20071123 TZHC Arusha

\ l IN THE HICH COURT OF TANZANIA i • I AT ARUSHA CPCJ CIVIL APPEAL NO. 30 OF 2005 £Original District court ARUSHA Civil Appeal NO. 57 OF 12004) Originating From ARUSHA Pr. court Matr. cause No. 5412005 JAFARY 0. MACEA .. APPELLANT - versus - ROSEMARY B. MPUNCA .. RESPONDENT JUDCMENT BWANA, J. 1. The parties' marriage was dissolved and a decree of divorce granted on 17 March, 2004. The causes for the irreparable breakdown of the marriage were given and accepted by the trial court. They include the Appellant herein changing religion from the one under which the parties contracted their marriage in 1991. Other causes are desertion, 2 cruelty and adultery. All seem to have been proved to the satisfaction of the trial court. Divorce was granted. The custody and maintenance of the two issues of that marriage was granted to the Appellant herein who already had the two children under his custody. Division of the matrimonial property seems to be the basis for the first appeal and this subsequent one. 2. In this second appeal, the Appellant seems to dispute the division of the property acquired during the subsistence of the marriage, particularly the two houses allegedly built during the subsistence of the said marriage. The Appellant raises two main grounds namely- 2.1. That the courts below did not take into consideration the provisions of section 114 (2> (a> (b> (c> of the Law of Marriage Act No. 5 of 1971 It 3 - ' when determining the distribution of the said properties. 2.2. That since the Respondent herein was a mere house wife, she is not entitled to be given one of their two houses as she did not contribute to the construction of that house. 3. Both courts below found that the Respondent was entitled to a share of the property acquired during the subsistence of the marriage, her real monetary contribution, notwithstanding. I do concur with that conclusion. There are two main reasons for this, both covered by the Law of Marriage Act. First and foremost in the welfare of the children born of that marriage. It is well settled that the welfare of such children is of paramount importance. In granting custody, maintenance or division of matrimonial property, paramount consideration should be - how will that decision cater positively for the children? 4 sections 125 and 126 of the Act elaborately protect the interests of such children - when it comes to custody and maintenance. Both the trial and first appellate courts, did take the children's needs into consideration when dividing the two houses - one to the Appellant and the other to the Respondent. The main guiding factor for such decision is clearly stated by the first appellate court thus:- ,~ ......... that the respondent was entitled to a share of the properties since she has lived with the appellant For 9 years.......morever she is entitled to a decent accommodation where she can accommodate her children when they come to visit her.. ..... " consider the above to be good and sound reason for awarding the respondent the second house. The trial court was even more categorical. It stated in its judgment thus:- /I 5 "Mdaiwa anatakiwa apate mahali pa kuishi na siyo akaangaike, kwani kuna wakati pia watoto watamtembelea hivyo ni Jazima waFikie sehemu ambayo ni jasho la wazazi wao.......... " 4. The second reason is the now well settled principle that a party is entitled to a share of property realized during the subsistence of the marriage, the nature of her contribution notwithstanding. The much celebrated decision of the court of Appeal in the case of Bi Hawa Mohamed vs. Ally Sefu <1983> TLR 32 CA settled the matter on this aspect. I do note that one of the grounds of appeal is that the trial and first appellate courts did not comply with the provisions of section 114 <2> ca> <b> <c> of the Law of Marriage Act. However, the Bi. Hawa case <supra> is but a clear interpretation of that provision of the law. / 6 s. confusion may have arisen as to which house the Respondent was entitled. However, analytical interpretation leaves no doubts as to which house should be given to the Respondent. There are two houses only. one is allegedly occupied by the Appellant and the children. It was p_,r:anded as a family house <or homeL That leaves the other house - wherever it is situated, be it at Arusha or lfakara. Therefore, my decision on this issue is that the Respondent is entitled to that house which is not occupied by the Appellant as a family house <homeL so it is Ordered. 6. In conclusion, this appeal fails. It is dismissed with 7 Date: 23/11/2007 Coram: s. J. Bwana, J. For Appellant: Present in person UDC1: 23/11/20 SJB/jn. { (