20151203 TZHC Dar es Salaam

~IN THE HIGH COURT OF TANZANIA l'.· AT DAR ES SALAAM PC. CIVIL APPEAL NO. 18 OF 2013 (From Matrimonial Civil Appeal No. 7 of 2012. Bagamoyo District Court) MARIAM MASHAKA ........................ APPELLANT v. SALUM JUMA.......................... RESPONDENT Date of last Order:............... 20/10/2015 Date of Judgment: ............... 3/12/2015 JUDGMENT Shangwa, J. This appeal arises from the decision of the District Court of Bagamoyo in Matrimonial Civil Appeal No. 7 of 1 2012 which- originated-from-Matrimonia-1 Cause ·No. 40 ·of - - - 2011 at Mwambao Primary Court in Bagamoyo. The parties to this appeal got married on 6th July, 2007. They contracted an Islamic marriage. During the existence of their marriage, they were blessed with two children. On 22 nd August, 2011, the Appellant petitioned for divorce at Mwambao Primary Court in Bagamoyo and prayed for an order of division of the matrimonial assets and maintenance of children, two in number. On 8th October, 2011, the Primary Court of Mwambao at Bagamoyo dissolved their marriage and ordered that the matrimonial assets composed of households should be divided between them and that the Respondent should 2 give the Appellant Tshs. 50,000/= per month as maintenance for their two children and that the matrimonial house should be given to their children under their mother's care and that when they grow up the house should remain to be the children's property but under their father's care. The Respondent was not satisfied with the decision of the Primary Court of Mwambao. He appealed to the District Court of Bagamoyo against part of the said Primary Court's decision on the following grounds: 1. That the trial Magistrate misdirected himself in finding that the house which was built by him should be owned by the children. 3 2. That the trial court erred in law by giving Judgment in favour of the Respondent {Appellant) without having properly evaluated the evidence. 3. That the trial court erred in law by disregarding admissible evidence. After hearing the appeal, the District Court of Bagamoyo confirmed the decision of the Primary Court of Mwambao which ordered that the matrimonial house should be given to the children of the marriage between the parties but slightly reversed the Primary Court's decision that the matrimonial house should be under their mother's care during their infancy, and ordered that it should be under their father's care during their infancy 4 onwards. The following is what the District Court Magistrate observed and I quote: 11 According to Section 129 (1) of the Law of Marriage Act Cap. 29 R.E 2002, it is the duty of a man to maintain his infant children by providing accommodation, clothing, food and education, it is equitable for the house to be under the care of the father as he is the one who toiled in constructing it as such it will be taken care same for repairing it... " The Appellant before this court was not satisfied with the decision of the District Court of Bagamoyo. Hence this appeal. She engaged the legal services of Capt. Sanze, 5 Advocate to represent her before this court. Capt. Sanze, Advocate advanced two grounds of appeal namely: 1. That the District Court erred in fact and law by granting the house to children and putting it under the care of the Respondent. 2. That the District Court erred in law by not ordering the house to be divided amongst the litigants as it did to other matrimonial assets. As it can be seen, both grounds of Appeal are intertwined. So, I will determine them jointly and together. The appeal was argued by way of written submissions. In his written submissions, counsel for the 6 Appellant Capt. Sanze contended that no good reason that has been shown by the District Court of Bagamoyo of granting the house to the children under care of their father. He said as the house was acquired through joint efforts of both parties, a fair way is to sell it and the proceeds of sale be divided equally. He said, at any rate, according to law, it is a man's duty to maintain his children. On the other side, the Respondent contended that the courts below could not have given an order that the house should be divided equally because the Appellant did not contribute anything in its acquisition. That he bought the plot at Kidongo Chekundu Bagamoyo with his own money and built the house in issue on it without any contribution from her. That the Appellant is a troublesome woman who 7 used to spend most of her time doing nothing except gossiping until when she deserted him and went with his children back to her parents. The question which arises from the 1st and 2nd grounds of appeal which are intertwined is whether or not .the District Court of Bagamoyo erred in fact and law by granting the matrimonial house to children namely Nuru ·Salum Juma and Sauda Salum Juma and putting it under the care of their father (Respondent) instead of ordering for its sale and division of the proceeds of sale between them. It is not in dispute that the matrimonial house was given to the children by the courts below. The District Court partly did uphold the decision of the Primary Court 8 of Mwambao . which decided that the matrimonial house should be the property of the children and should be registered in their names. By so deciding both court's below did not err in fact or law. As a matter of fact when the marriage between the parties was dissolved by the Primary Court of Mwambao, the parties had two infant children called Nuru Salum Juma and Sauda Salum Juma. At the moment Nuru Salum Juma is about 8 years and Sauda Salum Juma is about 7 years. All of them need to go to school and get assured accommodation. However, due to the fact that the marriage between - their parents has broken down, the Respondent who is their father is likely to marry another woman and get 9 .. other children with her. He may love them more than his children who were granted the house in issue by the courts below namely Nuru Salum Juma and Sauda Salum Juma. If that happens, the two children may find themselves going without their essential needs. Their saviour would be the house in issue as it may be rented and the rentals would be used to cater for their essential needs. Now let us look at what the law requires the court to do where the marriage between the parties has broken down irreparantly when there are infant children such as it happens to be the case here. Section 114 (2) of the Law of Marriage Act Cap. 29 R. E. 2002 provides inter-alia that in deciding as to how much the parties should get from the matrimonial assets, the court should take into 10 .. -- - - - - consider-ation the- needs_of the _infant children. This is what - - . - - . - - -- .. - - -- - ·- -- - the Primary Court of Mwambao in Bagamoyo and the District Court did by granting the matrimonial house to- them. Thus, the District Court of Bagamoyo did not err in law in upholding the Primary Court's decision of granting the matrimonial house to the children. The said court took into account the need of the infant children which is correct in law. For sure, in case this court sets aside the decision of the District Court of Bagamoyo which partly upheld the decision of the Primary Court of Mwambao which I decline to do and order for the sale of the matrimonial house as prayed by the Appellant so that the proceeds of sale are shared between the parties their two children are likely to go without their essential needs in their station in life. 11 Therefore, I uphold the decision of the District Court concerning the matrimonial house's fate and as to who has to care for it on behalf of the two children as of now until when these children have reached the age of majority. This disposes of both grounds of appeal which fail. Finally, I dismiss this appeal with costs. A.Shangwa JUDGE Respondent. A.Shangwa JUDGE 3/12/2015 12