19860225 TZCA Dar es Salaam

·.---~.....,.,....._ IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 15 OF 1986 ROBERT ARAUJO Al?PELLAN'l' Versus ZENA MWIJUMA •o•••••••••••••• RESPONDENT (Appeal from tho:)1.ld.gement of the Hig~ court of Tanzania at1>ftr es Salaam) (Moina; J.) dated 14th March, 1985 .tn (PC) Ci'-:11 AJilpeal ro. _,_ ~ Of 198~ JlJDGEMENT OF THE COURT • ■ ;Tl'le appellant, ~Obert Araujo, titioned for divorce on the • ~ Of hie wife•a desertion. The Pr mary court granted the dec••e on ah• g_.ound• Of the rospondent•s dese, iOft and he, persi1;ent den~al of ...,., iftterc:curee to _the appellant. fu.-the.r oa,.deNd II division a quarter ther•,H>f' to tt\e ll'Olp0ndent .\. - , ~ • 111Winl°"ia1 ..~ f,~ , . ~. - ,.,.. The hu•band ,ippealed to the .District. court. Ir1 a ----- ri • rather c;onfuaca<i !~ _.r~rnent 1:he Reeident Magistrate misconstrued the decision of ihe ,pmec)'I C:0\.\:-t end asserted that the Primary Court h3d granted tho divorce ;n ~SPOUflds Of eruelty -and sexual incapacity on th~ part of the ~ppellant hui;d• 0ft analysing . , the evidence himself, the Resident Magist~ate f1 y found that the decree could not be based on \he husband's •~~ual tneepa~tty. However he upheld the dP.cree on grounds of constructiva deseeii,on on the part of the husband in that the wife was driven sway from 'fle ~atrimonial hOme by the cruel acts of the husband. He slso upheld the order for _the division of the matrimonial asse-ts. On furth~r appeal to the High court~- ·_ne appellant hu~band, while conceding that the rn.3r.-::·:L:.ig2 had :i.r?:<:.:!tY_,· . . .. . · . .cal:ly broket1 dowrt t ton tended that the decree of divo_;:-(;e should ha','·::? :- aee·· c::-::1tcd on the ground of h:1.s wl,fe• s desertion and on his pa_;;',:., wor\4 ·- have been found • guilty ✓ - js he urged that his wife, or to blame for the breakdown of the marriageo and not himseif should 'Ule High court (Maina; - . ~ Jo, found t~nt there wa~ so,n,? ev.itence ·of cruelty on the part of thr- ~<'~· . ~l' t· / •e husbe:·,-·· • •r ·'n VJ.SJ _>J, :,_ _., Of .: husband, but hP.ld that whether thr~ divorce was founded on s e.:;1::;.\elt:J the .I,_.~ 0 r 0 ~ ~ ="- r,•,·),·,'• a•~ c,~ ~1,.·l-r-!..~.a.'•.,..,., .. n.:the 1,.r::.:f:-'2 1 :7. rh,,s,:.t:t.i.,,'1~ i t would not affec;:t the ,, S b,-,•t···•.-,,~n c,,-,.;.. . '- • " --- the• par"'"·i· - l.. es o Accord1' ngly he · neld the concurrent O::'Jc"""·s of thf.? :1.owe.~· ccurts f ·:i:c the division of the trimOnial assetso a peal further: to this Co·...11:·t · upon c CP:ct:~:.°:'Lcat<? by th~ H1gh··.-cot1rt that a int of law is involved in the dccisicng At: th;: .hea.t'ing of the appeal. . ' t~e appellant oppuared befon: us· and arg~::..<~ ti,e ap:r:.,~al in per~on, wl'\ile tte respondent was represented by M.t~ ~ :'1" .... ,, Bo WambalJ., · advocate.,. frQm 1she Legal Aid Committee of the Law Fac-.1lty of the Vniv,:;~r~ity of Oar es S"laam The point of law ce;:·tiried by :tlw :;I.qh court (Mapigano, J..) for [ ou consideration was in the folJ.owihg tertns::, .. "T:1e :u=.::.S'-''-' is whether a party who has been t:,e cause oi ., ibii,~, ~ the breakdown of a marriage should benefit rrom her/his was warranted.," Another ~ssue w~ll ~e whether dissolution issue first? namely~ whethc·r dissoluti6~ was )Oi:1t out at on~e. thot the 5.ssue as statc~d is too ---· -~ ge ral and vague to be of any assistance to USo whether dissolution of the ma.t·riag-2 is 1-.,~1.l'.'r.::• r,t·-x' cc not can be one ot; law or one of fact. It would be a point Jf law 9 for instance, if the :_;,or~ the question complaint is that there was no 8vidence at all on the record to su~port such dissulution, or thnt the dissOJ.1..;ti.un was base,d on some misdire<:tion or non-directij..n by the c:our.-ts below., On th•·= otlH,r hand i t would be a point of fac.flif· 9 for ins+.:.,-mce, the rl legation was that the evidence in support of the dissolution was in.?u:f.ficient. ThE learned judge was required by law to cert:l:fy to us only a point of lawy but as it is, we cannot discover wh2t h~ really meant to certify to us. ••o••/3 .. " • .B1.L1: .:f:he---,rnOr.t? - se.d.ous ;.:,:-i tL:.:.:::m :.s thrit on the infc.::-,nation which • was before him, the learned judge could not hav2 raised the issue in questiono It i.s clea;~ th;:;'.:; h:~ ~ppellant himsei-f had petitioned for divorce, and there was overwhe:;;•1:;.:-,g e·.ridenc..e that the marriage had br.::>ken down irreparablyo lndeec] the :c",?pf::112.\Yi: h~.mself expressly stated l>efore ,,. Mei-a, Jo that the marriage had irreparably broken down, his only eon.ention being that the breakdown shoulrt be blamed not on him but on ~he JPespondent who -;,,ya s ~,ot pre::,a~•,:;d to re tu.en tu the matrimol'lial h,ome. Ifl •uc:h circumstance_s, it seems pl3in t:o us that dissolution of th~ ge was the natural and logical consequence, and we can see no roOm uestioning H:,. -1 -~ . JJ/il,'i:J r ~ ½,/ We now turn to the :fj_rst po.:1.nt whcthe1.· a p,.1rt:y who has been the . . · · ..cau; of the breakdo•""n the marriage should benefit from his/her own "1 .0 o;f 'f ' ~""""79 • As stated ear.· Her., 'Oaina, directly oddre s sed himself to this J. ' queetion and came to the conclusion that whRth8r the appellant was gut ty Q:i; cruelty or -the .resp•.::,ncte:.Yi: was gui}.t:y of C:esertion it made no dt,£ference as r.egar,i:::: the divisj.•.:.in of the m~lt:r.~.monial assets. In coming .,-,_ wh ch provides tha~z- .\ !.). ,--~ ~.l ~ '-__;,~-- "114 - ('1) The Cv·H:--!:' s 112L:. t,a-.rP. power, when granting or subsequr3nt J.,,, th grant of a decree .of separetio~ er dlva~ce, to order the·division ~- be1tween the part:l.es cf any as:se-i:s acquired i::Jy thE=?m during the marriage by ':a ~:j • • ,.. ' ~-., o~~~neir Joint ef:i:on:s or tu ordex: ·:-.,,e .sc:iJ e of any such assets and the ~· er_~\ } ~ j i l v i s i o n between tnc parties of ti·ie proceeds of saleo ~ , (2) In e;;erc:Lsing the pow0.r confer.red by subsection (1), the ·'• _· - c urt shall have rc<;·ar•.:"\ -, (a) to -the cust-,)m of the co:nrr.un:t t~, to which the parties belong; (b) to the extent of ~1e contr!~utfons roede by each party in money, property or wazk -.::owar:d-= the .~-cq'i...:.Lc:Ln9 ;•:.:;!:" the assets; Cc) to any debt~ owing by either party wh1.ci;. wer:-e contracted for their joint benefit., and (d) to the needs O.f" the in.fc1nt children, if any, of the marriage, and subject to those co~side.':"ati.ons, .:::l:-.all incJ.ine tov;ards equalfty of di vision/;, . f I ✓ • 4 . ·, The rest of the section is not relevant to the facts of this caseo The learned judge took the view that there was nothing in this section, or ifldeed in the provisions of the Act as a whole, which makes the conduct '., ot idle guilty party who causes the breakdown of the marriage a relevant eoRaideration in ordering division Of the matrimonial assetso \ 1 "' J!n a lengthy suhm:Lssi.on before us the appellant strongly criticised I-1. \). 1--;"\; th,s view and vigorously contended that it would be grossly unfair to pe~rnlt a guilty party who wrecks the marriage to benefit from his/her ··own w1ongo He urged that section 114 of the Law of Marriage Act should j ~- be:»ead and construed so as to make the conduct of such guilty p~•ty a · ,~ te\eyant consideration in ordering division of the matrimonial assets. . .•.. .,Hawa Mohamed v. Ally Sefu Civ. App. Noa 9 of 1983 (unreported). The ': . · .He 1ia1med that this was the view expressed by this court in the case of / i , »~leya~t passage in Hawa's case reads:- "With regard to the fear that the broad view might result in a wife being "allOwec' to benefit from a marriage which she h,35 wrecked" we think, wj_th respect, that it is mis'.]uJ.ded because what is in issue is the wife's contribution or efforts towards the acquisition of matrimonial or family assets, and not her contribution towards the breakdown of the marriageo Of course there may be cases where a wife's misbehaviour may amount to failure to con"!:r:i._but~~wards the welfare of the family and thus fai~e t~_sontribute towards thP. f.?~i~ition of matrimon~ or ; family asE:_~ts ;__but . this has to be decided in accordance with the facts of each individual case." sentence which is underlined, the appellant pressed that ;he respondent had been guilty of desertion which in turn wrecked thei• marriage and therefo.r.e thnt factor should have been held against her in ordering divi:;ion of their matrimonial assets. We think that the appe\l.ant has not qu.Lte understood the message contained in this passagco As the passage makes it very clear 9 the Court in Hawa's case was dealing with -he issue of contribution towards acquisition of the matrimonial asset•, not contribu~ion towards the breakdown of the marriage which is the issue in the present caseo The underlined words which the appellant seek$ to rely on simply mean that in ordering division of the matrimonial asse,1, the Court will consider whether the conduct or behaviour of the o•ooe/5 5 guilty party who '.vrecked the ma:cr;;.age 'Jperc.ted -'-~·. :s-:..::.c:h a way that· by· reason. of such ·conduct the sa::.c par.,.y c2:·;no·1: ha.ve mads a contributi·On to the "" aequisi tion of the matr:i.moni,:::\l a,.i.sGts., so t:-iat :i..f, for example, the guilty pqty was in de sertic,n at the time of the acquisi t5-on of the matrimonial ai,sets, such conduct would. be a ...:ele:vant ccns:::.deration when deciding on the e~-•nt of the party': contributir.:•r, t:owargs ncquisition of the matrimonial e1o•ts; the point to str.ess is that such conduct:t in order to warrant have bee,~. oper:::it.ive at the t:l.me of acquiring the ·,.,._. . ".Jl'lfl mOnial a.sset;;.,.. Thus :~.;:-, a p::·:ope.1:· case ~:he Cou.r-t !"la.y well find that ~:~ -.,, :.. ~. -...y - < ; ~ h . b"f,..guilty party made ~o contrib1..Jtic.r: at 2ilJ. :Lf, say; he/she was in ro'!•~. - .::I ~'\p\tion fo:r.:· the whole peri.00. dur:l.n~➔ which the sa!.d assets were acquired. 'f.~ 1 ~~_:) ·. ~.We a:i3e t::h~1::~f~•~E, cr,.lii:e ~;a t:.isf:l.ed that this (:'.Ou.:-:-t in Ha·wa: s case did •l~ .. ! onsidei:· the ques~.t,.:,r; 1,J}1oth~:.t:· ~:h.8 ;iu:'.:i "::y 1.;2.,.r.·ty wi-10 causes the break- not• 1· diw~'l of the mar.·ric-.ge !.:1~ouJ.d b<:meft t.: from h:ts/h<2r. owr:. wrong because, as 1· the :fOurt cle,t:i:ly stat.ad r tha.t que.,t::.ori was not be:fOr8 it., addffSS ourselves to that questi.or.. which has bee;.-1 raised squarely in the We now pr,e:lE)nt appealo Ij: is pertinent tc poir.t ou.-t '\;hat .,;,.,bsection (2) of sesuion 1".l.4 of the Law Of Ma.r:·riage A.ct which was reproduced earlier in this judJernent, sets out f<:'iu.•.:- mat:·:e;:s •:.c which the co·..;rt shalj_ h.;1ve regard I When orde.rinq r..'i:l.vis5-on oi~ the matrir.10:-iiaJ. .:::::c.:set.s ~ I-t is noted 9 however, l ·.-· - . th~t the extent cf the guilty p2.r:ty 1 z contribut:.to.r; to the breakdown of the ";!-,''· -~-, • :.L,., "~ f ·•A:-,.iage is not made one of ·:"•J-:·h m'='~':e:_r.~. no;:- ca:- j_~ be construed to fall ~ ~~ ... . . -~ ~~~r· any or,,~ of -:heme We think the; t. tnls w:az; si..:cb. an obvious and ' I t~bificant facto.::- that if it W,:J ,,; 5. "itenoeG. "'..:o be one of such considerations :'£.!iij1ament would not :1ave fa; ..1.cd <:(:, ::.ay sf.:>,.. :::::~.d(::ed we would go f4rt:1er • and say that in our v-!.r~w 511Ch <c p.t:CV.~.si.on W'.:'>:1}.d p0S'2) a practical problem. Cons1der for .instancey a s.i..-.:ua.:..i·-··n wher:e a 17lctrr~aqe iasted for a long time 9 ac:qu.:1.red 'l'l';t.t:-;1.mQr:,ial assets, but the I mar•1age was eventua).ly dis2oiv2d b•:.r.::aus•..: 0::1~ c;;£ ·':J·,e spouGes committed adultery rece:nt.lyo r-:cw~ ... ::..f t.ne appe;j_ Lant' r:~ S\..'.1::,;15.ss:Lon were to be upheld, th·e implication would be -to ;:i<::>r,y t:·,•,;. guil t:t· 1),."ix~t:;· h:l.s/her share of th2 jOiRt matrimonial asse ~-i:: bee '::·<.1se c·f -c1du:.;. te;.:·>· <::Om,-;;:_ ttecj only i.n Old age and ,.,, I t that consideration of the conduct of the party who causes the reakdown of the ma~riage is relevant only in relation to the acquisition L.M. MAKAME JUSTICE OF APPEAL R.H. KISANGA ~?TICE OF APPEAL A. M.A. OMAR JUSTIC~ ?F APPE:bf is a (~ .. H, MSOFFE) -; ¥. DEPUT¥ F.EGISTRAR I