19901109 TZHC Dar es Salaam

\tic Ub~ IN THE tlIGH":~OURT OF TANZANL\.. AT JAR BS SALA.1115 PC CIVIL APJ£AL NO.· 73 OF 19G7 .w.dN.A SANi"NE l\iK\~·.E;'l'.l, ••••••• • .iif.J?LIC ..UilT versus MUSSA SULTJ.NI ••• , ••• _••••••• RES.20NJENT JUDGMENT hili.SlJ.NCHJiJ I J This is a seeond a~peal. The appellant and respondent were wan and wife. They had lived-together for 16 years but never got children. In 19~6 matters became sow, The respondent gave his wife a talak. The wife went to oomplain to a conciliation Board. They could not be reconcill~d. The matters then went to court Kinondoni Primary Court. There the appellant presented her ease. Three issues were drawn. 1. Whether the .ma:r:x,iag.e had li.:roken down beyond repairf 2. Did the parties jointly acquil.'& th1;r pro~e:et.¥., 3. Is it true that they built two houses jointly duri?'l.6 thei, marriage? The Pl"imary C·o¥.r-\ adjudicated upon the wa t\er and came to the following de8i~ian: 1. · It was agreed that the L1a:rriage had irrepa:raulY D.:roKe..>:i down. 2. It was hQld that the FO~erty was ~c4uired during their warriage b•t- shs. 10,000/- in addition to another shs,10,000/- given earlier if it was given at all, would be enough compensati.on f.nd would cover t~~- the assets (radio, beds etc.) ,. It was not true that there waiio a hor.ie joint1.Y bu-ilt t,Y then. The ·•. woman found the house - that is, at the time she got i:arried. ,in.;. it was not true that the houses were two, It was onlJ: one house. One remarkable, or call it, significant, aspect ·of the; judgment rf the primary court was that the ~ssessors advised the:-Jagistrate that the piece of paper on which it was written that the . a;ipellant hc:...J received shs. 10,000/- frog the respondent would not )e acce~tei because it had no CCM stamp~ The C0urt then unaniu1ously agreed t0 order the responden ·. to iJart wi- L another shs 10,000/-. The appellant never got satisfied with that decision and. _3_;10 appd.le:..i t0 the Eistrict Court. Her appeal was disallowed. The ~istrict kagistrate agreed with the primary Court that the marriage had indeed irre?~rally bruken down. He also agreed with them that there was no house built Ly ~~eir joint effort to warrant my forwal distribution, i.b:mt the sh~. 10,000/-, th8 learned District Magistrate was of the view that the decision of Laking the res_.:iondent pay another suw of shs. 10, 000/- to the a:cipellant_ ns ~r8_Yc.l_-~_-~--~ rle reasoned th-at the decision cau.1e a00ut because the ;irii..1ary c0ur1- ; - ·-· Magistrate ne-v-er sumwed up t9 the court assessors well, It was th,• vievr of the District Magistrat~~therefore~ that the fact that the chit h~l n: ... /2- 2 stamp of CCM was nJt ~aterial. So long as those who witnessed the docu□ ent it being written gave evidence, the docuwent was authentic. The learned Iiistrict Magistrate, however, felt that as the res.i)onJ.ent crillingly accepted to pay another shs, 10,000/- on top of the pre~ious shs,10~000/- ,. mentioned in the clint, his court could not do otherwise. So, in t_he end, it was held that the appellant be given, or ~e Qale to accept, in the long run, shs• 20,000/-. That sum of shs. 20,000/- would be enough for ooopensation purposes. Incidentally on this docu~ent, may be. I should p)int out that the Court of 1~ppeal of Tanzania in its recent case of lLtiona! Bank ,?f...£?.&g!:.Biu° vs. Tanzania Cigarette Cor.;pany Limited (Civil .Appeal No 11 of 1909 -uniieport~d) · has said that: 11 - - - - - - a docuwent which is wade ·0:1 or in the presence of .both par\j.ee to a dispute is lilore likely to be true or wore co:rra.c.t. tA@ a d.o~~ made only "'o:t one of the parties :l.n the a::>eence. of tha other .re~ardine a watter in disputed" T document got signed by 'both parties, the man and wifa 1 and in prep.n•e of witnesses, who infact caine to testily in Ooart. It is m;v considered opi.ftion it was wrong to reject the docl..4ilent. The appellant, havin~ lost in the District Court n~w app0als to this cour·t. · The we'"~~r'andum ·of ~ppeal of the a_pp~lle.Jlt has 'been i:1.rafte,' by Jr Lauwai .- t ~ ~ . ., . ,, ·: . . . ;, • . . ' ..• It has four ·grounds. If one reads all t,te srounds, lhe gist of -~~e complaint can''·be ·suniwari§ed ·as fcill'owss That: the ..,;.,r'i1.:.;~;y"'ciourt .;rolgly oawe to. tno:t figure of shs ·;(1,000/- as ·oontritn{ti·0n "to the ..1atriw0nial BSfi16t~11 , That the Jiatrit:·.:; foatSistrate al'so wro'nghly'ca..ie· :to the figurt ..;;,r shs_. 20,0JO/- as ~.i:Jpe:·.lants 1 share in 'the ;d'ist:rib.ti.'tio·n :)f raatr:lp~ntal assets" ' I have read the ·proceedings in bot\ l owe;r c::,urts. I aui of the consiJ.err;_; . .. ~J;--ni:On-·-t-nat· -tha issues of 1.iatri..,onial assets were adequately halt with in '. ., : 1 • the pri@ary court and that the decision given there was sound. 'l1he prh1ary court, -after consid.ering the availablfi evtdencf waa •:Jf the vie, that no house had been built during the '.f)endency af ti+e•r oa:rriage; ana ,econdly, the saoe· p'rimary court held that sht. 10,000/• ~hat was psid (wti,h incident.s.lJ.j later got ahanced as it were, t.:> shs. 20,000/- ':JJ the District l'ii,1t;i~trate) was giTen after the a~pellant herself had askei fQr it. In f~ct fte had askoi fo::r. 11ld;futa ~ach0zi", t:J put..it in her own la:r.,guag$, ~ad that mon3y was the "kifuta r;iachozi" she had asked for, 4 gain, wlth regard t'.J the h:Ju,io, thv;:.e '"'"s a definate holding that the house could not for □ an issue as the f:.eue was aoquir.ed by the resp:mdent before he got .ua,ried t0 the appellant. So; the Ct..S..; of Bi Hawa iVioha.wed quoted by 1r Laowai could n-:it -::ie applica'ble hert-. N,jt evGn tne-case· of·Haraid ..,wir Ha,uid v. Maim1)Jla'1J...1!r(1977) LRT 5J could be .1.)plic&blu, a-s .~oid ~s. case ·talks of assessu1ent of C:l!ltributions acquired. during :.;'J..1'r1a 6 0, ••• /3- 3 This is. a second appeal. An appe:llate court, on second appeal., need - not· lightlY disturb .finding's of fact of a trial court ( the priwary Co\lrt in our case) which got upheld. Q,1> .f3:rs·t appeal, unle~.s it is clear on -l'a.~ord. that· the pro.oess by which .~hose. findings of fact were arrived at was patentlY n.¢ng •... I see no w.rong process by which the findings of -fact we.re._a.rri ved a:t ;_ ~. tho trial .('.ollrt ;.."the :priwary court. On the contrary, ~he appr.llant .i••:, . luck.J, that she a~ked .for shs-. 10 1 000/• but in the end got shs. 20,000/-, The a.p1:red. is dismissed in J~s en.·Ur~ly. as this wc:1s a Legal Aid Sbbe ...c case,. I.. make no order as to costs. J • .r,.;. C. I'rLSANCHE JUJG~ )th Nov. 1990 Dr· Lamwai for •he appellant ·Respondent - abseet~ I' certify that. it is a true and conrec,t 4'0PY of the original. v·-. / DEPVTY .ReGlSTRAR