rahma awadhi ally vs faisal salim salman 2014 tzhc 2166 10 february 2014

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT PAR ES SALAAM CIVIL APPEAL NO. 90 OF 2013 (Original Temeke District Court Matrimonial Cause No. 1 of 2012) RAHMA AWADHI ALLY.........................................APPELLANT Versus FAISAL SALIM SALMAN.......................................... RESPONDENT JUDGMENT F. Twaib, J: The parties to this appeal were married in Islamic form on 15th September 1982. Their marriage was blessed with four issues, all of them girls. These are Fahma, Najat, Biyeye and Saphia. Years later, the parties experienced irreconcilable differences. An attempt at reconciliation through Baraza Kuu la Waislamu Tanzania (BAKWATA) did not succeed and, on 18th January 2011, a talak was issued to dissolve the marriage under Islamic law. The appellant then filed a petition at the Temeke District Court for dissolution of the marriage, a decree of divorce, equal distribution of matrimonial properties, maintenance, and an order to continue receiving rents from the house/shop that the respondent had allowed her to rent out at a house situate at Kitunda Street. In his answer to the petition, the respondent cross-petitioned for division of another property at Mtoni Kijichi which he claimed to have been jointly acquired. In a judgment delivered on 15th March 2013, the District Court dissolved the marriage and made Big B oy/Judiciary'R ahm a A w adh v Feisal Salim Salm an (Jm t Feb 2 0 IS ) 1 some pronouncements with regard to matrimonial properties that were at issue in the proceedings. It also granted the appellant Tshs. 450,000/= as maintenance during the four months of eddat. At the beginning of the hearing, the District Court framed five issues, namely: 1. Whether the marriage had irreparably broken down; 2. Whether the parties are entitled to equal shares [in] matrimonial properties [three houses were at issue, namely, one house at Plot. No. 33, Njinjo Street, Temeke, one house on Plot No. 23, Block 3, Mtoni Kijichi, and one house on Plot No. 114, Kitunda Street, Temeke]; 3. Whether the three houses aforesaid are matrimonial properties strictly so-called; 4. Whether it was proper for the petitioner (appellant) to dispose of the house at Mtoni Kijichi to her children; 5. What are the rights of the parties? After hearing evidence from the parties and their witnesses, the District Court answered these questions variously, and made the following conclusions: 1. The marriage had irreparably broken down. The District Court thus dissolved the marriage; B ig B o y/Judiciary'R ahm a A w adh v Feisal Salim S alm an (Jm t Feb 2015) 2 2. In respect of the three houses, the court found as follows: a. The house at Njinjo Street was the only matrimonial property; b. The house at Mtoni Kijichi belonged to the appellant alone, and she was therefore entitled to dispose of it to the children as she did; c. The house at Kitunda Street belonged in equal shares to the respondent and his brother, one Abeid Salum Magi, and that the appellant had not contributed to its acquisition and/or improvement; 3. The appellant was not entitled to muttah under Islamic law because she had herself asked for talak. The learned trial Magistrate ruled that the house at Njinjo was the only matrimonial property, the one at Mtoni Kijichi belonged to the appellant alone (but was later transferred to the parties' daughters), and the one at Kitunda belonged partly to the respondent and partly to Abeid Salim Magi in equal shares. He found no contribution made by the appellant to the acquisition or improvement (if any) of the houses at Njinjo and Kitunda. In essence, the learned trial magistrate accepted the official registration of each of the properties as representing the parties' respective ownership of all the three properties in dispute. The appellant was not entirely satisfied with these findings, and has preferred the present appeal. B ig B o y 'J u d ic ia ry ’R ahm a A w adh v Feisal Salim S alm an (Jm t Feb 2015) 3 The first ground is a complaint against the decree as extracted by the lower court. Briefly, the appellant's contentions are well summarised in her lawyer's written submissions, where he states that "the District Court's judgment contained elaborate decisions but the accompanying decree was devoid of orders for sought reliefs or [contained] vaguely stated ones." These are, according to Mr. Kambamwene, learned counsel for the appellant: • Divorce was granted but not decreed. • A house at Njinjo Street, Temeke, was declared matrimonial but no order was given as to its division. • Contrary to evidence on record showing that a house at Kitunda was acquired by joint efforts, the Magistrate not only declared it non- matrimonial but also no mention was made of it in the decree. • The Magistrate unreasonably withheld the appellant's right to Muttah and maintenance as declared and granted to her by BAKWATA. Learned counsel for the appellant's first attack was against the decree, reasoning that it did not conform to the requirements of Order XX rule 6 (1) of the Civil Procedure Code, Cap 33 ("CPC"). The sub-rule states: The decree shall agree with the judgment; it shall contain the number of the suit, the names and description of the parties and particulars of the claim and shall specify clearly the relief granted or other determination of the suit. I think we can dispose of this issue without much ado. Learned counsel for the respondent does not dispute the fact that the decree does not B ig B oy/Judiciary/R ahm a A w adh v F eisal Salim Salm an (Jm i Feb 2 0 IS ) 4 correctly reflect the reliefs granted and some other findings in the judgment of the District Court. However, as she has submitted, the decree could be corrected by the court issuing it, under section 96 of the CPC. By applying this section, whatever defects, omissions or additions in the decree can be rectified in order for it to conform to the contents of the judgment. Those shortcomings cannot, with due respect to the learned advocate for the appellant, constitute a ground of appeal. The first ground of appeal is thus superfluous and it is dismissed. The other argument advanced in this appeal relates to what the appellant considers the lower court's error in not granting muttah in favour of the appellant, which was granted to her by BAKWATA to the tune of Tshs. 29,000,000/= (assessed at Tshs. 1,000,000/= per year times 29 years). Counsel for the appellant has attacked the District Court's reasoning for refusing to grant his client muttah on grounds that she was the one who demanded the talak, and the husband was compelled to issue it. In response, Mrs. Chuma, learned counsel for the respondent, pointed out that the muttah granted to the appellant by BAKWATA was not properly procured, in that her client was not given any opportunity to be heard thereon. The testimony of the Secretary General of Bakwata, PW2 Ali Mohamed Ali, also supports this assertion. The appellant did not say anything in response, perhaps rightly so, as the respondent's argument is strong and compelling. It was thus proper for the trial court not to follow BAKWATA's decision. It was improperly procured and in any case not binding on it. I have noted that the appellant's claim for muttah in this appeal is not pegged on any of her grounds of appeal. However, as is clear from the above, it would in nonetheless have no merit and I would have dismissed it. Big B oy/Judiciary/R ahm a A w adh v Feisal Salim Salm an (Jm t Feb 2 0 IS) 5 The second and third grounds of appeal are what constitute the most strongly disputed issue in this case, namely, matrimonial properties. Three landed properties are involved: one house at Njinjo, one at Mtoni Kijichi, and one at Kitunda. I will begin with a discussion on the house at Kitunda Street. The evidence shows that it was acquired before the parties' marriage, i.e., in September 1978. It is registered in the name of the respondent and one Abeid Salim Magi as tenants in common in equal undivided shares. The appellant maintains that she had convinced the respondent to buy off Abeid Salim Magi, which he did, at the price of TShs. 8,000,00/=. She says she contributed towards the payment of this sum as she was working at the time, and that the respondent allowed her to collect rent from one of the shop frames. The appellant's claim to a share of this property is therefore pegged on the assertion that she contributed towards the acquisition of one half of it that was formerly owned by Abeid Salim Magi. But is this the case? Unfortunately for the appellant, the evidence does not support that assertion. She has not produced any document to refute the documents iof transfer that show that there has been any change of ownership of the property. Hence, the property is not, as the appellant would have us believe, in the sole name of the respondent. It is still owned jointly by the said Abeid Salim Magi and the respondent. For this reason, neither the appellant nor the respondent can claim any share in the one half that legally belongs to Abeid Salim Magi. With this finding, only one half of the property can possibly be matrimonial. As for the other half, the same is still registered in the name of the respondent. Apart from her own oral testimony, the appellant did not produce any other evidence, oral or documentary, to show that she B ig B oy<Judiciary/R ahm a A w adh v Fcisal Salim S alm an (Jm t Feb 2 0 1 S) 6 contributed towards its improvement in any way. In the absence of such evidence, the learned RM was right in treating this half as still the property of the respondent. As for the claim based on rentals received from one of the shop frames of the property, I am not inclined to accept the respondent's position that this was a gesture that was only made during the pendency of the marriage. It cannot transfer any right of ownership to the appellant. And since the marriage has now been dissolved, there would be no basis for her to continue enjoying this favour, if she ever did. The petitioner herself did not even say how much was the rent she was receiving from the shop frame. The findings just made defeat the appellant's third ground of appeal, which is dismissed. I will now move to determine the rights of the parties, if any, as regards the house at Mtoni Kijichi. This property was acquired during the subsistence of the marriage. However, it was first registered in the sole name of the appellant, who subsequently decided to transfer it to the three girls who are the issues of the marriage. However, the respondent now says that he suspects that the transfer deed was forged. He offers two reasons for his suspicions: that "it was not normal for the Ministry of Land to stamp the certificate of title effecting transfer and at the same time on the same page mentioning the names and photos of the transferee", and that the Deed of Gift showed that the transfer was made to only one of the children and that there was no mention of the other transferees. B ig B oy/Judiciary.'R ahm a A w adh v Fcisal Salim Salm an (Jm t Feb 2015) 7 The respondent is also complaining that even though he had adduced evidence to show that he had contributed Tshs. 2,000,000 towards the acquisition of this property, the learned trial Magistrate decided that the property does not qualify to be matrimonial. However, in the District Court, the respondent's position, even though he had prayed for division of the property, was that he was aware and was involved in the transfer of the property to their daughters. He cannot be heard at this point in time to retract from this position. The principle of estoppel applies: see Shinyanga Regional Trading Co. Ltd. & Anor v National Bank o f Commerce (1997) TLR 78. In addition, with due respect, counsel for the respondent cannot raise this argument at this stage. If her client wanted to challenge this finding by the trial court, he should have filed a cross-appeal. He did not. The decision of the trial court on this point cannot therefore be disturbed. In any case, even if there was no transfer to the children, there is enough evidence that the property belonged solely to the appellant. The allegation that the respondent contributed Tshs. 2,000,000/= towards its acquisition in the circumstances of this case is not sufficient to make it matrimonial. Counsel for the appellant agreed with the trial court that the house at Njinjo was matrimonial property, but faulted the court's omission to make any orders for its division among the former spouses. He maintained that the lower court should have divided the house equally among them, in line with the provisions of section 60 (b) of the Law of Marriage Act ("the LMA"), which states: Where during the subsistence of a marriage, any property is acquired- B ig B oy/Judiciary/R ahm a A w adh v F eisal Salim Salm an (Jm t Feb 2015) 8 (a) in the name of the husband or of the wife, there shall be a rebuttable presumption that the property belongs absolutely to that person, to the exclusion of his or her spouse; (b) in the names of the husband and wife jointly, there shall be a rebuttable presumption that their beneficial interests therein are equal. This provision, however, would only apply once it is established that the property "is acquired in the names of the husband and wife jointly." With respect, I do not see how or where in the lower court's record that this was established. The evidence adduced at the trial shows that this house is owned and registered in the names of the respondent and his brother Yusuf Salum Suleiman. The appellant does not feature anywhere. In fact, the evidence available is that the house was brought by the two brothers from moneys they inherited from their late father, Salum Suleiman, who died in 1981. The appellant cannot (and in fact does not) claim to have had any contribution in that source of funds. Documentary evidence show that the Certificate of Occupancy (No. 39446) is still in the names of the two brothers, and shows that they brought the property in January 1984. They occupy both houses, each one occupying one half of it. The appellant has not disputed any of this—which means that she cannot claim, as she in essence does in respect of this property, that section 60 (2) (b) of the LMA applies. The appellant's only claim is that she is entitled, as a wife, to a share of this house (the part that belongs to the respondent), since it was the matrimonial home (or rather part of it) and she was responsible for cleaning it. However, the respondent asserts that she has not shown how B ig B oy/Judiciary/R ahm a A w adh v F eisal Salim Salm an (Jm l Feb 2015) 9 she contributed to its improvement, and the trial court accepted his argument. It is not disputed that the appellant did not contribute to the acquisition of this house because it was not acquired from the respondent's own earnings, but from his father's estate. There is also no evidence that the property had undergone any substantial improvement, in terms of section 114 (3) of the LMA. In the celebrated case of Bi Hawa Mohamed v AH Sefu, it was held that: (i) Since the welfare of the family is an essential component of the economic activities of a family man or woman it is proper to consider contribution by a spouse to the welfare of the family as contribution to the acquisition of matrimonial or family assets; (ii) the "joint efforts" and "work towards the acquiring of the assets" have to be construed as embracing the domestic "efforts" or "work" of husband and wife; At the trial, the appellant had given evidence to show that, apart from performing her wifely duties, she had been doing various businesses and thus contributed in some way to the welfare of the family. But it is also clear from the evidence that her contribution was smaller compared to the respondent's, who provided the family with all its needs. Hence, in concluding that the house at Njinjo was matrimonial, the trial Magistrate based his decision on the appellant's contribution in terms of her performance of domestic duties in the matrimonial home. However, as counsel Kambamwene rightly submitted, the magistrate did not make any orders consequent upon this finding. This was an error on the learned Bijj B oy/Judiciary/R ahm a A w adh v Fcisal Salim Salm an (Jm t Feb 2015) 10 RM's part, but whether it resulted in any denial of the appellant's share in the properties is just as crucial, and would need to be determined. In this regard, this court has two options: It can remit the matter back to the trial court for assessment of the appellant's share in this property (if any), or proceed to make the assessment itself. I am of the view that, given the time the matter has taken, and since the evidence on record suffices to make a finding one way or the other, it would be in the interests of justice if the matter is determined by this court. The most important factor that comes to mind is that, it would appear from the manner in which the parties registered their landed properties that they intended them to be owned according to their respective official records. All the properties (or their respective parts) were acquired in the names of one or the other spouse. As a result, even though it would appear that the respondent, over all, had better means than the appellant, he could only manage to buy one half share of the house at Njinjo on his own. The other half share of the house at Kitunda was bought from proceeds from the estate of his late father, which he shared with his brother. At the same time, the appellant was able to buy one whole house at Mtoni Kijichi, register it solely in her own name, and then transfer it to their three daughters as she desired. In other words, the spouses had more or less equal shares in the estate, with the appellant owning one whole house, and the respondent owning two half-houses. There is no suggestion of any substantial differences in the values of the properties. I thus do not think it would be fair to divide any part of the respondent's two half shares in the properties at Njinjo and/or Kitunda in favour of the appellant. B ig B oy/Judiciary/R ahm a A w adh v Feisal Salim Salm an (Jm t Feb 201$) 11 I also see no evidence to rebut the presumption in section 60 (a) of the LMA in respect of any of the three landed properties. Hence, I am of the firm view that the circumstances are such that it would be fair, just and indeed equitable, to leave the properties in the hands of their respective owners according to the records of the Land Office, as the parties clearly meant it to be. In conclusion, the appeal is dismissed in its entirety. As this is a matrimonial case, in view of section 90 of the LMA, I would not make any order as to costs. DATED and DELIVERED at Dar es Salaam this 10th day of February 2014. F.A. Twaib Judge B ig B oy/Judiciary/R ahm a A w adh v Feisal Salim S alm an (Jm t Feb 2015) 12