19910516 TZCA Dar es Salaam3

• tJ :::: • . ,r,; AT D.,,1"'_.1_. ________ -·---· _ :,~~.; StLAil.M ' ( CO.:.~.AN:, .· Of-1/IR 2 J -~l. 9 }l..:°J.H.:~:mt\.HI 2 J .;i. p ;md Vii~'.!;AVAS 2, CIVIL Al>P,}:1, NO • 26 OF 1990 Sil.Ilk. 3l.IDI. • APPfil,Llll~ r, • Si\IDI f101L'.ITIOI. • • • II.J'.3P01-"!D.0NT ' •· (Appeal from the Judgement and· Decree of the H~h Court of Tanzania at Songea) · ( Ka z imo to 2 ~ ) / dated the 14th-day of November; 19t38 in i . JV"iatrirnonial Civil Appeal No. 2· of 1988 ...' ' ~ I Jlf'.JJEM8NT OF .TH~ COURT I --~ !-~VAS , J .A. : ThQ appellant, Saida Saidi, uetitioned for ·divorce in ~ ,. ' i '· Songe.t Resident Magistrate'_s.Court alleging cruelty on the ; pa_rt of her h·usband, Saidi Mohamed., the respondent. She also y nt'ayed in he'r petition that she be declared the owner of a ,' /nouse built on Plot No. 15 Mbambabay road in Songea and that custody of eight children of the marriage be awarded to her. After hearing evidence ·from both parties the learned trial ~e-sident ·magistrate came to the conclusion that th~te was no ·evidence that, the marriage betwee:n the parties had· ~--~ irretrievably broken down and accordinglJr dismissed the petition.for divorce. The trial court also found that the:re: :; ~ was no e:vidrmce that· the house on Plot No. 15 along Nb~mbabay ~ . . .' .. ·.. ,"'_. ~~-~- ·{·road belonged to the ':::i_l)ptllant/patit ione.x:. . -··· ... - . . :., to be a matrimonial property • •llf:,- . The house was found •"'ft ..... /2 2 _Finally the court of fir.st instance ruled that the .ch.ild_ren; ~ho we.re at the material time living with the petitioner, b':l :returned to th<:ir father, the respondent to .· whom the cour_t had given custody. Dissatisfied· with the· . decision of the district court _the appellant/petitioner ·, appealed to the High Court~ After hearing the appeal the ' \.- . H~h- court (Kazimoto, J.,) came to the conclusion that the d,iatrict court _erred in coming to the conclusion that there was -no cvidcmoe that the union between the parties had iI irretrievably broken do"fl'l so as to call for dissolution of the marriage.~. Th<: H~h Court said inter alia: I " ••• In this case there can be no doubt from tho cvidcmcc· that the appellant end tho · respondent have becm li1ring in a very acrimonious life.... It is an open fact that tho appellant went to an immigration off ice to try ond have the respondont dc,port2d from the country •. · If this is not C?vidancc that the JJJ8rr iago bc,twocn the parties ha·s broken down bayond rcpa ir I fe il to subscribe the proper phraseology to this ,· conduct •••• the bickering conduct of the: parties in the circumstances of ,this case shows beyond doubt that the strings which once bound the appellant and tho respondent . as husbnnd and wifo. havc snappod." The High 9ourt then proceeded and r;::vorscd the decision of the d istric-t court and dissolved the marriage~- As for the house on plot No. } 5. along Mbamba-ABay road the High Court :found tlwt tho· district court was right in . coming to the conclusion tha~ it belonged to the respondent and not to tho appellant.-_ Consequently appellant's appeal that the house on. plot No •._15 Mbamba-:Say road was her property was dismissod. •. Like tho district court tho · High Court fonnd that tho houso was mntrimonial property• •••.•• /3 •• -,;,. ;_ :. ·· 1· ",t \ :~~ •. 'f·"i·;,•-. ,._.. ··/' . ~!"' ;' ..... ~ ' ': ·~:, .. On the question of custody the High Court uphold the d·oc;ision of the ·district court that tho respondent should have custody of tho childrcm cxcopt the last box:n who was barely two y:2ars old at tho Ill[.)terial t imo. Tho High _Court found _that in view of the lost barn's t.:nder age tho mothor, the appellant, was better suited· to core of it. Tho appellant · was accordingly given custody of tho last born child. Still dissatisfied by th:? decision of tho ~igh Court the appellant has come "to this Courto ~~. Mwajashor l~arncd counsel ·for the appellant, was allowe.d to prooced with the appeal under Rulo 105(2)_ of the / Court of Appcnl Rulesn In his submission the learned counsel · a,rguod that tho learned Judge misd i.r:2ct::.,a himself whon ho talked about o ho~so bought. for shso 50,000/= ns tho one ' ' on plot No. 15 Mbambri--Bay road -which house the appellant wos claiming - (page. 148 paragr0ph 2 of the typed judgo~nt). It was submitted that the house bought for shs.-50,000/= was· tho one on plot No. 11 Songoa Street which house wns purchased JI for respondent 1 s son, Mohamed Saidi, by another wife.· In support of his argum,mt the court was referred to the· evidence of Nohmncd, (D.w.6).ond Mrs. Hamza, (D.\-1.9). It ,-1as tho learned. counsel 1s submission that the appollan~ . was claiming the house on ploi; No~ 15 Mbamba--Bay .t:oad and not the house on piot No. 11 SongqEJ.roado It was argued that the nppcllant hos a cort:i.£:i.catc of title in her name in respect of the ho~sc on plot lfoe 15 I1bamba--Boy road ond thDt as such dh,, is in low prcsumod .to be tho owner ••...• /4 • I In support of his argument that.th~ appellant .is the owner of the house th~ court was ·r~fcrrcd to s::ction 40 cif the .. Land Rog~stration Ordinance, Cap. 334 Dnd section 100 of the_ ' Elvidonce Act, 1967.. . -. As for the question· of custody it was I1r'. Nw'"joahors · submission t~t the appJllant hns sufficient moans to cater for the children. and that sh0 has. n po rmancnt home• It was argued thnt the respondent -i.a rt9t a citizen • .After a closo scrutiny of the evidence in the court of , .. first insttmcc cispcc:i.Dlly tho ovidonco of nppollant/potition.:r and that of the r0spondcnt wo agree with th.:_ finding of the . ' lca.rnvd Judg_~ that. the marriage bctwoon the parties had · i.rrcp'i:irably broken down:. Th-: :ovidoncc amply showed that ' whnt wos once o happy union had d·.::velopcd into o c.it and mouse ., r0lationship which made _it impossible for the parties to live together under the sam:: roof a"S husband ond wifo. The High Court was right in d issolv:i.ng the marriage•_ As for the question of ownership of tho houso-on plot ·No. 15 along Mbambo-Bay rood there was Wlaisputod ovidoncc that the ·plot is rcg-istcrod in th.: nam: of the appellant; and o title '\ deed in th.J nairo of thc appcllnnt ·over the plot wns produc.:-d in court ~·Annoxtu.rc A to the petition. SBction 40 of th~ Land Rcgist~ation Ordil1clricc, Cop.· 334 is ·to. th.:- cff1.Jct, that· 1'.a _ •I ·ce.t'tif icoto of title shall be udmissiblc as cvidoric~ of the aovoral matters thcr~in contained." · Saction 100 of. tho Evidence .ltct snys: 11 \vhorc the tl!rms of o contract or of a grant or of any othcr disposition of property, b.:!vc 5 ..... . ~~~ ~;;··J ~ . '• . ., _Jf ~- .,,... :i:..-.. -' ,. if~ ; .. ,, ·, been red uccd to the form of a document, .. _.{l~ ~ . . ' I ~nd in oll cases in which any mattdr is requir,.:d by law to be reduced to: the form . o~ e docum:nt, nocvidcnce shnll be given . -:. . ~' .. , t "'I ·'' . in proof of the tcrmS except the document itself, or s;;condocy cvidcmce of· its contents' . in cases in which sccc:indory ·Gvidcnco is. adtnissible •• ,. 11 In tho present easer th:J rcspondcmt 's cffo.i;-ts ·in tho oourt . of· first \ instance to show that the appellant hnd forged the title deed did not -at all shnkc appellant's argument thot sho was tho . -l . rcgistore.d ·owner of the plot on wl~ich the d isputcd house is . . built. The evidence_ that tho plot wos r"gistcrcd in oppollc:mt 1 s l'lllmc nine ycors before litigation started supported appcllant_'s ,,;,. 'i T oaac all ~ho more. Toking into a·ccount tho prov.is~ons' of section 40 of Cap.• 334 ond section 100 of the EvJ.dcnco Act and tho foot that ownership of the house by the oppcl,lant only come to be questioned by the respondent dl;ll'ing the mntrimonial d isputo and not before, we aro -'of the view that the i;ippolu:int is thu lowful_ owner of the house on plot No. 15 _- Mbamba-Boy road in Songco. We accor9 ingly set aside th~ doc is ion of tho High I .._ Court tru::it· ~ha house belongs to the respondent. We find that the house;, on plot No, 15, I1bamba--Bay road, belongs to the; . appc llant. Com:ing to the question of custody WO noto from the cvid0nco that all the children have bc~n living with thoir mother, tho appellant, up to the time tho trial court gave custody to the respondent, As al.ready mantiona~ above the f°irs t a ppo lln to court s uppo.rtod the district court·, s . judgomont regarding custody save; for the last.born child whos·o custody was given to tho appellant on account of her )· tender ogo ~ In oword ing custody to the respondent the ·1,;arned. Judgt so id ·inter· ol io: 11 ~ • • Tho rcspondcn_t is married and settled ond. Decor :~i.ng to the ovidcncc on record he appears more stable thDn the appollarit. 11 . ·, ', In matters of custody tha court is a hmys .rcquiro_d. to .take into account the w.:lfa.ro of th0 children. In the present case: the ·marriogc between the parties hos come to an end basically bccauso thq rcspon9ent got JJlc)rriod to another wi.fe 0 Taking this fact into aooount we arc of thc-·opinion that the children's welfare will be bettor servod if tho:_ir re.main with thGir mother, tha appellant,. . :_ than if they live with a step mother. From the ovidonce tho oppollant would appear to be a porson of mGans and capable of taking care of the children. \ In tha cvont the decision that tho respondent be given custody of the chi;Ldren is horeby set asido. Wo order that custody· of the children be given to the appcll~mt. I The two boys Sa id i Sa id-i born in 1971 and .Abd ullcJ h · So idi bo.rn in 1973 ore not o:ffccted by this ·order ri s they ore above 18 years of agco Lastly on the claim of tho nppollant tb.:lt she i,a cntit~·ed t~ a shDro of a shop sh0 used to run when she was mnrriod. to th,::, r0sponc;Jont she did not include this in her · pleadings; nor did. sh;.; toll tho court h9w sho orrivod ot tho figure of lo4 million shillings os tho volu~ of the proparty in the shop. That being the position. it is no wonder that the first Gppcllatc court did not deol with such claim· which wos brought out. for the first time in nppollvnt 's cxomination in chief~ 7. It is our considorcd vfow th.Dt th-:ro is•no basis for this c1nim. In_ the event the appeal, succeeds in part .• :i-i os ind icDt.::d above. .-~.>~; •Li . l ~- .l ~ -1: . ·.,.:-•;1 Th~ appc·llant to have half" of th".:, costs of the cosc in this Court -and tho courts bolow. <.:1_: . ' . ·' DATJID ·at DAR E.S 3.UJl.i,.M this, 16th . day of May,_ 1991._ . ! •· 1 j A •. M. A • OMAR . JUSTICE, OF APPEAL i A. S. L. RAMADHANI JUSTICE 01? APPEA~ / N. S. MNZii.VAS JUSTICB OF .APPEAL I ocrtify that this is a true·· copy of the origin::il• J' ;p , ~-i(..,t.__ ..JJ., , ~I J-~--::, _. .,,,.,. ( Lo 8. KALEGEYA) SENIOR DEP.UTY REGISTRAR.