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·\ ... IN THE COUR7'fF APPEAL OF TANZANIA AT ~AR ES SALAAM (CIRAM! l<ISANGA, J .. A. s RM1ADHANI, J.A. l l!Nll MN'ZAVA~i J-~·.l .If; CIVIL A!1PEAL NO. 1- &F ::1992, ~ETWEEN MARYAM MBhRAK SALEH. • • • APPELLANT. AND ,.. A~i SALEH ABOOD• ·• • • • ·R£SPONDEN'l' ~ t. : .. (Appeal from the Judgement of th• High Court of Tanzania at ~•Salaa~t ~ i' r, ' .. t Rubal'lla, J, ) - I',;_. dated the 3eth day of "=to,ei'; 1~,,J in . ·:· fivil A12J2egl No 6 ~2 of 191l 1/ JUDGEMENT ('F THE CO~FT ~~J\VAS 1 J.A-.: The appellal'lt, Mariam Mbarak Saleh and tho "spondel'lt, A•eld Saleh Anood·, were marrfed on 23·., 7-.. 78. 'l'hey have "'nl! '"'4,", ~h1ld named Fathiya. On 5/8/8, the responden·t f1l~d a petit.ion for divorce aefore K1vukon1 R.M.' s Co\J_rt alle9ing dese·rtion on '· 'the part of ·the responae·nt. The respondent· on 'the other h.a·nd cross-petitioned for divorce alleging cruelty on the.par~ of "the petitioner, which cruelty aceording to he,r reply, wa,JI the cause of her leaving the matrimonial home. en the appl:l:c:ation of the respondent/appellant which applica'Hon was supported ..y "the respondent:/peti tioner and his advocate, Mr-. Mwaj asho., a tonsent judgement •••••••• /2 ·, ,. I ,' I .,. - 2 a e.onsent jud(ement dissolving the marriage bet,..:.een the p.a,rties. was entered on the •th Octo}t,~r, 1988 by Mr. Magessa, P.R. M. (a8 he then was).· After dissolution of the marriage there remained only two issues to be decided •Y the eourt namely (1) To what reliefs ware the parties entitled and (ii) To wh~se custody sheuld custody of the child be given. C,n the evidence tendered before it. th8 trial cou::t dee!deo tn.t the child, Fathiya, be in the custody of the peti tioner/responderit .• ·--- The ~ppell&\li~,.~~111-.t: ~ ollow~ to vi•j,t -t;.he c:hild once a month •. en the_ ~uestion of i·:· matrimonial assets the court found that a house .-uilt on plot No. 35 u~w.T. Street was ac1uired during the subsistence ,;, 1 tf the marriag~ :ey the joint efforts of the ~rt.1-es and ordered that it be "dividede~ually ltetween the parties" .. The respondent/petitioner was aggrieved •Y the finding ef the court of first instance that the said house was jointly :.• :~aetf.uired during the life of the marriage al'.}d that 1 t should -"·· :.e e~ually divt,ded :between him and his former wife, the present appellant. He consequently appealed to the HigA Court against that d~ision. Dealing with the appeal the first appellate court reviewed the evidence in the district court and came to the conclusion that the trial court er.red in its assessment . of the credibility of the witnesses. The High Court, (Ru1"ama, J.), said inter alia: "Examining the evidence •••••••• /3 3 "Examining the evidence on record and the analysis of the same by the learned trial magistr~te, I find no complete and exhaustive analysis of the evidence had bee~ undertaken ~y the lGarned trial magistrate.· There is no dispute that the house on plot No. 35 U. w. T. Street was constructed during the time the appellant had been married to the respondent ••• How~ver the evidence on contri~utions made My the parties to the construction of the house in dispute though voluminous was neither straightforward nor acceptable •Y. •oth the appellant and the respondent. The appellant disputed it, ~aintaining that he liuilt the house out of the proceeds of his gar~ge - Modification Garage .... ·managed lty his ·sons••• The respondent maintained that she had contributed shs. 25 million for the construction of the house~ She further SU!)€rV1sed the construction of the said hou~ and had utilized he.r father'$ motor vehicle for the hauling of building materials to the gite. The learned trial magistrate did not properly address himself on this conflict - H:ts treatment of the evidence ••• was general and casual·. i, .• The learned judge found that on the evidence the YeSpf"ldent/ appellant cauld not have contrihutcd to the ••.,struetion of the house and that she "had been a hoUsH wife a"rl hed no independen-t: earnings other than that given to her -y him" - ( the hus1'and ) .• In deciding ·what law should apply in this case U:.e f'irst appellate court said inter alia: 11 It 1s further inferable from the evidence not in dispute that the parties to this appeal profess Islam. In exercising the power conferred by section 114(1) of the law of Marriage Act 1971 the court had to have regard to the Islamic Law; for those who profess Islam have a comprehensive set of laws embracing all walks of life - domestic, social, financial, moral and spiritual-. The ·~e.uran has treated very elaborately and in grea+. details law·s of matrimony, will, inheritance and other related matters. It is improper for tho~e professing I~lam to ignore ··er brush them aside· on the elusive goal by humans of attaining social justice and e.quali ty ............... /4 I I 4 and equcili ty of sexes. Under Islamic l_aw, Maryam,.-l!baraka, the respondent~ on the facts .. -•f this case could only have been entitled to · maintenance during a term of three months (Idoat) ..... She would not.have been entitled to division .. ,· -~f the assets acquired by her husband during the currency of the marriage. (See Surah 11 verse 2◄ 1)~. ~•1 • The first appellate court concluded that the house ~n ;P~ -;;... - j·r- No. 35 u.w. T. Street was wholly acquired by the respondent?-~ efforts and ccnsequently set aside the order of the district court that the house b~ divided equally between the parties. The appellant/respondent 1 s unhappy with the. ded.sion of the High Court and has come to this Court. Challenging the decision cf the High Court Mr. Kisusi, learned counsel fer the appellan~ submitted that there w"s evidenc~ which showed that the appellant contributed 1n the ~ilding of the disputed house d·,.:.ring the subsistence of the -~~ · marriage and that the first appellate ccurt was wrong i.n.- comin(J • to the conclusion that the respondent built the house single handed. In support of the argument that the appellent contributed in the acquisition of the house the court was referred to the evidence of D.W.2 and D.W.3, Mt-arak Salehe and Hidaya Mohamed respectively. Secondly Mr. Kisusi argued that even if there was no evidence that the appellant contr_ibuted materially in the )uilding of the house her wife'ly duties should have been taken by the High Court as contribu U.on in the acqui;,tt.ion, of the house. In support of this argument the Court was referred to·the decision .cf this Court in BI HAWA MOHAMED v. of ALLY SEFU - CIVIL APPEAL NO,, 9 1983 .. - 5 It was ar~ed that the learned judge did not, in coming to his decision, advert his mind to the decision in BI HAWA's c~se. Thirdly and lastly Mr. Kisusi vigorously submitted that the first appellate court erred in deciding the case utider Islamic Law whereas the petition was filed under the Law of Marriage Act. In support of his argument the Court was referred to section 9(3A) of the Judicature and Applicetion of Laws Ordinance Cap 453 of the Laws. ·,n th: basis of these arguments Mr. Kisusi asked this Court to reverse the decision of the High Court and restore the district c0urt' s juc'!gement. In reltuttal Mr. Mwajasho, learned counsel for the respondent/petitioner, argued that the judgement of the High Court did not contravene the provisions of the Law of Marriage Act and that on the evidence before the trial court the High Cc-urt' s decision took into account the decision ~ in II HAWAts case (supra). As for the Judicature and Application of Laws ... ' ,: It . lrdlnance, Ca- 453, Mr. Mwajasho conce<led that customary aid Islamic Law will not apply where a case is brought under the Law of Marriage Act; but countered that where a situation is not covered under the Law of Marriage Ac~ Islamic or customary law will apply. The learned counsel did not refer us to any authority in support of his argurne~t. We will come back to the law governing distribution of matrimonial assets after we have commented Oh the lea~ned c_rc,r>lbility judge• s reassessment of the., of the wi.tnesses. Aa we have alre~dy mentioned above the le"'rned judge came to the conclusicn that on .the evidence in the district ccurt the appellant could not have ccntributed to the construction of the house and that wshe had been a house wife 1md had no independent earnings .other than that given tc her by him" ( the husband) •. On the question "whether or not tha eppella»;t c0nt.rtbuted the toL construction of the house the appellant produced two witnesses- her father and her house-girl, - (p.w.2 and D.W.-3 respectively), in support cf her claim that she participated in the construction of the house. The respondent/husband ~~-· on the ct~er hand merely stcod by nis t·stimony that Im •uilt the hoU~e through earnings from his mo<lification garage run by his children~, It could be argued that appellant's father - D. w. 2, had reason to embellish his story,. if only to help her daughter, but such charges could not be -levelled agai,nst the house-girl, D.W.3 who was an i.ndependent•witness~ '!:he learned resident magistrate heard and saw the witnesses as they testified and found the two witnesses to be credible in their testimony that the appellant participated in the construc~o~ of the house., As it was held in. IBRAHIM AHMED V HALIMA nJI,ETI - (1968) H.C.:J. 7• :- 11 The question for a court on appeal ia whether the decision below is reasonable and can be rationally, supported; if ~o the lower court decision should be aifirmed.· The appeal judge may not in fact try the case de novo and decide for the party he thinks should win. Surely whe11 the issue is entirely one of the credibility of the 7 witnesses, the weight of the ev:i.dence is best judged by the court before whom that evidence is given and not by a tribunal which merely reads a transcript 6f the evidence." Dealing with the· ,uestion of assessment of credibility of witnesses the Eastern Africa Ccurt of Appeal also said in R v Q;KA!iDl,S KANJI KARIA anr-1 Another (194~) .li E.11.C./\ ■ 11ff . <..a "Where _a case is essentially cne of fact, in the absence of any indicaticn that the . tri~l judge had failed to take some material point or circumstance into account it ia impossil"lle and improper for a Court of Appeal to say that he has come to an erroneous eonclusion as to the respective credibility he attachen tc the evidence of the· Crown witnesses, and that given by the i3CCUsed.". In the present case the trial court considered the -contrad:ict:ton.s.. i.n. .. tlle ·e"ri.d,:;inr...Q ··of'•·--+,hQ J1?u~e. girl - -D • .w... s, iut was of the view that such contrnriictions, as they were. 1·..... were due to lapse of-memory as opposed to deliberate lies~ _Ul\like the first appellate court we see no good reason to differ with the finding of fact by the trial court (that the appellant contribut~d to the consi:ructicn of the house) based as it was, on the credibility of the witnesses. On the evidence tenc:l.ered in ·t:.he district court 1 t ,~ our considered opinion that the learned Principal ~esident Magistrate·was right in finding that the dispu~e<l house was jointly acquired by the parties during the s~bsistence of the marriage. Corning to the law applicable section 114 (1) (2) gives the courts power to order division of •~trimcnia·l as.iset.~ aceruired by them by their j?int ef:ll«ir'ts dur,ng the marriage•. The phrase ••• ~ ••• f.D ~. ,., 11 ,;~ , ' ·._( .. The ph~ase "their joint efforts 11 ane-l. '.'work" towards the ae~uiring of the assets hns been held ~y this Court in .. II HAWA·MOHAMED v ALLY SEFU - CIV:rL /\PPEJ\1 N('~ 9/e~ to "embrace the domestic "efforts" or 1'work" of husband and In the present ca~e it is not disputed that the appellan~ ~a~ one issue with the respondent. As a wife she reared the ~hild and minded the home. She therefore freed the respcndent for his eco.nomic activities. She 1s therefo_re, in view of the de<!i.sion·in . . . . .:eI HAWA's case (supra), entitled to share 1~ the f~uits of her husband's economic activities even if she had net financially contributed to the constructi9n·of the ~ hou~e. Ae the evidence showed apart from her wifely duties ~he participated in the construction of the house. The learned judge was clearly in error in deciding the case under Islamic Law bearing in mind the clear and mandato?:y provisions of section 9(3A) of the Judic8ture and App11cat.1on of Laws Ordinance, Cap~ 453 which says: provisions· "Notwithstanding theL_ of this Act the rules of custom~ry law enct the rules of Islamic Law shall not apply in regard to any matter prcvided for in the Law of Marriage Act, 1971". As the petition for divorce was filed, heard and determined by the court of first instance under the Law of Marriage Act, and not under r'slamic Law., the applica~or: of Islamic Law by the Hi,gh Court in dealing with the (!Uesilon \ of distribution of matrimc-ntal assets was uncall~d for and clearly............. . . . ;,