20040625 TZHC Arusha

I IN THE HIGH COURT OF TANZANIA1· • ! AT ARUSHA CIVIL APPEAL NO ../ 25 OF 2002 (C/F. Resident Magistrate Court at Anisha Matrimonial Cause No. 7 of 2002 - F. .J. Mushi -RM) ... . • I LATIFA LUKIO MASHAYO .................................. APPELLANT ... VERSUS I BUSHIRI HASSAN ................. i••·······················RESPONDENT ' I JUDGMENT Shangwa, J. On 14th May, 1992, the parties to this appeal contracted an I . I Islamic marriage at Kaloleni Mosque Arusha. Their love affairs start~d as early as 1990. On 12th May, 1991, they g!ot a female child . whom they named Awathif. By 12th May 2004 this child will be ' I 1 thirteen years old. Before their m'arriage both pa rties were doing independent business. Later after their marriage, th,by entered into a joint business of importing motor v:ehicles from ou/bai in the United ., ' Arab Emirates into Tanzania for sale. At the same ti,ne, the appellant ; was asked by the respondent to stay at home and do domestic work. She accepted to do so. i I 2 In 1997, the respondent got sick and became unable to perform his marital duties. Sexual intercourse between the parties ceased for a considerable time. On 13th March, 2002, the appellant went to the Court of the Resident Magistrate and filed a petition for divorce, custody and maintenance of Awathif, division of matrimonial property and costs. The case was tried and determined by the said court which granted a divorce decree and custody of Awathif to the appellant but maintenance of the said child by the respondent and division of matrimonial property was refused. The petition was dismissed with costs. Mainly, this appeal is against the trial court's refusal to order for the division of matrimonial properties, its refusal to order the respondent to pay for the maintenance of Awathif and its order against the appellant to pay costs to the respondent. In its refusal to order for the division of matrimonial properties, the trial court held that the properties which the appellant had been given by the respondent in form of "kitoka unyumba" after being divorced in accordance with Islamic practice, namely a motor vehicle with Reg. No. 9262 worth shs.4,000,000, Cash shs.3,000,000, the matrimonial home and furniture therein are enough and that her act of demanding more properties in court is nothing but greed. By so observing, I think the trial Court misunderstood the appellant. I do not think that the appellant was activated by greed in her move to 3 A 1, } petition for the division of matrimonial properties. It is I because of her awareness of what a married woman in Tanzania is legally I entitled to as a matter of right after judicial separation or after the marriage has been dissolved by the court of law. The issue of division of matrimonial property is governed by the provisions of the Law of Marriage Act, 1971 which the trial court was supposed to apply and enforce in this case. Under S. 114 of the said Act, the court has p'ower when granting a divorce to order for 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 assets and the division qetween the parties of the proceeds of sale. I There are two assets which the appellant claimed to have I acquired with the respondent during their marriage b~ their joint efforts. The first one is a house which is unfinished located at Sakina I area within the Municipality of Arusha. The second one is a shamba I located at Kibaha within Coast Region. I It appears from the trial court's record that the! respondent does not dispute the fact that the appellant did contribute her efforts in the construction of the unfinished house at Sakina by way of ' supervision and purchase of its building materials while he was busy ' i .I 4 doing other things outside his home. He simply says that this house I I I I I is no longer in his possession as he sold it at shs.17,000,000 to one Mohamed Abelin and Started paying his debts. He Was :silent on the shamba which the appellant claims to have bougrt iwith him at Kibaha. I construe his silence to be anl admission of the appellant's claim over it. This culminates in thel fact that th,e 1ppellant did contribute her efforts in the acquisitibn of the abovb mentioned · I I assets and she was therefore justified in laying her claims on them. I . Although, the respondent did not ch~se the appellJnt from the matrimonial home which he gave her ~ogether with, a ~otor vehicle and cash shs.3,000,000 termed as '~itoka unyumba{ yet still by virtue of the legislative provisions macle under S.114 6f the law of I Marriage Act, 1971, the appellant has 11egal right to Jshare of the i ' proceeds of sale of the house at s!kina which 1wa~ constructed l I I through their joint efforts. In the sa~e vein, the aJpellant has a I legal right to a share in the shamba at IKibaha. I order therefore that l I t I I half of shs.17,000,000 which was· rea'uzed by the /redpondent from I · the sale of the said house by him sho+ be given tci t~e appellant. I also order that the shamba at Kibaha should ~e /sold and the proceeds of sale should be divided beJeen the partiesi . Let me now go to the Second ground of appeal ihich concerns . I the tnal court's refusal to order the respondent to pay for the I maintenance of Awadhif. The reaso~ which was givbn by the trial court for its refusal to do so is that unber Islamic la~ Jchild born out r I 5 of wedlock such as Awathif is to be maintained solely by its mother, in this case the appellant. In her refusal to do so, the learned trial Resident Magistrate drew support from the decision of the High Court in the case of AMINA SAIDI VS SELEMANI AHMED MTALIKA MISC CIVIL APPEAL N0.3 of 1997 Mtwara Registry (unreported). Although it is true that under Islamic law a child born out of wedlock is considered to be a child of its mother only, and although it is true under the said law that a putative father has no obligation to maintain his illegitimate child, the case of AMINA SAIDI VS SELEMANI AHMED MTALIKA cited above from which the trial court drew support had nothing to do with the question of maihtenance of a moslem child born out of wedlock, instead, it had something to do with inheritance of some share in the estate of the deceased father by a moslem child which had been born out of wedlock. So, it was not proper for the trial court to draw support from a case which is not similar to this one even though the position is the same. Worse still, it was not proper for the trial court to apply Islamic law principles in a matter which is supposed to be governed by the 6 general law principles. Matters concerning dissolution of marriages, custody of children, maintenance of children and wives are governed by the general law. That is the Law of Marriage Act, 1971. Under S. 129 of the said Act, the duty to maintain a child by providing it with accommodation, clothing, food and education whether such child is legitimate or illegitimate is generally imposed on its father even if such child is not under his custody. This means therefore that the respondent is legally bound to maintain his child Awathif who is under her mother's custody by providing her with food, clothing and school fees. I therefore order the respondent to maintain the said child in all such respects until she starts to live an independent life or gets married. With respect to the issue of costs, I think it was also not proper for the trial court to condemn the appellant to costs. As the appellant partly won and partly lost, the trial court should have ordered each party to bear its own costs. I agree with the appellant therefore that the trial court erred in law in condemning her to costs. For the reasons I have given in this judgment, I do allow this appeal but as I do not think it is appropriate to condemn the ' r' 7 i I respondent to costs, I order that each party should bear its own costs. 1 I . j· . . A. Shanra, J. 25.6.2004 i l I I f '! 'i .I I .I I .I I l , I '' '' ,, , I