20080916 TZHC Dar es Salaam

/L IN THE HIGH COURT OF TANZANIA AT MTWARA DC. MATRIMONIAL APPEAL NO. 2/2007 (From the Original Matrimonial cause No. 9/2006) HAMISI BAISA IMBILA - - - - - - - --- - APPELLANT Versus MAGRETH GEORGE MUNYU - - - - RESPONDENT Date of last order: 03/07/2008 Date of Judgment: 16/09/2008 JUDGMENT MJEMM°AS, J. The appellant Hamisi Baisa lmbila filed a petition at the District Court of Mtwara (Matrimonial Cause No. 9 of 2006) S_eeking the following reliefs (as stated, in the petition); a) The declaration that the marriage between the parties herein has irreparable broken down. r, b) This Honourable· court is order of di',orce (sic) to be issued in respect of the marriage between the p2rties hereinabove. c) Division of fVlgtrimonial properties. d) Custody of children be granted to the petitioner. e) Costs of this suit, and f) Any other order(s) and or relief(s) this Honourable Court may deem just and equitable to grant. .I ._.. 1 l ---- After hearing the parties and their witnesses the District Court declared the marriage between the parties as irreparably broken down and ordered that the custody of all three issues of the marriage ·• to be with the respondent, that is the mother. It also divided j• :,Matrimonial property,:between the parties,and ordered the appellant to pay Tshs.100,000/= each month as maintenance of the children. There was no order as to costs of the suit. The appellant was aggrieved by some of the orders of the District Court so he preferred this appeal. He has put forward five point memorandum of Appeal which states as follows: 1. That the Learned Magistrate erred in law and fact by holding that the deep freezer be given to the Respondent while it was bought by the appellant under loan at Tunakopesha Ltd. on 15/07/2005 the time which the parties were separated and the appellant is still deducted from the appellant's salary. 2. That the Learned Magistrate erred in law and fact by holding that the appellant have to maintain the children at 100,000/= every month while his salary is only Tshs.185,000/= per month. 3. That the learned Magistrate erred in law and fact in holding that the custody of the children be placed to the respondent. 4. That the Learned Mag:strate erred in fact and law by holding that the joining the house (sic!) situated at Nyasa street at Masasi as a Matrimonial asset while it was built by the appellant's father to his grang daughter called Shablina Hamisi Baisa. 2 1 5. That the Learned Magistrate erred in fact and law by dividing some Matrimonial properties to the Respondent while she sold other Matrimonial properties of Masasi for her own benefit. The appeal 1s resisted by the Respondent - Magreth George Munyu. At the hearing of the appeal both parties appeared in person and un-represented. Both parties did not have much to say or to add to elaborate the memorandum of appeal and reply to the memorandum of appeal respectively. In response to questions asked by the court both parties said that they were still employees of Prison's Department/Service. They also informed the court that their two daughters who are twins are 18 years old now. One of them, namely Hamida is in form four at Ndwika Secondary School while the other one Amina is at home. She failed form two examination and they were still looking for a place to send her for studies. The other daughter called Mwanahamisi was said to be in standard six at Lilungu Primary School. _ I will deal with grounds of appeal number 1, 4 and 5 together because they all relate to the division of Matrimonial property. The law governing division of assets acquired between the parties during their marriage or relationship by their joint efforts is provided for under section 114(1) and (2)(b) of the Law of Marriage Act, 1971. Section 114(1) provides: 3 S.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" And section 114(2)(b) provides; "In exercising of the powers conferred by subsection (1), the court shall have regard - (b) to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets: In the case of BIBIE MAURID V. MOHAMED IBRAHIM [19"89] TLR 162 it was held that: (i) . ... .. [not relevant] (ii) there must be evidence to show the extent of contribution before making an order for distribution of matrimonial assets. (iii) Performance of domestic duties amounts to contribution towards such acquisition but not necessarily 50%. When the trial court was considering division of matrimonial property between the parties in this case the following transpired; 4 Q COURT: The case is coming for the determination of other prayers after the marriage between the parties has been irreparably broken. RESPONDENT: We have three houses, one is at Nyasa West Masasi, another is in Wapiwapi Masasi another MKpaunda village Masasi, one banda of business at Masasi, two shambas at Masasi at Mkpaunda village. One Radio, Freezer (1 ), Cupboard, 2 matresses - one 4 x 6 another 5 x 6 fts, one bicycle. PETITIONER: The house at Nyasa West Plot No. 79 is not our house, it is the house of my daughter Shabrina, she inherited it from her grand mother. RE:SPONDENT: · ·The house at Nyasa 'vVest is ours we built together in 2000. PETITIONER: I don't know the third house in the village about shambas but they were sold in 2000. But when we came to Mtwara we came with-utensils, two mattresses, in. 2005 I found the renters and the utensils were not there, other things were distributed after we were separated, other things were bought by my friends. In dividing the property the Learned Resident Magistrate said, I quote her: 5 (j "The petitioner to be given one house at Nyasa West as that house was acquired during the subsistence of marriage in 200 (sic!) and the evidence that it was for petitioners daughter is denied by the court because that child is not legally known· as the marriage between the petitioner and respondent was known as the marriage between the petitioner and respondent was monogamous one as per both annexures filed by the . petitioner and respondent i.e Certificate of marriage, one shamba at Nakapunda village in Masasi, one mattress (4x6), A bicycle and a radio. Nevertheless the respondent to take the following assets, one house at Wapiwapi street in Masasi, one shamba at Nakapunda village, a deep freezer a cupboard and 5x6 matress. " The appellant is now contesting the order of giving the petitioner the house at ·Wapiwapi street in Masasi District- and a deep freezer. What is clear from the record of the case and as shown hereinabove there was a dispute or differences between the parties with regard to the house at Wapiwapi street in Masasi. According to the appellant the said house is not part of the Matrimonial assets acquired jointly and that the house belonged to his daughter called Shabrina. The Learned Resident Magistrate rejected that claim or argument on the ground that the said child was not legally known as the marriage between the parties was monogamous. With due respect to the Learned Resident Magistrate I think that, that was a misdirection. My reasons are; first, if the respondent claimed that the 6 - -- ---------- --·------ � --- a _house was acquired by them [Petitioner and Respondent] during their marriage by their joint efforts she was required to bring evidence to prove that. Section 110 of the Evidence Act, 1966 provides; "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 exists." From the record of the case there is no such evidence which was adduced by the Respondent apart from the general statement that "the house at Nyasa West in ours we built together in 2000." Even when the Petitioner was giving evidence he said that they managed to acquire one house during the subsistence of the marriage but the Respondent did not cross examine him on that point. My second reason is that in addition to showing that the house was acquired during the subsistence of the marriage the Respondent was also required to show that it was jointly acquired. At least she should have shown the extent of her contribution towards the acquisition of the house in dispute. It does not matter whether it was direct monetary contribution or domestic services, refer to the case of MOHAME D ABDALLAH V. HALIMA LISANGWE [1988] TLR.197. My third reason ,s that, to the best of m"y knowledge, and morality apart, there is nothing wrong in law for a married man or married woman to purchase property or build a house for his or her child who was born out of wedlock. I understand that a parent of 7 --------- - --• ··-- - --- ---- ----·-- such a child is under a legal duty to maintain the child. The only exception is that such a responsibility ends with the death of the father and the child has no right to inherit the property or estate of his •.,. ' .·• . ' <. (4 late, father unless steps were taken to legalize him/her. Reference may be made to the case of VIOLET ISHENGOMA KAHANGWA AND JOVIN MUTABAS V. THE ADMINISTRATOR GENERAL AND MRS. EUDOKIA KAHANGWA [1990] TLR 72. My fourth reason is that the house in dispute was referred to as "Nyasa West Plot No. 79" that suggests that the house is in a surveyed area and must have a title deed or such document. If that is the case then the document should have the name of the owner of the plot. I thought the Respondent should have produced such a document to show that they jointly own the plot or rather it is owned by one of tl�em. No such document was produced. It is my humble opinion that had the Learned Resident Magistrate directed her mind to the law and issues raised above she would not have reached to the same decision. In other words she would not have held that the house at Nyasa - West Plot No. 79 is a matrimonial property jointly acquired by the parties. I therefore uphold ground four of the appeal. With regard to the complaint concerning the award of the deep freezer to the Respondent I find that it has no merit. My main reason is that the Appellant did not raise this issue when the court was dealing with the division of Matrimonial property and I have no reason to interfere with the order or the 8 - Learned Resident Magistrate. That takes care of ground number one of the appeal. have considered ground number five of the appeal but I am not convinced that it has any merit at all. The Appellant is complaining that the Respondent sold some of the Matrimonial property for her benefit but he has not produced any evidence to support that allegation. As I said earlier, section 1 10 of the Law of Evidence Act, requires a person who asserts something to prove it. Now coming to the issue of custody of children. The Appellant is complaining as to why the Learned Resident Magistrate gave the Respondent custody of children. It is my humble opinion that the Learned Resident Magistrate directed herself properly on the issue of custody of children. Section 125(2) of the Law of Marriage Act provides: 1 25(2): "In deciding in whose custody an infant should be placed the paramount consideration shall be the welfare of the infant and, subject to this, the court shall have regard to - (a) the wishes of the parents of the infant; \:· tf (b) the wishes of the infant, where he or she is of an "t'\ age to express an independent opinion; and (c) the customs of the community to which the parties belong. 9 In deciding on the custody of children in this case the Learned Resident Magistrate said, I quote; " . . . , .. - according to the evidence given by the Resp9ndent, it has been highly considered that the children in this case lived with their mother in all the time of separation and they also dared to give evidence against their father. Therefore to me in considering the welfare of the children in this case, they will stay with their mother. " As stated earlier, the trial Magistrate correctly addressed her mind to the requirements of the law. I have gone through the evidence of DW. 2 Amina Hamisi and I am satisfied that the relationship between the Appellant and his children was not quite good so the. trial Magistrate was correct to give the Respondent custody of children. With regard to the amount of money which the appellant was ordered to pay maintenance for the children the court record is not clear on the grounds or criteria which was used by the Learned Resident Magistrate to award it i.e. Tshs.100,000/= per month from his (appellant's) salary. The appellant has attached- his salary -slip to his memorandum of appeal but at this stage I cannot admit or consider the same. Under the circumstances it is difficult for me at this stage to interfere with the said order of maintenance· because there is no evidence which would help me to do justice in the matter. Another thing is that orders of custody and maintenance of children 10 ., expire when the infant attains eighteen years old. Section 132 of the Law of Marriage Act, 1971 provides; S. 132 "Save where an order for custody or maintenance of an infant is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the infant of the age of eighteen years. " From the proceedings of the case two issues were born in 1989. These are the twins namely Amina Hamisi and Hamida Hamisi. That means when the orders of custody and maintenance were made in June, 2007 they were approaching 18 years old. Whatever the case, the orders stood as given until when they reached eighteen years old. The other infant/issue was born in 1995 ·, so she is still under 18 years. It is my humble opinion that the issue of maintenance should go back to the trial court to re-consider it on the basis of evidence from the parties. The court may, if it deems it fit and in accordance with the provisions of section 136 of the Law of Marriage Act, 1971 seek advice of a Social Welfare Officer on the matter. This appeal therefore succeeds in part :in accordance with the following orders. 1. The house in Nyasa - West Plot 79 Masasi is not part of Matrimonial property jointly acquired by the parties. 1I 2. The house at Wapiwapi Masasi to be divided equally among the parties or sold and proceeds to be shared equally by the parties. 3. The matter is remitted to the trial court to consider the issue of maintenance of children on the basis of evidence from the parties. The court may, if it deems fit seek advice of Social Welfare Officer. 4. The claims of deep freezer and other property alleged to have been sold by the Respondent are hereby dismissed. 5. Order of custody of children to remain as passed and of course subject to the Law of Marriage Act, 1971. 6. Each party to bear his/her own costs. Order accordingly. G.J.K. MJEMMAS JUDGE 25/08/2008 Order: Judgment to be read over on 16/09/2008 by the - -- c.:c:··,J {; �-:�)�·�,. -;�- -- Qist-rict/A8ting-DistriGt �egistrar--,-HJgh.C.ourt .of Tanzania, / ··,.. ·�:-.. '·.,,--c:1, · '1- ' Mtwara Zone. G.J.K. MJEMMAS JUDGE 25/08/2008 12 j I __ ' '#,· :�· ' ...,..... Coram It Before: M.R. Gwae, AG.DR. Appellant } Respondent - Present Court: The matter was scheduled for delivery of Judgment and it is ready. M. R. G�AG. DR. 16/09/2008 Judgment read over and explained to the parties in Chambers this 16th day of September, 2008. M. R. �. AG. DR. 16/09/2008 Right of appeal explained. Order: Judgment be typed and each party to provided uppn payment of proper court fees. M. R. 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