20140210 TZHC Dar es Salaam

r IN THE HIGH COURT I OF TANZANIA I (DAR ES SALAAM DIST~ICT REGISTRY) AT DAR ES SALAAM I CIVIL APPEAL NO. 90 OF 2013 1 I (Original Temeke District Court Matrimonial Cause No. 1 of 2012) 1 , I ! I RAHMA AWADHI ALLY ..................... ~ ...................... APPELLANT . I I Versus I . FAISAL SALIM SALMAN ...................................... j·· iESPONDENT JUDGMENT I i I F. Twaib, l: The parties to this appeal were married in Islamic form on 15th September 1 1 1982. Their marriage was blessed with four issues, all of them girls. These are Fahma, Najat, Biyeye and Saphia. Years later, th.e pa~ies experienced irreconcilable differences. An attempt at reconciliation thrdugh Baraza Kuu la Waislamu Tanzania (BAKWATA) did ~ot succeed and, on 18th January 2011, a talakwas 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, equail distribution of matrimonial properties, maintenance, and an order to co'ntinue receiving I rents from the house/shop that the respondent had allowed her to rent out at a house situate at Kitunda Street. Ih his answer to .1the petition, the respondent cross-petitioned for division of another property at Mtoni Kijichi which he claimed to have been jointly c;Kquired. In a judgment delivered on 15th March 2013, the District Court 8issolved the fajriage and made I Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (Jmt Feb 2015) 1 I I some pronouncements with regard to m1trimonial properties that were at issue in the proceedings. It also granted lthe appellant Tsh~. 450,000/= as maintenance during the four months of eddat : I, At the beginning of the hearing, the ~istrict Court ta I ed five issues, namely: ! 1. Whether the marriage had irreparably broken doJm; I i I 2. Whether the parties· are entitled to equal shares [in] matrimonial properties [three houses were at issue, namely, onf house at Plot. No. 33, Njinjo Street, Temeke, orie . house on Plot I No. 23, Block 3, Mtoni Kijichi, and one house . o~ Plot No. 114, I Kitunda Street, I Temeke]; ,. i. 1: ' i' 3. Whether the three houses aforesaid are matrimbnial properties I strictly so-called; ! i 4. Whether it was proper for the petiJioner (appella: t) o dispose of the 1 house at Mtoni Kijichi to her childrJn; I 5. What are the rights of the parties?, I After hearing evidence from the parties and their witne ses, the District Court answered these questions varibusly, and ~ad~ the following conclusions: I I I I I ' 1. The marriage had irreparably bro~en down. The District Court thus dissolved the marriage; i i Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (!mt Feb201S} 2 '' 2. In respect of the three houses, the,court found aJ fo lows: a. The house at Njinjo Street w~s the only maltriJonial property; b. The house at Mtoni Kijichi belonged to t~e lppellant alone, and she was therefore entitl~d to dispose of it to the children as she did; , c. The house at Kitunda Street belonged in tua; shares to the respondent and his brother,; one Abeid sa!u~ Magi, and that the appellant had not contributed to its ac~uisition and/or I improvement; !, I I I i I 3. The appellant was not entitled to uttah under Lslainic law because ml' she had herself asked for talak. • ,I I' i The learned trial Magistrate ruled that the house at ~jinilo was the only matrimonial property, the one at Mtoni Kijichi belonged to the appellant I alone (but was later transferred to the parties' daughters)l and the one at Kitunda belonged partly to the responde!ht and partly to fo!beid Salim Magi in equal shares. He found no contributifn made by tpe appellant to the acquisition or improvement (if any) of th¢ houses at Nj\ni9 and Kitunda. In essence, the learned trial magistrate accepted the official registration of each of the properties as representing the parties' respbct/ve ownership of all the three properties in dispute. I The appellant was not entirely satisfi~d with these findings, I and has preferred the present appeal. Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (Jmt Feb 2015) 3 i The first ground is a complaint againstj the decree as elctracted by the lower court. Briefly, the appellant's contentions are well su~ marised in her . lawyer's written submissions, where he states that "the District Court's 1 1 judgment contained elaborate decisions but the accompanying decree was ' I devoid of orders for sought reliefs or [~ontained] vaguely stated ones." These are, according to Mr. Kambaniwene, learne~ dounsel for the appellant: ! I I I • Divorce was granted but not decre~d. I • A house at Njinjo Street, Temeke, was declared ma rimonial but no order was given as to its division. , i I I i • Contrary to evidence on record showing that a hduse at Kitunda was 1 acquired by joint efforts, the Magistrate . not on 1y beclared I it non- matrimonial but also no mention was made of it in the decree. I I • The Magistrate unreasonably withheld the appellant's right to ! Muttah and maintenance as declared and granted to her by BAKWATA. I . I I I I Learned counsel for the appellant's first• attack was ~gainst I the decree, I 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: ,· I The decree shall agree with the judgment; it s~all contain the number of the suit, the names and description. of, the parties and I particulars of the claim and shall ~pecify clearly the relief granted or other determination of the suit. ' '' I think we can dispose of this issue without much ado. Learned counsel for . I the respondent does not dispute the I fact that the lecree does not Big Boy/Judiciary/Rahm• Awadh v Feisal Salim Salman (Jmt Feb 2015) 4 I correctly reflect the reliefs granted and some other findings in the judgment of the District Court. However, ,,as she has submitted, the decree ' I could be corrected by the court issuing itj~ under section 9~ of the CPC. By applying this section, whatever defects, omissions or additions in the decree can be rectified in order for it td> 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. Jhe first ground of appeal is thus superfluous and it is distnissed. I . i The other argument advanced in this appeal relates to. what the appellant I • I considers the lower court's error in not granting muttah !n favour of the appellant, which was granted to her by BAKWATA to the tune of Tshs. 29,000,000/= (assessed at Tshs. 1,000)0001= per year times 29 years). I Counsel for the appellant has attacked the District Court's reasoning for refusing to grant his client muttah on g~ounds that she was the one who demanded the talak, and the husband w~s compelled t6 is~ue it. I In response, Mrs. Chuma,· 1earned counsbl for the respond:ent, pointed out I that the muttah granted to the appellant by BAKWATA was not properly procured, in that her client was not giyen any opportunity to be heard thereon. The testimony of the Secretaty General of1 sJkwata, PW2 Ali . I Mohamed Ali, also supports this asserition. The appell 9nt did not say anything in response, perhaps rightly so~ as the responde[nt'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 aJpellant's clai~ fo~r muttah in this appeal is not pegged on any of her grou111ds of appeal. Ho'1Jever, as is clear from the above, it would in nonethelesJ have no merit ahd I would have I dismissed it. Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (Jmt Feb 2015) 5 The second and third grounds of appeal are what constitute the most 9 strongly disputed issue in this case, nam~ly, matrimoni 1 p~operties. Three landed properties are involved: one houSe at Njinjo, ohe rt Mtoni Kijichi, and one at Kitunda. · , I will begin with a discussion on the hoje at Kitunda Strel. The evidence I 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 1undivided sharesi The appellant I . 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 I contributed towards the payment of this sum as she was working at the time, and that the respondent allowed hier to collect rent rrom one of the shop frames. I The appellant's claim to a share of this p~operty is therefore pegged on the assertion that she contributed towards t~e acquisition of ohe half of it that was formerly owned by Abeid Salim Magi. But !is this the case? Unfortunately for the appellant, the evidence does n9t support that assertion. She has not produced any docpment to refute t~e documents iof transfer that show that there has been I any change of ormership 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 respontjent. For this reason, neither the appellant nor the respondent can claim any share iri t~e one half that legally belongs to Abeid Salim Magi. : I I I I With this finding, only one half of i the property c~n possibly be matrimonial. As for the other half, the same is still registJred in the name of the respondent. Apart from her own oral testimony, the appellant did not produce any other evidence, oral qr documentary, t0 show that she Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (Jmt Feb 201S) 6 contributed towards its improvement ,in ~ny way. In t~e Jbsence of such evidence, the learned RM was right in treating this half as Jtill 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 I, I this was a gesture that was only ma~e during th~ pendency of the marriage. It cannot transfer any right of ownership to; thJ appellant. And since the marriage has now been dissol}'ed, there would ibe no basis for , I her to continue enjoying this favour, if s~e ever did. The petitioner herself did not even say how much was the rent she was receivin~ from the shop frame. I The findings just made defeat the appellant's third ground of appeal, I . ' ! which is dismissed. I will now move to determine the rights. of the parties, if any, as regards the house at Mtoni Kijichi. This pro perty was acquired during the 1 subsistence of the marriage. However, It was first regist~red in the sole name of the appellant, who subsequently decided to transfer it to the three girls who are the issues of the marriage. ' I l I 1 However, the respondent now says that ~e suspects that t e transfer deed was forged. He offers two reasons for1 his suspicions: that "it was not normal for the Ministry of Land to sta~p the certificate of title effecting 1 . I transfer and at the same time on the same page mehtioning the names 1 , I and photos of the transferee", and that the Deed of Gift showed that the transfer was made to only one of the children and thJt there was no I mention of the other transferees. : Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (]mt Feb 201S) 7 The respondent is also complaining th~t even though h!e had adduced evidence to show that he had contribu~ed Tshs. 2,000,o oo towards the 1 acquisition of this property, the learned: trial Magistrate decided that the property does not qualify to be matrimonial. However, in t~e District Court, the respondent's position, even though he had prayed fot division of the property, was that he was aware and w~s involved in Ith~ transfer of the property to their daughters. He cannot !be heard at this point in time to retract from this position. The principle df estoppel applies[: see Shinyanga Regional Trading Co. Ltd. & Anor v National Bank of Commerce ( 1997) TLR 78. i l In addition, with due respect, counsel for the respondent , an not raise this argument at this stage. If her client wantbd to challenge th:is finding by the 1 trial court, he should have filed a cross-appeal. He did not. The decision of the trial court on this point cannot the~efore be distl.lrbed. In any case, 1 even if there was no transfer to the c~ildren, there is Jnough evidence that the property belonged solely to the /appellant. The a+gation that the respondent contributed Tshs. 2,000,00Q/= towards its afquisition in the circumstances of this case is not sufficierit to make it matrimonial. Counsel for the appellant agreed with .~he trial courtj thlt the house at , I Njinjo was matrimonial property, but faulted the court's omission to make any orders for its division among the fo~mer spouses. He maintained that the lower court should have divided the house equally amc;mg them, in line 1 with the provisions of section 60 (b) of the Law of Ma rriage Act C'the LMA''), which states: I / I / Where during the subsistence bf a marriage, ny property is I acquired- Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (!mt Feb 2015) 8 11 (a) in the name of the husband or of the y-.,ife, there shall be a rebuttable presumption that thf ~roperty belongs absolutely to that perJon, to the exclusibn of his or her 1 spouse; I I (b) in the names of the husband and wife jointly, there I shall be a rebuttable presumption t:hati their beneficial 1 interests therein are e~ual. ' i I This provision, however, would only ap~ly once it is esta~lished that the property "is acquired in the names of the husband and wjfe jointly." With i respect, I do not see how or where in fhe lower court's [record that this was established. The evidence adduced at the trial sh6ws~-that this house1 is owned and registered in the names of the respond~nt and his brother 1 Yusuf Salum Suleiman. The appellant d9es not feature anl where. In fact, the evidence available is that the house :was brought by ~he two brothers I' , from moneys they inherited from their late father, Salu1 Suleiman, who died in 1981. The appellant cannot (anb in fact does not) claim to have had any contribution in that source of funds. Documentary evidence show that the Cer:ificate of Occupa ncy (No. 39446) 1 11 is still in the names of the two brothers,j and shows that they brought the ' I I property in January 1984. They occupy both houses, ~ach one occupying one half of it. The appellant has not disputed any of this-which means i that she cannot claim, as she in essenc~:, does in respect of this property, that section 60 (2) (b) of the LMA applie$. I i ; The appellant's only claim is that she isl entitled, as aIwife, to a share of this house (the part that belongs to the respondenti), ~ince it was the matrimonial home (or rather part of lit) and she Jas responsible for cleaning it. However, the respondent asserts that she ha~ not shown how Big Boy/ludiciary/Rahma Awadh v Feisal Salim Salman (Jmt Feb 2015) 9 i I 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 acquiJed from the re!pondent's own .I I earnings, but from his father's estate. T~ere is also no eyidence that the property had undergone any substantial !improvement, in terms of section ' i 114 (3) of the LMA. In the celebrated case of Bi Hawa' Mohamed v Ali I Sefu, it was held that: (i) Since the welfare of the family is an essential component of the economic activities bf a family man jor woman it is proper to consider contribution by a spouse to the welfare of the family as contribution td the acquisitior or matrimonial or family assets; . 1 (ii) the "joint efforts" and "wo;k towards the Jquiring of the assets" have to be construed as embracing the domestic I, . I "efforts" or "work" of husband and wife; 1 I At the trial, the appellant had given eJidence to show ihat, apart from I performing her wifely duties, she had been doing various businesses and thus contributed in some way to the welfare of the fami:ly. But it is also clear from the evidence that her contrib~tion was smaller ~ompared I to the respondent's, who provided the family with all its n~eds. Hence, in concluding that the house at Njinjo was matrimonial, thJ trial Magistrate based his· decision on the appellant:s' contribution inI terms of her performance of domestic duties in the matrimonial ~01e. However, as 1 counsel Kambamwene rightly submitted, the magistrate d_id not make any i I orders consequent upon this finding. rhis was an errori on the learned I Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (Jmt Feb 2015) 10 I I RM's part, but whether it resulted in any: denial of the appellant's share in the properties is just as crucial, and woul~ need to be determined. I In this regard, this court has two options: It can remit_th~ 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 ~viJence on record I suffices to make a finding one way or the other, it would be in the interests of justice if the matter is deter~ined by this cou1. The most important factor that comes to mind is that, it would appear from the manner in which the parties registered their lqnded properties that they intended them to be owned adcording to the,ir r~spective official records. All the properties (or their respective parts) werJ acquired in the , I names of one or the other spouse. As a result, even though it would . i appear that the respondent, over all, had better means than the appellant, he could only manage to buy one half share of the houselat Njinjo on his own. The other half share of the house at Kitunda w. s bought from proceeds from the estate of his late father, which he shared with his brother. : , 1 1 At the same time, the appellant was able to buy one wlol • house at Mtoni I Kijichi, register it solely in her own name, and then transfer it to their three daughters as she desired. In othe~ words, the spou~es had more or less equal shares in the estate, with the appellant owining one whole I house, and the respondent owning two half-houses. There is no suggestion of any substantial differences in the values of the properties. I '· i thus do not think it would be fair to divide any part of the respondent's ' i two half shares in the properties at Njinjo and/or Kitu~da in favour of the I appellant. Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman ()mt Feb 2015) 11 • I I . I also see no evidence to rebut the preLmption in se.ction 60 (a) of the 11 · I LMA in respect of any of the three land~d properties. Hence, I am of the !: i I firm view that the circumstances are such that it would !De fair, just and indeed equitable, to leave the propertie~ in the handsl of their respective owners according to the records of the Land Office, aJ the parties clearly meant it to be. :' I ! I In conclusion, the appeal is dismiss~d in its entire 1. As this is a matrimonial case, in view of section 90 df the LMA, I Jouid not make any order as to costs. fl •! Ii th DATED and DELIVERED at Dar es Salaa~ this 10 day •f lebruary 2014. i! I F.A. T,Jib I' 1 Judge,, 'i Big Boy/Judiciary/Rahma Awadh v Feisal Salim Salman (!mt Feb 2015) 12