20141127 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA ATMBEYA Pc'. MATRIMONIAL APPEAL NO. 6 OF 2014 . . . . . (From lvibeya District Court !11d.tri~onial Appeal No. 3 of 2014 Origin~l Iyunga Primary Court Matrimonial Cause No. 34 of 2013) MWANAISHA.OMARY ...•.. ~ .... ;.~·.·....•......................... APPELLANT • I ·-.· VERSUS , .... · ATHUMAN BAK.ARI ...-~ .........•.•................•.. RESPONDENT JUDGMENT Date of Last order: 18 / 09/2014 Date of JtJ.dgment: 27/11/2014 A. F. NGWALA, J. This is a second· Appeal, emanating from Original Matrimonial Cause No. 34 of2013 of Iyunga Primary Court where the Appellant successfully petitioned for divorce but was dissatisfied with the division of matrimonial property. Her Appeal to Mbeya District Court was unsuccessful, hence this Appeal. · Briefly, the facts of the case as depicted from the trial court records are that; the Appe_llant and the Respondent were married way back in 1994- ·according to Islamic Rites. Years later a matrimonial strife between the parties arose. In 2007, the situation worsened. The Appellant left the matrimonial house. She however, returned home and the parties were reconciled with by neighbours who _wen:! well- - ~ ♦ ... • • • • wishers to their marriage. The Respondent complained to BAKWATA 1 (Baraza Kuu la Waislamu Tanzania) of the repeated ill habits of the C Appellant. Consequently two "talaks" were granted. The efforts to settle their marital problems landed in Court. Their marriage was dissolved by Iyunga Primary Court on 10/ 12/2013:. Upon dissolution of the .said marriage, the Appellant was awarded Tshs.9,500,000/= as her share to the matrimonial_ property acquir.ed during the subsistence of their marriage. In her Petition of Appeal to this Court, the Appellant through her Advocates Mwakolo & Company laid down the following Grounds of · :Appeal.- "1. That the Honourable Appellate Senior · ·Resident Magistrate erred both in points of law and facts when he · confirmed the award of Tshs. 9,500,000/= as an equal· amount of money as division of matrimonial property. 2. That the Honourable Appellate District Court erred both in points of law and facts when he did not order for the valuation of all the matrimonial properties and divide them equally. 3. That the Honourable Appellate District Court Magistrate · erred both in points· of law and facts when he . h_eld . that the Appellant had committed matrimonial misconduct and that he was entitled to .the award · of 'Tshs. 9,500,000/= 4. That the Appellate District Court erred both in points of law and facts when it disregarded the contributions made 2 . by the Appellant towards the ·acquisition of the . ,:,._ ': .l.•.I ;matrimonial property." ,•: .·.,t In his· reply, the Respondent· who was represented by Daniel Lawren~e Muya - Advocate of Magister Law Associates, advanced the following pofr1t.s:- " l. That he disputes the contents of paragraph 1 of the Appelhmts' Petition . of Appeal as the court' correctly divided·the matrimonial property. 2. That the Respon<:Ient strongly disputes the contents of paragraph 2 and puts the Appellant to strict proof thereof. . , , 3. That the · contents of paragraph 3 of the Appellant's Petition of Appeal are also strongly disputed and that the honourable magistrate correctly ruled out that the ' ' Appellcmt did matrimonial misconduct j • ' 4; That the Appellate · Court correctly considered the contribution of the Appellant." .Mr._. Mwakqlo the Learned Advocate for the Appellant- argue,g. _tl}e four. _grounds of. appeal jointly as they all r~fer to the division of matrimonial property. In his opening remarks he averred that it was not proper for both the lower courts to award the Appellant Tshs.9,500,000/= as part of the whole value of matrimonial property without ,asserting the value of all the properties, they jointly. acquired. He submitted tq.at ·in the trial court .records it is 3 . / clear that they jointly acquired· two houses, one at ·1yunga and another at forest area in Mbeya. They also acquired t~o motor vehicles and two shops. Mr. Mwakolo contended that, before arnv1ng at the division of matrimonial asset~ to the parties, the courts below s~ciuld have . ' . :. ordered valuation so that it could be easier for the courts to determine the portion for each party. The learned Advocate submitted further, that,· there is no dispute that the parties had been living together, s}nce 1994 until the 10th " . December, 2013 when they divorced. Mr. M~akolo assertedthat the two factors considered by the trial court to award the· Appellant Tshs. 9,500,000/= were firstly, that she was a house·:wife and hence she did not contribute anythin.g while the respondent was an employee. Secondly, that the Appellant stole from her husband and misused monies from the shops. The Learned Advocate referred this court to the case of.Charles s/o Manoo Kasare and another vrs. Apolina w/o. Manoo· Kas~re, Civil Appeal No.84/1988 Court of Appeal of Tanzania at Mwanza, where the court held among other things at page 5 and 6 that a wife cannot be discounted from the business of her.husband even if she makes no direct monetary contri~ution. His wife services during the life time of their marriage from 1967 to 1992 .would in itself entitl~ her to a share in the property acquired. On the basis of this authority, Mr. Mwakolo submitted that the appellant was .. married in 1994 and stayed with the husband till 2013., providing 4 ' -~/-.~i~ other -~~:rvices in the house and so he cannot be discounted from ,. :,t' the bush~ess of her husband. Arguing further, the learned Advocate stated that,· the Appellant's alleg~1,- miscondµct that she stole Tshs. · 3,500,000/= was not · proved. The Appellant was never sent· to police. He disputed the evidence of . SU3 and SU4, the Shopkeeper and Baraka Jonas respectively that if was untrustworthy. He submitted that iri most Cases like 1n the Case ·of Bi. Hawa Moha:med [1983] TLR 32 and the Case of Omari Chikamba -Vrs. Fatu-~a Mohamed· M~hunga [1989] TLR at Pg. 39 - 40 it was held ·that _misconduct of a spouse, touching to the management. of the matrimonial property is relevant factor when the issue of division of matrimonial property· upon dissolution of· marriage arises. He •· .·. t. 1nsisted that the issue in this case is whether stealing Tshs. 3,500,000/= and taking money from the shop_s by the Appellant can discount_ her from -acquiring a share· of the matrimonial assets . . -Where :they· acquired together two houses, two motor vehicles and . . . furnitures. Mr. Mwakolo argued that the Appellant's conduct, if at •· ·.all ·the~e was any cannot dis~ntitle her to a share of the acquired -matrimonial properties. . . . Arguing• in respect of the allegations that she stole ATM Cards to withdraw money, the Learned Counsel for the Appellant averred that, the Appellant could not steal her own money since, the money was jointly acquired. I~ • '{ ' } '· With respect to the loan that the Respondent had taken and mortgaged their houses, the learned Counsel submitted . , that the same was illegal since the wife's consent was not given as..required under S. 59 (1) of the Law of Marriage Act, Cap. 29 R. E. 2002. He argued that the loan ought to have been paid from the Respondent's pocket. Therefore the lower courts erred 1n holding that the· Respondent was entitled to a majority share because he had a duty· to repay the loan. Mr. Mwakolo went further submitting that the fact that the. parties • were married under Islamic Law and they are protected under Section 114 (2) (a) of the Law of Marriage Act that in exercising the division of matrimonial property between the parties shm.;tld have . regard. to the customs to which the parties belong, yet it. .was '· . .·· not . explained under which Law, the Appellant was for bidde'n tO' be awarded an equal division of the matrimonial property. -acquired 'j during the subsistence of their marriage. In conclusion, Mr. Mwakolo stated that the matrimonial properties should have been evaluated to know the value and the distribution ,, should have been based on the percentage. He averred that the award of 9,500,000/= to the Appellant is negligible and occasioned a miscarriage of justice. Mr. Muya, counsel 'for the Respondent in reply submittecl that the lower courts did not error 1n the division of the .m.attimonial property. They took into consideration all the relevant•. factors 6 ' f •. . pertaining to the division of matrimonial property as provided for ' l I • • • under Section i 14 (2) (i) - (iv) of the Marriage Act, CAP. 29 R.E.2002 . J' ·I He s11.bmitted that, the two shops claimed by the Appellant were acquired during the subs_istence of marriage is only an allegation without proof.. With ....r.ega:rds to the houses, Mr. Muya submitted that the same were: '.:n~t in dispute; he contended for the welfare of the whole family~· the respondent :secured a loan from the "Agricultural Trust </'. • Input .Trust Fund". He added 'that the award of Tshs. 9,500,000.f:= to the.. Appellant was proper . as .it is backed . by . Section 114 (2r(iii) ~f the Law·,, of Marriage Act, that the loan advanced by the Financial Institution was for the benefit of the farnily. Mr. Iyluya contended that on the two. motor vehicles claimed to have ·been. obtained . during the subsistence .of the marriage the truth is that,:)~. is only the motor vehicle make Toyota Prado !hat belongs to the R~spondent. The other motor vehicle with Registration. No. 785 ARK 785 belongs to the Respondent's Employer known as FARMER CENTRE COMPANY LTD. The Learned Advocate, disputed the notion imported by the Appel~ant that her domestic services were not taken into. consi~eration, by quoting part of the appellate court's decision that state4·.to the effect that the District Court agreed with .the Counsel for th~· Appellant that being a house wife and attending to domestic 7 1-- -. service does not mean that the contribution 9ut of it is small, hence \.'\... ,•' he stressed that her' contribution was well assessed by th_e court. Mr. Muya further submitted that, it was undisputed during'.the trial court hearing that the Appellant misused . the funds and that the . ' ~ ' ' Appellant went as far as attempting to steal the money iis1ng the Respondent's ATM Cards. This according to Mr. Muya reduced the Appellant's contribution in the matrimonial assets a~·. per the . decision in Bi. Hawa Mohamed Vs. Ali Seif ( 1983) TLR ·:3,2 where the court had the follqwing observation:- ., "Where a spouse commits a matrimonial miscondut:t which ' reduced to nothing her contribution towards the weifa_te of the family and consequential acquisition of matrimonial or family assets she or he would not be entitled to a share in the property" Mr. Muya submitted that, the habit of misusing matrimonial property is further proved in the sixth paragraph of the proceedings at page 7 where the appellant sold a sewing machine and a . ,~· ,, ; ~ refrigerator in order to get money as a fare to Tanga. :/fhe .. sold \' property was acquired for the welfare of the whole family. Mr. Muya ' .' . added that, taking into consideration the A:ppellant's J~i.~conduct both the lower courts did their best to award Tshs. 9 ,500.;()00 / = to the appellant as her share. Lastly, the Learned Counsel for the Re~pondent evered that.the loan secured by the Respondent was focused on the welfare ~fthe whole 8 family. Itis his submission that the legality of these particular loans . . 1 . could be· properly tested when the Financial Institution could give proper- ;documentation. as regard~ to what transpired during the ascertainment of those mortgages. Mr. Muya finished his submission by asserting that it wouid be ·seriou_s injustice to rule oµt in the absence of those Financial Institutions that the loans were illegal, as the Financial Institutions could.reveal that the particular transactions were within the amhits . . of law. For these reasons the counsel prayed for dismissal of the appeal -with costs. In hi:$ rejoinder, Mr. Mwakolo ,stated that the amount awarded to . the Appellant has not traced its source. The amount that with was · awarded is not a matrimonial property. He submitted further· that the qu_estion . '· of two shops has been revealed by both parties and ·their ~tness SU2 at page 2 and SM2 in the ,proceedings of the trial Court. .. :sM2 stated that they had .two shops, the fact that was. ..,. ,. not ·denied. bythe Respondent. Mr. l\1wakolo submitted that, it is in records that when cross- examined by the i st assessor, the Appellant said "tuna maduka niawili na nyu"!-ba mbili hapa mjini'' at page. 5, when the Res:p_onderit was testifying in chief stated that;- ..... : ~ t . "Baada ya hapo kutokana na taaluma yangu ya mifugo n.ilifungua duka kuuza pembejeo na kuwa na rhsichana '. ' :~liyekuwa dkiitwa Mary ambaye · kwa sasa ni marehemu 9 alimfundisha na akawa anasimamia si],ughuli za·. duka la I pembejeo na baadaye ............... ndipo mdai akawa anafanya shughuli za kushona hapa nje ya duka." On the. issue of two motor vehicle, the learned Counsel, submitted that, the Respondent did not disclose if'one m'otor vehicle did not belong to them, he therefore concluded that it is a lie. He disputed·· the loan to have been taken for the welfare of the family. He asserted that Section 114 (2) (c) was misapplied. On the issue of ATM Cards, Mr. Mwakolo submitted that, the Appellant was justified to do so sine;e the Respondent had not given her ~oney for the treatment of the sick child. ,.·• · · On the question of two houses he argued that, it is indicated at page 8 third line from the bottom that, "katika mais~a yetu niliweza kujenga nyumba mbili ... " which means they had two houses~ . Mr. Mwakolo also contended that ·selling of the refrigei:ator and sewing machine is not misconduct because if thenf ,was a misunderstanding and_ the Appellant was not given money, she was ':' '. . * justified to ·do so. The Learned Counsel, Mwakolo concluded his rejoinder by praying this court to divide the matrimonial: .l?roperty equally . .Ha.v.ing gone through the issues for the court's determinations at this stage are:- 10 i t. . ' (i) . . Whether it is mandatory that the court should make valuation of~ matrimonial property before division of the same upon dissolution of marriage. . . (ii). · Whether the Appellant was discounted in the busi":e_ss of.~er husband as she alleges in this case. (iii). Whether .the award of Tshs. 9,500, 000/ = to the Appellant ·upori dissolution of their marriage ½las right based on the .·. ,· · alleged .misconduct by the appellant in misu·sing the ·... ·. · matrimonial property . ,••_, (iv): Whether the law entails equal division of matrimonial assets · · ._.:·:-upon dissolution of the marriage between the couples. The isiJ.es raised herein above shall be resolved in seriatim. . '\' On the first issue, 'it is a matter of law that one canhot invoke ' ' divis_i~n of any property among divorced or separated parties withoµtfirst ascertaining the quantity or amount to be divided~ The applic;able .. . ,· law is Section 114 (1) of the Law of Marriage Act which ' ; .'l • , ·provictes as follows:- "The court shall have power, when granting or subsequent ·' ·,, to the grant of a decree of separation or divorce to order the division between the parties of any assets acquired by · · them during the marriage by their joint effarts or to order l;,, the sale of any such asset and the division· between the .. . . ' parties of the proceeds of sale." 11 ,i, . . J ,,- TJ:;i.is section has been interpreted differently depending on the material facts of each case as it shall be shown in a numh,er of the quoted decisions in this judgment. The second ground of appeal raised by the Appellant was that the court's below invoked division of matrimonial property without first evaluating the properties that were acquired jointly during. the ' subsistence of their marriage. I have taken pains to peruse the records of the trial court to see whether there was any valuation of (he ~atrimonia,l, ... ., ~ . properties '' . ' ' ' before it decided to divide the same but my efforts have ended up in j ' : ' vain. I therefore agree with the Learned Counsel for the Appellant that the value of the matrimonial properties under division.was not· stated. This implies that the trial court w.ent on dividing the · matrimonial property between the spouses upon dissolutiC>n of their marriage without first ascertaining the assets and v.-~Jue of the property, something which I must state outright that it ~as wrong : ' •. both in law and fact. The importance of valuation of matrimonial property before division ' of the same was emphasized in the case of ROBERT ARANJO ·v. ZENA MWIJUMA (1984] TLR 7 where the court inter ajia stated that there was ample evidence upon which the lower coµrts held that the value of the matrimoµial assets was shs.282,474. The lower courts considered and gave good reasons for awarding the Respondent one quarter of the value of those assets. 12 In the. case at hand, there are no reasons given for awarding the .... > .. ~· ' Appel~ant .Tshs.9,500,000/=, the value of the property having not been stated. It is worth emphasizing that it is mandatory for the courts to make v~uation of the matrimonial •property under division . ' . so as' to avoid miscarriage of justice and unnecessary complaints. Regarding the misinterpretation and. misapplication of the Islamic custom to a .divorc~d wife that is entitled only to a parting gift "kithumni" from her fo'rmer ,, . husband as held in the case of Salim Wendo · Vrs. Tausi an_d Alfred Kasiliwa (High Court Dar Es Salaam) Matrimonial Case No. 8 of 1987 (unreported). ! More· so the parties who celebrated their marriage in accordance ·• with Islamic rites, and prophesed Islamic Religion ought to have · had their division of matrimonial properties after dissolution ·or . · marriage in accordance with what is provided for in the Holy Quoraji, ·Su~~tul ·.Al Baqar verse 24 i which reads in English and .,-.-· · Swahili translation as follows:- .,,241 - And for divorced women, maintenance (should be . . p_rpvided) on reasonabl~ scale. This is a duty on Al - Muttaqun ,·••1 ·{t6e pious -·see verse ~:2). ''"'\ in Kis_wahlli it provides:_- ''J:ra · Wanawake walioachwa wapewe -cha kuwaiiwaza (kitoka riyumba) kwa namna nzuri inayosema Sharia. Huu ni wajibu lytua . wamchao Mwenyezi Mungu ' . ". 13 ..,.. ·. I shall now embark to resolve the second issue on whether the t, appellant was discounted in the business of her husband as she alleged. Going through the records of the trial court, it ).~ evident .. : ; ·, ' ' that the Appellant was a house wife when she was first married to the Respondent .. After wards, the couple having opened two shops,. the appellant was involved in taking care of the fam1ly.: .and the business of the family like shop·s, tailoring etc. before she was , restricted by the respon~ent to do so due to the alleged ma,trimonial misconduct by misusing the funds generat~d from the business. It is undisputed fact that the Appellant had a contribution. towards the acquisition of the matrimonial property under questi6µ, ... this is ,.· .. ,. through her services both as a house wife and her involvement in the family business as it ,was stated in the land mark. case of Bi. Hawa Mohamed Vi;s. Ally Sefu [1983] TLR.32 that:- " Since the welfare of the family is an essential component of the economic activities of a family man or u;oman it isproper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of m.atrimonial or family· assets." The court having dissolved their marriage it was therefore wrong to award the Appellant a total ofTshs. 9,500,000/= as her sha,re of the ' '.: matrimonial assets without taking into account her contribution . towards the acquisition of the matrimonial properties. The case of Charles s/o Manoo Kasare and another Vrs. Apolina w/()_Manoo Kasare that was referred to this court is irrelevant in this case, since the Appellant was counted in the business of her ~usband. 14 . ·-_;.· - :_, :;J· ...._. ';. .Af.::JJ. ::•.-(::·•!,•, I 1 .. ( ·.,,. The oqly' _issue now is the quantum the appellant was entitled to as . '.' her sh~;:~ in the a~quired matrimonial properties. The thirc;l issue, which carries the weight of the appeal, is whether ·,, . _the a~~d of Tshs. 9,509,000/= to the appellant upon dissolution or th,~ir marriage was justified on the alleged misconduct by the Appehant: in misusing the matrimonial properties. It is from the records of the trial court that upon dissolution of th~ marriage• between. the Appellant and the Respondent . ·wliic)l subsis:t~d for almost nineteen (19) years from 1994 to 2013, the Appellant was awarded only Tshs.9,500,000/= as her share of the .matrimon.ial assets jointly acquired. The alleged reason for such award-is the matrimonial misconduct the Appellant is said to have committed. All of- these allegations directed towards the Appellant were not prove~ and. were unfounded on balance of probabilities. For jpstanc_e the alleged theft that the Appellant is said to have committed was never reported any where. Yet, the Appellant ,is the ,' ·i quoted. in her testimony in the trial court saying that she sold refrig¢rator and a sewing machine because their child was sick, the Respondent had travelled leaving behind no money for the family . • This.kind of excuse though not proved creates doubt, as to whether the Appellant misused the property or rather it was for the· welfare . of the· child. Taking into consideration the .fact that th-~ amount of Tsh~."·?,500,000/= awarded to the Appellant as her share to the matd~onial assets is not based on any evaluation of the assets, th_e 15 ,-/ ,-, . decision to award the Appellant only Tshs.9,500,000/= as her share of the matrimonial property really leaves a lot to be desired." . It appears that the basis of that decision by the trial court and subsequently, the upholding of the decision to award Tshs. ' 9,500,000/= to the Appellant as her share to the matrimonial property by the District Court of Mbeya is the decision in the famous case of Bi. Hawa Mohamed Vrs. Ally Sefu [1983] TLR.32, cited Supra, where inter alia the court held that where a spouse commits a matrimonial misconduct which reduces to no.thing, her contribution towards the welfare of the f~mily and consequential , . acquisition of matrimonial or family assets, she or he would not be entitled to a share in the property. With due respect to the learned trial magistrate and· :the· first appellate court, I am inclined to hold that, the decision in:::J,3i. Hawa Mohamed's Case was applied blindly. The lower courts had first to ascertain whether . the alleged misconduct by the appeHant really reduced the business to noth!ng. No such facts were es.~ablished. t Either, the alleged theft by the appellant in stealing her husband's money was not proved. It was also the District Court's reasoning that the Tshs.9,500,000/= awarded to the Appellant wa~.-~ parting gift quoting the decision of this· court in Salim Wendo Vrs. Tausi and Alfred Kasililwa, Matrimonial Civil Case No. 8 :.of 1987 (unreported) where it was held that under Muslim Law· (Islamic Custom) a divorced wife is entitled to a partidg gift from h~,r former husband. I do not question this decision,' but the rele~ari~y of the 16 .ti: . J ·award to Tshs.9,500,000/= 1n circumstances of this case, as a parting ·gift is questionable. It should have been assessed from the general value of the propertie·s. Apparently, it is awarded from· no base ·or there was no basis for that award. This leaves a lot to be• , desired as I have aforesaid. The total v_alue of tlie property in question is not established; the places where the houses are located ·· - are· ndt disclos'ed. This ,entails that there is still a need for further '• evide.~ce to find out the actual vaiue of the Matrimonial Assets and the locations of the same. Without wasting· more time, it suffices to say that, the issue is ans'Y,~,red in the negative, that the award of Tshs.9,500,000/= to the App'ellant was not right or justified. As far·· as the· fourth issue is concerned, whether the law entails equal.·.. ·_:division . of . matrimonial assets upon dissolution of the mardage between the couples, case law has ·answers for that. In the case.of Martin Vrs. Martin [1976] 3 ALL ER 629 CAIRNS, L. J; :· . '/:. . . . . ' had Jhis to say on distributjon of matrimonial assets upon dissoiution . .' of marriage, where a spouse committed matrimonial ~ misc·ohduct. · ...·t·: ........ such conduct must be taken into account because ··a ~pause cannot be allowed to fritter away assets by extravagant }iving Qr reckless speculation and then to claim as great a share h:(~ • • .·Pf:ll!hat is left as he would have been entitled if he had behaved reasonably". 17 ,·• • I This decision envisages that one cannot claim equal distribution of the matrimonial assets, if he or she conducts himself or herself in extravagant use of the matrimonial assets. Again in the case of Bibie Maulidi Vrs. Mohamed Ibrahimu [1989] TLR.162, Maina J; provided to that effect when he stated that performance of domestic duties amounts to contribution towards such acquisition but not necessarily 50%. The above cited authorities envisage that division of matrimonial property is not always on equal basis. It depends on the assessment of the contribution of each party towards the acquisition of the· matrimonial property. With the aforegoing, I allow the appeal. The decisions of the lower courts regarding division of matrimonial assets are set aside. It is hereby ordered that a court of competent jurisdiction should determine the aspect of division of the matrimonial assets accordingly. Notably the two houses and a car. After assessment and redivide the properties in issue and all the matrimonial furnitures etc or assets accordingly~ The matter should be heard by· different Magistrates who did not determine _this matter in courts_ of competent jurisdiction. Care being taken to follow in details the relev·ant procedure and law on ':•"·•'\ ·•,,·•··,:· •' './ ;: