20130306 TZHC Dar es Salaam

... IN THE HIGH COURT OF TANZANIA {DAR ES SALAAM DISTRICT REGISTRY} AT DAR ES SALAAM CIVIL CASE NO. 203 OF 2012 · MA.RY ATUPELE. MUNGAI ................................................... APPLICANT VERSUS . .. ST JOSEPH JAMES MUNGAI ........................................... 1 RESPONDENT VJAHEEDA YAKUB SULEMAN ..................................... 2ND RESPONDENT :Date of last submissions: 26/02/2013 .·Date of Ruling: 06/03/2013 RULING f.-;Twaib, J: : : _· :: ~cco~ding to the Plaint, the Plaintiff is the wife of the 1st Defendant. They were ·• m~rried in Christian form on 15th June 1968. The marriage has been blessed with · . four children, all now of majority age, and several grandchildren. They have two · . ri,afrimonial -~ . homes, one at Plot No. 230 Mtwara Crescent, Oyster Bay, Dar es : • .. ·· . $alaam, the other at Plot No. 1 Block C, Mafinga, Iringa. During the pendency of .t.~e marriage, the spouses acquired several immovable properties. _:- Jhe 'Plaintiff's claims herein arise from a set of facts that amount to an allegation .. ,·... . · .· q(:a_dultery between the two Defendants and misappropriation, misuse and ·.. appropriation, of proceeds derived from the matrimonial properties without the .... ) - - · · '. Plaintiff's consent. The Plaintiff also claims that the Defendants have forced their Page 1 of 7 ' ._'.·. :·.· 'j:•~;;'~,~t~,.)~.--:·_\~i:W~Yt)nto the house at Mtwara Crescent, which she considers her matrimonial . · r:;:;r~~ ,/. (_ ~-~ -.._, ··•· ~ ;·1 -~- ·.. ,.'.: - :F..l~:~\\'· _ . :bbnj-e, and where she stays while in Dar es Salaam. She says that the presence <:}:t);·. _J_:<t.qf-\he 2 Defendant at the house provokes, humiliates, annoys, irritates and ..,t -llf; ~ ~~~-;:.:.-::: {;.\..;; ,\. :-. , ,' ,._. ; ·'...; :: nd ·. :'.).;:'.if-)}-~-<. :-¢~us.es her and the entire household great disturbance. : .... I I t?: ;t~·?~>:.~~~~:;( j; •~~:. :~-~~ ~-~~ /'•~~ }\{~}i:_~{;;QJ}·:-;;i-,1:Jth;is _.. -•:.·•..::;- ;.-·~:~ ·!·J- :1.:.~ -·:.1· regard, the Plaintiff alleges that the Defendants are engaged in an illicit t' .. _: .. , : !; . (-itfr:i:;\\lJ~~;_'.i·r¥ationship which has been blessed with two -issues who are still minors. The ~/)}~}('.:?'·_/,S-~ja'i~tiff claims that the 2nd Defendant induced the 1st Defendant to desert the _-:,: ;,\$.,. :: ;_.•1:;1i'.i_!'-~_/i:~·J· ..'.;:, ~~ :, .; ·. ' .t\/:iJf;r,·t;.'Plaihtiff in 1997 and the Defendants now cohabit in the matrimonial home and -~ . : ~"!);:~~-~; '•{,/\~~- 1,: ~? >·· >:· ·. ·. _,}l/,.fftlf':/-: pt,het_ properties. ':·'.:-~~-:-.:~·~ ~- .. .--t.~ ~ :, . '.· .·. --/ .;-..< :·. :·_ •.J :/·J,~::f_-~{/i\:~: '.Th~)Plaintiff has further raised claims relating to a jointly acquired property at ·:"·.·/,JiiJ~"'-':~":-(,' ·:...-,,•. ~ '1.1::"{ ....:..• ~: . :·<~\r~~i!~Ji1)( i~W~ Mlalakuwa, whose development is a family business known as Baobab · .•,1 ~, ... ··~-:f'l,~;'-·,;.,~," .. ~';1~Li,, r~{tfr:f{i~/:~~lftments Inn Ltd. The project is being undertaken by the company, to whom ~-ii'.'•~-_:,'i:·:P-~-t1 '.;;t.-._\ ..,.'.,.,, ;.•:_:·~-~·-•~''. :~~tlf~i-;>~i~:tf(ey>assigned the property for purposes of the construction of apartments. The • . .. ·~··t·;··•.,,;:I',.\,._•!" ··....~- ,:.. . . ;fctt.i¥:ffi'.f:.j(efa;intiff claims that the 1st Defendant denied her shares in the company and has '.~~:'_''\:fr~': ~\-~ft:.~¾t.. ~,! \,·~ ......'. .-, 0 1 ~ t, • Jt.*l'.if.:~,\;:..;r);ir1$tead ...'l:, -:1-., , ....... allotted shares to the minor children, Jacob Mungai and Sandra Mungai, , ....... ,,·.' 1,. ~ .... ~. ,. .., /?J~~i~:f}_,f{.-~hbrt1 he has fathered -with the 2 nd Defendant, without the Plaintiff's spousal i'.i1j;i}[~~@t£ ~~nt. . j;;-:i~>;;1:i:/f:·::~'tthet·::p1aintiff· further claims that the 1st Defendant had abandoned a school :_~/·X\=./r~ it ~\.:i•\t-:--: ··,r.(:;.· ~~-,.. 1 }E~1i+¥.1~ffFf;::gt;pJ:~ct they jointly own following his desertion of her, and a result of which they .~1: t·i ... .:.,J.~ .... • '(: ... ' I i:~t/ . "':/)li~t\~~/~-'.not been able to repay a loan they took from CRDB Bank. •'1 ¥(,' ,.. ·::.·~tt1;.·f~_t·::~:·~-,-;~~::;.~j\~-;·t;{·~~ . :r:\i:{\~I~\i.:}r,li~O;Plaintiff ' \ • •• i1f•i'•' .,, "l'c ·: .,,, ..' ,.. • .. concludes with the statement that despite her efforts to urge the 1st nd /ft{i!:fi{fi~9~f~_iidant to stop welcoming the 2 Defendant in the properties which were ;;~;~JXH£1f)~~~~nred jointly with her, to repay the loan and stop transferring properties she J~:::~liHff:Jhg&Jg,ders matrimonial, the 1st Defendant has continued with the alleged wrongful 'J:1-~/f~ '·)~,;..'.~.1;1'1~:.::~~~:,~ .~(--.-·~ ;~.. ~ ·:~-:ti'.11}t~{;}f /ai:l:s1.l'thereby compelling her to institute this suit. .:,::;rfr1:{t,trrr:::r,-i(t·t:· ;:11:.:~~~jJ~;tf(\\?'.t.li~'.:p1aintiff thus prays for the following principal reliefs: Declaration that the immovable properties registered in the name of the 1st Defendant were jointly acquired by the Plaintiff and the 1st Defendant; Page 2 of 7 ;1~r~·~~1•.~-~s•,•~1•.'.,!~;~,Jr·~,.J---------;._..;...,;.·'....._.:;-~...,.;..;__;..._...;..;..;_,..__~~--_,~·~---.......,;....;;.....__. . ,;: . .-;.;.·______ ~~tu k~'>-';. . . it~·~ •t~_ ·r { ...,. . nd ,y_·._A_permanentJnjuDction · restraining the 2 Respondent from entering, ·:~[- · u~irig~; ~c~pying-any~partofthe properties· onPlot No~230-afMtwa·ra--~--- f Crescent and any other properties which we're acquired jointly by the 1st Defendant and the Plaintiff in Irin.ga and Dar es Salaam during the st subsistence of the marriage of the Plaintiff and the 1 Defendant. An order nullifying the transfers of properties in Plots No. 125 and 126 st Wailolesi Sabasaba area in Iringa Township transferred by the 1 Defendant to his two minor children, Jacob Mungai and Sandra Mungai. An order nullifying the shares allotted to Jacob Mungai and Sandra Mungai in Baobab Apartments Ltd. A declaration that the Plaintiff is entitled to be allotted shares in Baobab Apartment Ltd. A permanent injunction restraining the 1st Defendant from disposing ' ' any of the properties which were jointly acquired with the Plain~iff in any form without the consent of the Plaintiff. An order compelling the 1st Defendant to repay the loan secured for Southern Highlands School company from the CRDB Bank. Page 3 of 7 .·• .. ----- ..,,._ ......·-F ~~- Page 4 of 7 ..r :::;).:'.;/·:'.~A-l)~;::\\cd'U·;,:sel categorises the last two issues as commercial, which should have been ',: .c··-.~>j./ )-'.:,_;,/1._--;;·-,.·•~;\.. :~ .. :'.: (\ .. ?'; . · /.:r(/:-\.':.::. /\fileq:. in the Commercial Court. Matters relating to ownership of immovable ·'t\).::(.:·,i//:'~ ··iif6·be_rties, in counsel's view, fall within the exclusive jurisdiction of the Land :;.·(5i_viikm of this Court. Perhaps it is pertinent to address these latter issues here )/<~:ta·~ow, "_.. .. . . . lest they divert us from what is the substratum of this suit. I will thus ,•-.• , -;,:.::tq:fhrnent thereon only to reaffirm the legal position and to avert any .. ::~ik~nderstandings in the future . .:__":":'./( :r···... ··· .. ,:the: .·.. .. law does not grant the Commercial Division of this Court exclusive .·.~ ; .: . , ::>lJu_r:.isdiction with regard to cases of a commercial nature. It is thus open for a .:,::t: __ ···\}}{pi~'.i~tiff who claims an interest in the shares of a company to file his/her case in <:;:':(?\.fYt\?/\}thii:~rdinary division of this Court. Mrs. Rwechungura, learned Counsel for the ?::~ '.:. .::·_: :-'?\\~:(l'·,:':.,"·~'-'.-·.·: )> f:'· . :::;/;(:):f--1/:.ii,:::P.latn,tiff, has not canvassed this argument, but I respectfully hold the view that . _;':_.t~;c .. ~ ~-- ;,~,..-:-~•~ _1 ~_-'";,:; :·'-~:.'. '-.'.·: ?-~l}\j'.{i}fi);·~~\t~!CJst Defendant's argument can adequately be answered by the foregoing ~·t:}flf}?A":argDment. However, as we shall see, this is not the basis on which this decision li!ITit[~~!½:)~~~de. :;·./,::y:~:;'.f.'..ft/•il\$'.{Or claims in landed properties, the Land Division of this Court does have . • l • ~. ,t'.- '• 't ,• J • ~ , •1 '~ •.-•• -, '" . ' . ,' :: . ;/]{f:::.;/:;/t:f/·L·&idusive jurisdiction to entertain claims relating to land. However, such cases ~ ·._:-::}:~ .:(::. ::~ >:-.;_. ·:.:·~ ·.'. -~~ -~- ·, i?:. .:.\:· : '.·;~.;)\:Ji;f•:_· /r·:..:mustbe filed in the Land Registry of the Court, not the ordinary civil register. But 7 .\:: ·;_ :--,::_·;.r-;_~:r·~--~~'.:. .-~- ~=--'".: . -_ --~- ·-:< ';3/U}:ft\L-;._'::'tr!f)_s not, again, the reason why I am going to take the position I am taking in )~)>J)> \· !1<-:.i'.,'~:-:-~·/_:~--.t- ~h:,,:~-· :- / ._-··- 1·· : ': . ,;<,,-,r.-1._,., t, _I~, ru mg. 1 _,•:.'\"~'·•: :~:;;~:-;::-~•~:::J@:.;::;_;·'.·)\(;.: .-.{~·;\1·tdt.f(<fM~~;!' i"·._ • ,·'.•,, ~-'~ -~ Rwechungura opines that the first point of preliminary objection is <. ·_. :_. :, .:.- , -·t," Y· :}~:/:?{),)'./S';: rnisq::inceived. She has advanced two reasons. Her first reason is that the High :-~;::-::/-·;:.r.t:.i~·:-.;"': -·.:· ·,,,.. ·::.: ;::\·,-<'\\.f>. ?f-~/Court, being "the highest Court of the land", has jurisdiction to grant any relief, . _j -~·--::·) ~•;, :;·~--! :_ ~~· ·.f:··:~ ;: :,--·:,; :/ ._~"i\.~.:,; . ·:_i};::··,1/;}\'.;:i[:,t::i_::P.t9:YYJed the relief is not illegal or against the principles of justice, and that the t;·r::-.'· -;,-.-.,. ;· ~ ', ~ ·• •;h·~ · ;x .:: .>--,. ~- 1 :\, -. -:·. ·;;:!TI~\•/-W:it:iY\Go~ft's jurisdiction can only be ousted if the value of the subject matter is not :/:_:~tA;:' !;-J;i;fff'.~{t'~in the pecuniary jurisdiction of the Court or where there is a written law .\::.:··.:.:-~r--;,:i,,f<··.,:_{l::\/\ ·__,.; ;:;·;,; :· .· /{::,}'/ft'!?-:/·',\N.h'ith prohibits the Court to entertain the claim, which is not the case herein. i-:\(){:';'/;/t.;ft::!: :,:·1::-?L:1( 1 :--t:·'.•/t}:,·'.::?'.:-,::Collbsel further argued that whether the relief being. sought is one that can only ~·/'.{\\C}i;_j:})_'.;&i'f~ranted by the Court in matrimonial proceedings or civil case is a matter :ii~;\r~J.\ti!~K)/·~A1~h requires proof by evidence. And, on the authority of Mukisa Biscuits v Page 5 of 7 ,... . .. . ,, .. ·., ' , . ------ - - --- ◄ Page 6 of 7 . . · ;.r:n the present case, it is crystal clear that all the Plaintiff's claims are based on ··-.matrimonial rights. Even the claims for shares in companies and landed · properties are brought on the strength of the Plaintiff's matrimonial status, namely, that they were all jointly acquired during the pendency of her marriage - ·with the 1st Defendant. The· other reliefs sought (the existence of marriage, matrimonial homes, jointly acquired properties during the subsistence of the marriage, provision of maintenance to the Plaintiff) arise directly from matrimonial rights. They are, I -. inde:ed, by their very nature, matrimonial. There is not a single claim which is .based on a cause of action other than matrimonial interests. : Looking at the facts as alleged in the Plaint, and the reliefs being sought, it is ·. _ t!earthat the Plaintiff's claim to rights and interests in all the reliefs prayed for is . :;_' :, : · b~s~iid on the fact that she has been, for many years, the lawful wife of the 1st · Defendant, during which period she has acquired some rights to matrimonial shares in all properties that are in the name of the 1st Defendant, and any other ·property or properties that derive therefrom (including interests in corporate -bodies). Hence, in my respectful view, the entire suit is based on matrimonial ·c_laims, which should have been filed by following the scheme provided for in the • Lf}w of Marriage Act · _rn:the result, I am constrained to sustain the first point of preliminary objection. -Withthat finding, there is no need to deal with the other points, an exercise that · ·-vv.ould be purely academic. The suit is hereby struck out. ·•. : In view of the nature of the case and the matrimonial relationship between the ,- · _. ·. Pl~intiff and the 1st Defendant, I would make no order as to costs. ' .. .,,-·~ .~ .. .· '.- :' D~TED and DELIVERED AT DAR ES SALAAM this 6th day of March 2013. ,. Judge Page 7 of 7