20020219 TZHC Mwanza

IN THE HI<IF( c·ouRT--OF TANZANIA AT MvJANZA ·• ...... -·-··· .... --·--·- ... - ·-~ ..... HCo MATRIMONIAL CIVIL APPEAL NO. 2 OF 2000 (Originating from Mwanza Urban Primary court Civil Case Noo 297 of 2000 & Mwanza District Court Matrimonial Appeal No. 17/2000) STELLA ARBOGAST / r. ,-; (J.::;. "0 (.I 0 0 0 0 0 0 0 0 0 APPELLANT Versus I . ( /,. CHARLES JOHN M¼TANKEN JA .. . 000 ••• RESPONDENT I JUDGMENT.. I NCHALLA. 1 J., I This is a second appeal in a matrimonial proceeding which commenced in Mwanza Urban Primary Court in which the present appellant Stella Arbogast petitioned for divorce and division of matrimonial assets against her husband, the present respondent Charles John Mwankenja who is a member of the TPDF stationed in Mwanza .. The trial primary court granted the divor~e- .and also made an order for division of the matrimonial assets which were jointly acquired by the parties~ ' The present resp()-_ ndent, the ·husband, was aggrieved by the decision of the trial primary court; he appealed to the District Court against that decision and he substantially won on appeal, in the sense that the matrimonial house which is the most conte- sted item among the matrimonial assets, was given t~ the respondent who was ordered to pay just 200,000/= to the appellant as part of her contribution in the construction~£' . that house whose value, however, was not known at the material time to the appellate court nor to the trial primary court. With regard to household goods which are part of the matrimonial assets, the appellate District Court directed the trial primary court to take additional evi- dence concerning those items, which were: not properly •! ./2. "\ aescrLd and listed I b: th2 "parties in their evidence to the f tril primary courto 1 The present appellant, Stella, was aggrieved with the fc ision of the appellate District Courto Among her grounds /! appeal, she argued that the value of the matrimonial house :>f / .was not less than 4000,000/=, ~nd that it was quite unjust I /that· she should get only 200,000/= as her contribution in the '/ i construction of that houseQ She proposed that shs.1.5m/= I I would be a fair contribution to her from the value of that .I' house which, howeveri had not been valued by any property I valuer. And with regard to the sundry household goods, the appellant argued that she and the respondent had agreed that they would settle the division of those goods amicably be- tween themselves without any court's intervention. At the hearing of this appeal, the issue of what or how much each of the parties should get from the matrimonial house remained a burning and undetermined issue. This was so largely due to the fact that the true value of the said matrimonial house was still unascertainedo The appellant convincingly argued that she lives with the two issues of the marriage, namely a girl called Mbutolwe now aged 17 years and currently studying at Bwiru Girl's Secondary school in Mwanza, and the second child a son called Mwanitu aged 13 years and schooling at Kitangiri Primary school in Mwanza, and he is in Std VIIo The appellant feeds these children and clothes them. These children do not live with the respondent who is now cohabiting with a Concubine at the Army barracks at Ki ta- ngiri in Mwanzae These facts were not refuted by the respo- ndent0o In order to reach a just decision on the issue of the matrimonial house in this case, I directed the Mwanza City , - I 3 B()perty Valuer to go and value the sald house, and .furnish ks valuation report of that house to this court.- This was I duly complied with, and the said valuation report was tendered and was filed in the record, and the same is part of the proceedings in this appeal .. The ·said valuation report states that the market value of the said matrimonial house is six million four hundred and seventy eight-thousand shillings only ioeo 6,478,000/=o The parties were availed with copies of that valuation report, and were both satisfied that the value of the matri- monial house as stated by the government valuer is correeto The appellant then told this court that she should get two million shillings (2000,000/=) from the value of the matr'imonial house which is about 1/3 of that valueo She demanded that the respondent should pay her cash not by instalment. The respondent agreed to pay the 2000,000/= to the appellant as part of her contribution in the matrimonial house, but asked that he be permitted to pay 50,000/= ~onthly instalments, and that the said house should not be sol<l. I have seriously considered the circumstances of this matter and the situation of the parties. The appellant is just a primary school teacher at Kitangiri Primary school, and her salary is not big. The two children of the marriage have joined her at a rented residenceo Those two children are grown-ups, and their daily needs are expensive~ The appellant badly neeas financial assistance to cater for her and the two childreno On the contrary, the respondent an Army Officer, lives at Army barracks where most of his nece- ssities like accommodation and even food are footed by the Goverrnnento He has now decided to cohabit with a concubine. I ~7--'···-'. . ' 4 I I I ' He says he is unable to raise the whole amount of 2000,000/= i I _to pay ~t once tq the . ap-p ellant her: c:pntribution in the r· . . ' ' . . ' , .matrimo·nial . .house~ .. · For: . ,that reason h,e q_as, propbsed and ~ . ,. a$ked. to· -pay: ::just' 5c{,bbO/= . . monthly ~n~tal,rnents towards this ,,; ..... . ' i . 'f ·' * .- liability. If this is,. ··-~r-,;.,_1J_t<?d ,. it will take over three } years for . the responden.t to pay up t 1J.e amount of 2000,000/= : .. \ . }) \ < ' to the app~:tl;an:b~ ~- . · -l 'f.i.hd this tn be quite unfair.· I am ~ . . . ;:. :~' r;;-..~:·· 1'·· •..• , of the considere'd•view that the justice of the case demands -"~~.:,. 1· • that the matrimonial . . . . '\ --h,o~se '. be sold, and the appellant should ~- • : • i . •• \ • get the 2000,000/= at once from the proceeds of sale of that " ; :' \ ' ' ' ' - : . ,,.- I • house if really the same fetches -the. -pr:i.c_e ~qgaJ. to ·the . . . ,/'. ·. . ' ~ 0 ... : ' ',, , .. value of shsff ~Q.Ql= ~v-en by ·the goy·e~me:nt valuer, ----~,..,..,:..... _,,._ At any rate, whatever·arnount .: that. . hOU$e . . .. fetches· ... at . the ~ - ' sale of it, the app~llant ~houlc. get 1:.1/3.. of. "the. proceeds . of sale. I order accordingly,,., So, this ground of appeal ~- ~ • ... • • • ., •• ,!. . f_·_'. t. . ..:· ; . ,.....:r.-- ,.:,,·.;;~: ··.. succeeds. . . ( .·. With,. re!sard to the other br111 ;,::, h0 7 -=i fJems which ... were ngt cle~ly or specifically desc:tib~d. and' listed by the parties in their evidence·before the trial primary co:µrt, I agree with the appeil /;:? :)ist:rict Magistrate, that the trial Urban primary court should get or take additional evidence concerning those items, and should thereafter divide them between these sp0l.:seso However, should-tne .. i;)~ties :. ;..~:- ·:·: : ~ - .. ~--~ -~-1,~-. ·,'' amicably agree to divie2 those properties betwe~n.them in .. \. ~ . ~ the way they deem fit, they are free to do so, but·shoulp file their agreement to that ef:?--:-~t in the trial primary court, and the same will be evidence and part of the deci- sion of the trial courtc I so directo Hence on this point the appeal is dismissed,... ii 5 .... 1:. I.· l ~·:. \~_,)C -,; ~ ('C' \ ~- :~ 11 I dis- own ··' ~;: •~,-~;-~_•ir,;_;; :·~·+>;·;;f~•' :"' t' .f:: _,,., :.:'r.:C.:::: :i"}'~.:: :·J's. ..: .;- :: :t' c,r1~/l/2;0Pf~-." C' ~ · ·'' ·., p Coram : M.D'.-.Nchalla, J. ,_;:•1~;·:.rtJ~ . . ·_r,--.~-:'~-'':_.'"--::i ·r·r1 ·~;,-,.:_· ·--~ ... r:·~_.>.; :.:. /,i' Appellant: present in person~' '·RJs;~~cie~t:' :present in persdn. =-~ h G :1~:~ '~/-~:,1 .' .. · .. .. '· ·\'' c~c. Restituta ,._,.. ·r:·.=.··r\· .. ·-'~t:i. ~ . ,~. c.ourt: Judgment delivered in court at Mwanza in the •l .• :: .:_~ ~•., :~: : : : : : }'~ .. •~ , _ pre~enq~. of the parties, _this the '19th day of ~::/'):,..-1~'-.f '9'): 1 ·_-1, -~ -·~··.7:· ·- ·_; . ' . ··. '<·: .. ·_,,, ,·.;./ -.. <;" .:, :!··r --~-- _;~';. ·. _-,:t .. · _ .Feb~ary, 2Q02. Right of appeal explained .. ,: : \:;-:.:, ·: :~: · ,.· :t~6j:LdtPg · • ~, ___ , , , / • ., ' • /'. y ':'. ,J·. j ~.:.'1 ~::::.·-· /"' ,j MoDo •... L . NCMLLA. ,1 JUDGE (, }"'/.," b 'lf:~;•_;- , ,-, •· ·:r·:,(i··; .-~;,"-: .. _., ' ........ :.i:...'i .•~-~j-1:;,r,~.q .-';'.> :'/ :AT, MWANZA '-· ·'- . .._,, ... ; . <.:;. ~J • ~- •• , ~ r ;,-"• ... -,. 1