19871208 TZHC Dar es Salaam 1

IN 'l'Hk, HiuH CuUHT 0:1" 1'Al>1'.t:;ANIA AT VAR Eb bALhAM (PC) CIVIL APPEAL NO. 9 01" 198.5 (from the decision o! the district Court of llala at oam~r~ ii.Venue Civil ~~t;eal Na.20/85) Original Kt.:nakoo Pr. Court C:t.vJ.l. Case .. Nio.,50/ 84 MOHAMED HU~SEIN M. ThKI ••••••••.•.••••• APPELLANT versus FATUMA Bhl & ANOTHJ!:R •••••••••••••••••• RESPONDENTS J U D G M .E N T The marriage between the parties was dissolved by the Kari&koo Primary court in a petition filed by the appellant, Mohamed Husoein Taki, against the respondent, Fatmabhai Remtula. The primary Court refused to make an order for division of properties and it held that there were no matrimonial assets to be divided between the parties. The appellant's appeal to the Ilala ~istrict Court was dismissed. This second appeal is a~ainat the lower court's refusal to order division of the pro,.rties which the appellant claims were matrimonial assets. From the eviiencet it is abundantly clear that the properties in dispute were left by t,he daughter of the parties to this appeal. 'l'heir daughter died leaving behind a few personal properties including golden ornaments which were given to h~r at her wedding as gifts. There were also a few clothes and shoes. These were taken by the respondent after the death of her daughter. 8he sold those golden ornaments to get money for her maintenance and to pay for medical treatment. Originally the ornaments belonged to her as she had received them as wedding gifts at her own wedding, and she later y1,ve them to her daughter who is now dead. bection ll'+ of the Law o! Marriqge p Act gives powers to a Court, during or subsequent to the grant of decree of divorre or separation, to order the division of matrimonial assets acquired by the parties, with their joint efforts, during the eubsistance of the marr:i,age. Tne properties which belonged to the daught:er I ••..• /2. - 2 - of the parties~to•this appeal, were not, by any stretch of the imagination, matrimonial ascets of the parties. So the lower courti were justified in refusing to order the division of these properties between the parties. Section 114 of the ·, Law of Marriage hct wae clearly inapplicable. Mr .. ~ahim, the learned counsel for the appellantt conceded at the hearing of this appeal that Section 114 of the Law of Marriage Act does not apply, but he submitted that the decision to award the propet-ties to the respondent was unjust. With respect, I do not agree.. The issue before the trial court was whether those properties were matrimonial assets- The court foul).d, anli rightly so, that they were not matrimonial assets... It was not a question of awarding the properties to the responaent. .rtather, the question was whether the court had power under .Section 114 of the Law of Marriage Act ·to order the division of the properties between the parties. The court ,had no faoh. power. The properties did not belong to the parties •. They belonged to their daughter. So, the primary court had no power to consider division of those properties between the parties in those divorce proceedings. One last point raised by Mr. Rahiin was that under Shia Islamic law, the appellant was entitled to a share in the estate of his daughter. That may be so. But the point is this. The proceedings in the primary Court were not for distribution of the estate of the deceased. They were divorce proceedings between the parties in which the court ha-d power only to order division ·of matrimonial assets. The issue of inhtritance of their daughter's properties was irrelevant in those proceedingB •. That is an issue which woulti be considered if and when an application for pr-obate is filed in respect of the deceased' s estate. I . •••o•/3• I - 3 - For these reasons, ·the appeal has no merit and it is dismissed.with costs. '' , ·i' , ·!".'t'; t .~ ((/! !/ (.I\.~ W. J,. MAINA JUPGE lJAl< &, SALHHM 8th ~ecember, 1987 Rahim for the appellant Haithatha for the Respondent.