed to prove the same. I uphold the trial court's decision regarding the same. No division can effected thereto. On the maintenance of parties' issue, the court had this to say at page 7 of the judgment; ' J Page 12 of 14 "The respondent should ensure his children are maintained in terms of basic needs but this is only limited if those children are under the age of eighteen years, or if they are above that age they should be student and to that effect the respondent will be required to pay for their school fees" From the foregoing it is plain clear the fact that, the court did order for maintenance of parties children. The appellant neither pleaded specifically on how she wanted her child to be maintained in terms of specific amount nor established how she was aggrieved by the above order, hence I have no ground to fault the same. The

respondent had been specifically ordered to maintain them with regard to their basic needs including one Evaline, aged 16 failure to comply with the court order will be dealt with at the execution stage. Lastly, on the maintenance of the appellant, this court cannot order the respondent (a retiree) to take care of the appellant as she is employed as a teacher and not an unemployed, I believe she can be able to take care of herself. To the extent explained above, the appeal is partly allowed, with no order as to costs. zSKVaC Page 13 of 14 Dated and Delivered at Moshi this 28th day of August, 2020. S. B. MKAPA Judge 28/08/2020 Page 14 of 14