20090827 TZHC Iringa

>. .IN THE HIGH COURT 0~ TANZANIA AT IRINGA (PC) CIVIL APPEAL NO. 4 OF 2008 . , (From the decision of the District Court of Iringa District at Iringa in Civil Appeal No. 1 of 2008 Original Matrimonial Cause No. 16 of 2007 of Iringa Urban Primary Court) MWINYI AMAN! PILI ..................... APPELLANT VERSUS KUDRA BURHANI MLOSI .......... RESPONDENT JUDGEMENT UZIA, J. Mwinyi Amani Pili, Appellant and Kudra Burhani Mlosi, Respondent, were husband and wife before their marriage ~as irretri~vably broken down and a formal decree of divorce was issued: on 6th December,, 2002 by the Primary Court at Iringa. Some I of the reasons given by each of one of them were i satisfactory to the trial magistrate and Court assessors that the said marriage had broken down irretrievably. Having found that the marriage was irretriev~ble, the trial court divided the matrimonial assets to the parties; that is to say the matrimonial . . house and furniture. . It was decided that, the respondent be giv~n half value of the house and if the appeU~nt " ,· \ would· fail to do so tbe alleged house could be sold and the sale 1 proceeds be divfded equally to both, parties. \, ' Dissatisfied . with I that decision of Primary Court, t~e .... , Appellant filed the appeal to the District Court. . Essentially the ' appeal 'was against the division of the matrimonial properties. The Appellant attacked the decision of the trial court that it erred in law Jnd fact by ordering half share from the ~ale proceeds of l . . . the all~ged house and other assets because there was no I I evidencie of their existenc~ and no evidence was led to support that th~ Respondent contributed anything. in acquiring those items . . The District Court (J.W. Manolo, D.M.) based his decision on one of the _statements of the Appellant in the trial court that the alleged properties were jointly owned, "Tuna mali kama nyumba ya kuishi iko Isoka pamoja na vyombo vya ndani kama alivyosema mdai. ,; He ther:efore dismissed the appeal. i I · T~e appellant has preferred this appeal to this Court. Mr. Mkwata,. learned counsel represented him. In his Memoran_durn ~ of Appeal and written submissions by Mr. Mkwata, advocate, wh,o · submitted that the proceedings before the Primary Court were annullity for want of a prerequisite valid certificate from a· competent Marriage Conciliatory. Board. Secondly, both low~r . , . courts erred in law in holding that the Respondent was. entitled to half value of the house and other matrimonial assets. That. decision was made. without having regard to the custom of the 2 'community to winch the parties belonged,. the extent of ttf¢ contribution made by each party. towards the acquisition of· th:e <}t:.· assets a,nd the needs of the infant children of marriage; l , I !! With . r;egard to . the Certificate from the Marriage Conciliatory . Board, Mr.· Mkwata learned advocate argued that, Bakwata was not the proper forum and therefore could not issue the certificate . ( . declaring that that body had failed to reconcile the parties. The l • only body empowered is the Ward Tribunal under the Ward Tribunal ;Act No. 7 of 198.5 .. He also cited to this court the case of Ahmed Ibrahim Vs. Atikati Iddi, High Court of Tanzania at Mbeya (PC. Civil Appeal No. 40 of 2003 (unreported). Among other things, Justice Lukelelwa held; "I go along with Mr. B.P. Mkwata, learned advocate of the: appellant, Bakwata Conciliattion Board which was a Community Conciliation Board established under Section 102 (2) of Law of Marriage Act, ceased to i have jurisdiction in conciliation matters which could i • lead to an issue. of a certificate that it has failed to . . resonate the parties. In my view, Bakwata, is at liberty to undertake marriage conciliation activities and in case of failure they have to refer the parties to Ward Tribunals to continue with the process of . conciliation and ultimate issuance of a . certificate in case of failure.,, Further to that, Mr. Mkwata, learned counsel c:1rgued that 3 \:•:1111.•c: ·. +:, 1,. ·: (-:-1:\'. ,_ .,,: -,-! ~ ~ - - ~ - - - - - - - - - - - · 4 · : . . · • - ~ ;_, ~·,•,- .. i the order regarding division o{ matrimonial assets -d.iGt_ not ta~,~· , into ac~ount I . :. the infant three. children • ·of . marriage and the extent ., . . of the ~esponoent's. contribution towards the acquisition of thos·e assets ride Section 114 (2) (B) of the Law Marriage Act, 1971. In the instant case, a contribution by a spouse could be valued in money) property or work but not domestic chores. On the other hand Kudra Burhan MJosi, submitted that the requirerrent of the Certificate from the Ward Tribunal was a. I . technicality which aimed· at delaying justice to the partie~. Therefore, it is not proper to declare the proceedings in the lower j . · i court null and void. · Wi~h regard to her contribution to the matrimonial assets, . I the Respondent l . further submitted that, cooking food for the family, \washing clothes and other domestic chores were a I · contribu:tion to the matrimonial assets and therefore entitle her to claim a share in the alleged assets. In :the lig.ht of the foregoing, two major issues emerge, these are as follows; (1} Whether the· matter was referred to the i Conciliation Board. Whether the Respondent is entitled to a share i in the matrimonial assets. \ r would I start with the first issue, . whether the matter was I I referred to the Conciliation Board. 4 ;. . . . am give11: to understand that, the circumstances differ . . . ~ l i . . from. o~e case to another. In this case, circumstances suggest that th~re was cruelty to the part of the Appellant th·erefore making\ difficult to the Respondent go to· the Ward Tribunal for I ' reconciliation.- The Appellant chased the Respondent and then marr_ied another woman be.fore the marriage was formerly dissolved in the court of law. Th~ trial court record speaks by itself; Ugomvi ulikuwepo kidogo kidogo mnamo tarehe . 28;1.2007 mlalamikaji a/irudi kutoka safarini alidai kw?Jmba mimi ni mwizi wa mifuko (sulphate) ya i kutunzia pumba hivyo alitaka niondoke kwake. A!ihmba nikusanye kila kilicho changu~ Nilimkatalia aliiema kwa nini ninang'ang'ania ndani. I Alifunga ' mlango a/ichoinoa kisu alitisha kunichoma. Nilimuomba asiniue ndipo nilipofunga nguo za mtoto nikaondoka kwa gari tena aliyokodi yeye. Niltondoka tarehe 29.1.2007 tarehe 11.2.2007 ·mdaiwa alifunga ndoa na mtu mwingine~ ... '~ ; ' In view 6f the respondent's statement in the lower court there · was an._ element of cruelty and desertion, the appellant was a ' deserter. i I i Des~rtion is defined in the case of Marim Tumbo Vs._ : Harold T;umbo 1983 TLR 293, as fol.lows; , 5 .. "It is settled that where one spouse behaves in such_ a a ,:nanner that the other is virtually compelled· to · l . lea'.ve, the former may in law be deserter, it is l . inzperatlve for there to be conduct which amounts to dismissal from consortium'~ ! ! .i i ln \ the · instar:it appeal the behavior of the Appellant amountep to deserter, because he c·ompelled the Respondent to leave. the matrimonial home. I That being the case then, it would be difficult for her to go to the ward tribunal to seek certificate which would show that there was a reconciliation before the matter was sent to court. The!I circumstances - of this appeal are relevant to. Paragraphs qfJ of the Proviso to Section 101 of the Law of Marriage i (a) and Act, 197~ Cap: 29 R.E. 2002, that the court is at liberty to ,; dispense \with \ . reference to the Marriage Conciliato.ry Board where . it is satisfied ·that the petitioner alleges that he or she has been I • I i deserted iby and does not know the whereabouts of his or her spouse". and (f)- where· the court is satisfied that th-ere are extraordinary circumstances which make reference to the Board impracticable." · In comtiination of· two instances mentioned above the - Respondeht. did not find any "'!ay to reconcile with the Appellant before going to court. Bakwata Certificate was enough to commenc~ the proceedings in the Court of law. l II l 6 I T~e case of Ahmed Ibrahim Vs. Atikati Iddi, (supra)/i~. 1· . ·. . : differer;1t I from the present . . case, because . in that case the Judge . .... I . was of the view that, Section. 101 (a) - (f) of th.e Law Marriage 1 Act, 1~71 were not applicable. . . i i ; Coming to the issue of division of matrimonial assets, I am: given to understand that the Respondent was a housewife, that alone did not denie her.rights in the matrimonial ·assets. The· Court of Appeal speaking through Nyalali, C.J. as he . then was Jn the case Bi Hawa Mohamed Vs. Ally Sefu 1983 TLR, held; ' "Since the welfare of the family is an essential j component I of: the economic activities of a family man o:r woman it is proper to ·considei- contribution to the ! a;cquisition of the matrimonial or family assets, the i i joint efforts and work towards the acquiring of the asseJs have to be construed as embracing the domestic efforts 'or' work of husband and wife." The case referred above is a breakthrough to housewives and - infact Jt has done away with archaic (very old-fashioned) ideas ' which prevailed those dark days when a woman was regarded. as ; a mere chattle. I ! urprisingly in this appeal, the Appellant himself supported 1 the pr!inciple found in Bi Hawa's case (supra), that the alleged 7 4, ~---·--·-~- . assets the house inclusive were jointly. owned. This is what he i said in the trial· court; . ! I "Tuna : . I I . . . na rombo vya ndani kama alivyosema mdai." • mali kama nyumba ·ya kuishi iko Isoka pamoja . i In yiew of that statement, the Appellant admitted that the assets were jointly owned. That being the case, I do not see the reason why those properties should not be divided equally. Th~ issue concerning Children wtio were born at the time ' the marriage was still subsisting was equally resolved by the trial court an~ it was not brought by anyone. on appeal. It is therefore . i not a subject which will affect the division of the matrimonial assets. I • .- . In ~um, I would dismiss this appeal wi~h costs and confirm i the decis)on of the Primary. Court and that of the District Court. I, ~VWY~ L.fvl:K. UZIA, JUDGE 27/8/2009 Rigt,t of appeal explained. , , ~ L.M.K. UZIA, JUDGE 27/8/2009 8