20010927 TZHC Mtwara

IN THE fITGI-l COURT O? .AT -- MrW..l\RA ..,,._,.--:-~... ··•·--·- 1 Ma:TIlIMONL1L APPEAL NO .. 1 01? 1998 1 (."l.rising from the decision of fVi:twara D/C Matrimonial Cause 1 No .• 1/98) / KILi..LIDI ALLY MNT:lELE .........APPELLANT versus: ZAINfillU SEL.1EVi~1.h.L MKOKO., .. .,RiBSPONDEI:JT JUDGMENT ~,::,_,.,.._,,_,~ This appeal was filed by the late KH,:\LIDI ~·l..LLY ViNW'.r:JLE before his death. He died before his appeal was determinecJ_. His son rvmsj__ KHALIDI was appointed the jrlministrator of l1i.s estate in Mj;wara Primary Coui~t Probate No. 43 of 2000. He applied orally for leave to proceed with the ,appeal 0n behalf of the deceased. His application was granted. / The facts of this case are simple.. It is in the record that the late Khalid.i ;;Uly t-1miele was employed by Ujenzi e.s a Fundi Mkuu Msaid.izi. In or a:round. '1978 he married the respondent Z,.i.Il\BBU SELl;l'-t\NI MKOKO under -Islamic rite.. By then Zainabu was a local doctor on payment. In 1995 they jointly built a house at Chikongola along Za'Ilbia Road, Mtwara Tm·m whereby on '12o 6., 95 the deceased put in ·writing the following 1·10rds :- 11Mimi Kha.rid .J... Mnwele nimejenga nyumba yangu Chikongola Zambia Road, House i:Too '1 ln-;a ushirika mimi na. mke ;rn.ngu Zainabu binti SelemaJri r·-1kolrn. Nirn.empatia hii naka.la kwa ushahidi weke Signed Kharid .u.. • Mnwele ( ..lnnexture .1)o .r In '1997 their marriage collapsed.. It was ultim2,tely dissolved by Mtwara Prima.1.\y Court c\t Nany91nba in Viatrimonial Cause No. 62 of 199? (.:;innextlu~e B)o The question of division of matrimonal assets was not dealt ·with. Zainabu filed an application before Mtwara Resident Magistrates Court praying for di vision of a single matrimonial asset narnely, the house at !Jhik~ngolao Khalid.i acl.mi tted the prayer. J.l. decision was I ~ ....... entered in favbur of Zainabu on admission~ The Court ordered -; that house or- its value ·tQ be oividecJ. between them equaily~ ·The hoi1se was .· - e!calu?-ted . .. by a Government '.Lend Valuer. i·iho· ·estimated ~ the value· ~9 . .be shsi 4,150,000/-,; Each party v.fa.s at,rnrded $hs. ,: 2 ,075,000/;..~.. :· t.{halidi was· aggrieved,.;.· H~tice this appe2l. In his memorandum of appeal he raised: 4 _grounds of appeal, namely:- 1.,. That, had the learned trial Magistrate a.ddJ:-essed his mind properly to the matter which, was_before fum he could have struck out the same being incompetent as was commenced th..rough a \\.Tong procedure as- according to ttie relevant A law, the same ought to have been commenced through a 1 \ .- :pet'i tion. ·IN' 1'Rlr iillTERN.:lrrVE BUT :.JPrEOUT PREJUDICE ·ID 'lifIE .:/ FOREGO.ING:-:- That the learned trial Magistrate seriously erred in law when: be entered judgement on admission without taking · . into consideration the fact that, such admission, on the :face_of it, did not suffice to meet the ends of justice, and therefore he ought to have enquired from the parties end sa.tisfy himself about contribution of each spouse towards the acquisition of the property in issueQ \ .3• . That the learned trial Magistrate seriously erred in law when he arrived at the decision that the property in• issue be equally divided between the spouses basing o_n a mere assumption that each spouse contributed hal.fly to-vtTards t~e a~·quisi tion of the se.me while in fact there ·was nothing in the record which tended to support that assumption. 4. That the learned trial Magistrate seriously erred in law •• f by adopting a w~ong procedure of ord.ering 7 accepting and ' . .finally acted upon ·the Government Land Valuer's Report. . ( ' . Ela.berating on these the deceased I s son Musa accepted .tlnnexture J. to have been written by his father the late Khalid .i.Uly i"Inweleo However he seid the true meaning was that the deceased had merely intended to protect Zainabu from . being . . . ~ chased a1:;ay 1tr.i. th empty hands in the event of his death.. He said she deserved only a quarter of the value of that house because she was merely a locel doctor e.s a.gair.:..st the. deceased oeco·/3000 3 viho was an .J.ssistant :fi'undi f1Ilcuuo In re.ply Zainabu replied that .::mnexture .J. speaks by itself and that she deserves hal£ because she contributed a ' lot from her local doctor activities Gnd from i".!ame. Ntilie business at Kitama. I have carefully considered the appellant's grounds of appeal and the respondent's reply. I have also CBrefully considered the overall circumstances surround.ing this caseo By virtue of section 7'7(4) and.'81(b) of the :Caw o:f Marriage ii.ct, 1971 it is allowed for a spouse to appl? to the Court for division of ma.trimonial assets .. .u petition is limited to a declaratory decree or for a decree of annulment, sep:-).re.tion or divorce as provided for under_ s. 81(a) of the Law of Marriage J.ct, 1971.. Therefore the first ground of appeal ha.s no merits and is hereby dismissede i~ fa:c as the 2nd and 3rd grounds of a::,pe8l ore concerned the answer ce.n be found in ~·;.nnexture l;.. .In that letter the deceased put it in black and uhite that th2y had acquire that house kwa ushirika. ·The plain meaning of that letter is that they acquired. that house in e<;1ual shares.. Musa I s allesation that that was a mere protection oi Zaine.bu may not be trueo Firstly, he was not the 011<2 who wrote tha.t letter .. Secondly, had intended to have the meaning which Viusa has _Seid, he would have which il'Iusa has said, he would have said so. Musa I s allegation that since his father ,·w.s a Fundi ff.1kuu Msaidizi he probab2.y contributed more to1;rnrcls theo acquisition of that house than the responc_ent who was a mere house ,-iife performing herbalism,_ may be true and. may also not be true. History can bear 1vit11ess to some civil servants 1.·ri.th big names but earning less than a local doctor.. In the present case there is nothing indicating that the deceased was earning more than -the respondent who i:.-,as a. local doctor on pe. yment and 'l...:r:i th some Mama Ntilie activities. l1.t any rate if the decea,sed had intended the respondent to g$t less th2.n himself he would h2. ve said so.;. He knew the respondent contributed ouite a lot towards the acquisition of that house, and that is why he meil.e it very clear in .Annexture ,:l that that house was acquir2d kwa ushirika between theme It is not normcJ. .for local doctors of Zainabu' s type to list dmm the amount of money contributed on every occassion .. In fact this is not limited to loccl doctors only.·, M2I.JY spouses while still in love hardly list 4 down the amount of contributiono Going through the record, it is observed tha.t, in whe..t the deceased termed as nwritten statement of defencen ·he ad.mi tted almost everything materi all;y o Even after ;Zainab-µ had adduced her evidence he e.dmi tted each and everything .. ' His only quar:i;-el was only as to how m·uch he uould get as his share.. Since he had not disputed the contents of c1nnexture .:. · ·which had been served to him vd. th the Chamber summons, there was nothing 1-,hich the Court could have done other than . pronouncing equ al ·s.nareso .. .;ve ~' canr..o L, ques -+-. 1 vJ.on ·c.1.1e ..L ...., u.ecease I d ffL,'- this stage a.s to why he decided to build that ·.ho.use in _equal she.res because he is not with us.. Graves do not tal].,;:. ii.s far as the L:-th ground of appeal is concerned, there is no ree.son M to why the Government Valuer's Report should not be trusted. Musa could. not elaborate on this. ~ i ttedl;y ,. I have observed some proced.urcl irregularities in the proceedings of the t1~i2l Courto However the;y v-rere mere procedural irregularities 1,-1hich did not cause mw :failure of justice to either parties. It is upon the above reasons that I hti.ve beE::n of the view the.t this appeal has been lodged. without sufficient 6 rouncls.. It is hereby d.ismissedo Each party to bear his or her costs of t"his appeal .. Ju""IJGE 21,.902001 Delivered in the presence of both parties this 27th day of September, 2001 before me:- 27 .. 9.,2001 R/.l explained. ··,:, D J.c 27.,9.2001 .......