20151120 TZHC Arusha2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY) AT ARUSHA I ' i CIVIL APPEAL NO. 4 OF 2015 (C/F District Court ofArusha at Arusha in Civil Appeal No.13/201Z Original from Maji ya Chai Primary court Matrimonial Cause No.9/2011) I TUMAINI KIJANGWA .......................................... APPELLANT VERSUS! MICHAEL KANIKI .........................•.................. RESPONDENT JUDGEMENT ON APPEAL ' S.M. MAGHIMBI, l I In this second appeal, the appellant hereiri was aggrieved with the decision of District Court of Arusha in Civil Appeal No. 13/2012the same originating from Maji ya Chai Primary Court Matrimonial Cause No. 09/2011. At this Court the appellant raised two grounds of appeal that: 1. The District Court did not take into consideration the mandatory provisions of Section 114(1) of the Law of Marriage Act, Cap 29 R.E 2002 as regards to the division of matrimonial assets 2. The appellant magistrate misconstrued the provisions of Section 114 (2) (b) of the Law of Marriage Act, Cap. 29 R.E 2002 as regards the contribution made by each party towards the acquiring of the assets e)~f\t'{) by orde~ the appellate to be compensated to the tune of Tshs Pagel I, 900,000/- without taking into account her contribution in developing other properties including the house at Lekitatu Usa-River. The appellant hence prayed that all the proceedings are quashed and the judgment and decree of the district court is set aside and divide the matrimonial properties equally. The appellant was unrepresented while the respondent on his part enjoyed the services of Mr. Mbuya, learned Counsel. By an order of the Court, the appeal was disposed .0f by way of written submissions. Basically in this appeal the only ground of appeal is the division of the matrimonial assets. The respondent is not satisfied with the 900,000/- Tshs that was enhanced by the first appellate Court from the 500,000/- initially awarded by the trial Court. In her submissions, the appellant contended that it is undisputed that the two houses at Lekitatu and Majengo in Usa river town are matrimonial assets since they were acquired jointly by the parties during their wedlock. That the trial magistrate should have cpnsidered the extent of of contributions made by each party in money, property or work. The appellant argued that she was the wife of the respondent for 20 years and she was responsible for all domestic chores, bearing children and welfare of the respondent hence placing the respondent in a financial position to construct the disputed matrimonial property. To support her arguments, the appellant cited the High Court (Dar-es-salaam) case of Eliester Philemon Lipangahela Vs. Daudi Makuhana in Civil Appeal No. 139/2002 (unreported) and the famous case of Bi. Hawa Mohamed Vs. Ally Seifu, Page2 .. I 'I II 1983 TLR 32. The appellant further argued that the trial court ought to I have ordered valuation of the joint matrimonial assets which she has contributed to. In his reply the respondent submitted that there is no scintilla of evidence showing any joint efforts contributed b} the appellant towards the I acquisition of any of the matrimonial assets.. The respondent surpringly I introduced new evidence at this stage j that the appellant disserted I matrimonial home in 2003 due to her unbecoming conduct of adultery and I over drinking of local beer known as dadii and banana. I have used the word surprisingly since in his petition for divorce, there is no place where the respondent pleaded adultery as a reasbn for his petition. Introducing this evidence at this stage and further exxejgerating that the appellant was drinking a beer which at that time had ndt even been introduced in the market is a shame on the respondent and an insult to the dignity of the appellant and the respondent is apprehen'ded for the use of such false I allegations to the woman who is supposed ~he mother of his children. I . The respondent based his arguments mostly on the fact that the appellant disserted him and abandoned her children.! He argued that the provisions I of Section 114 (2) of Cap. 29 are not appli~able in this case as he was left I with the custody of the children until wMen they attained majority. He I argued that the small cow shelter at Lekita~u is under occupation of theur I I son Godfrey and the same was acquired by the respondent sometimes in I 1970 long before he married the appellant~ He submitted further that the ! house was constructed during the period ofI dissertation and the same . was I ' Page3 bought jointly by him and his brother Jackson. He submitted further that the house at Majengo Usa River was constructed by the respondent before he married the appellant and upon marrying the appellant he lived with her in the said house. The respondent pray that the order awarding the appellant Tshs 900,000/- be set aside and this appeal be dismissed. In disposing this appeal it is pertinent to elucidate the meaning of what matrimonial assets are so far as the division of the assets is concerned. Section 114 of the marriage Act deals with the powers of the Court to order division of matrimonial assets, in particular Section 114(3) of the Act provides that: (3) For the purposes of this section references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. The evidence on record show that there are indeed assets that were acquired or improved during the subsistence. Even at this second appellate stage the respondent in his submissions admits that there was actually an asset that was constructed after the dissertion and further that the house at Majengo Usa River was built before the marriage but he however admits that the same was the house that they lived in during their marriage. During trial while being cross examined by the appellant, the respondent replied that ''mimi sijachuma mali na wewe, nina hati nazo ni mali za watoto sikulipi kwa vile ulitoroka nyumba yako mwenyewe na ndoa umeivunja mwenyewe kwa kutoroka na kama kuna mali mbona Page4 j 1 ' I umeondoka miaka 8 uko nje ya ndoa?'~ T~e wording of the statement clearly enunciated that the respondent is punishing the applicant by not l giving her a portion of the assets because she deserted him. It is unfortunate that both the lower courts overlooked this vicious intention of the applicant. It is clear to me that the respondent has admitted of the ·, existence of two assets, one a house in Majengo in Usa River and two the ' I property in Lekitatu. Thereforefor the purpose 1 of division of matrimonial assets although the majengo house may be a bit doubtful as to the extent t of contribution of the applicant, the assets; in Lekitatu should squarely form part and parcel of the matrimonial assets that are to be divided • between the parties. The extent as to which each party should get in the division is discussed in the next para. 1 Section 114 (2) (b) requires the courts, while dividing the matrimonial I , I assets to take into consideration the extent: of the contributions made by l each party in money, property or work towards the acquiring of the assets. I I For the matter at hand, the evidenced ;contribution of the appellant towards the acquisition of matrimonial assets was in terms of work that I was performed by the appellant before tfesertion including household ' chores, bearing and rearing of children as well as maldng the home j ' comfortable for the respondent and the chjJdren. These efforts cannot be I ignored to make the appellant only entitled to a "kifuta machozi" of '' 900,000/=. The fact that the appellant: bore five children with the I ' respondent should tell us something. That t~e couple cohabited for not less ' than nineteen years before desertion. Furt~ermore, I have also paused to J ask myself as to what are the reasons that a woman would abandon her Page5 five children? Well this is not a ground of appeal I hence therefore just spoke out loud on what wondered my head while writing this judgment. The appellant supported her submissions by citing the cases of Bi Hawa Mohamed Vs Ally Sefu [1983] TLR 32 And Mohamed Abdallah Vs Halima Lisangwe [1988] TLR 197 regarding her entitlement to the a share of the matrimonial assets. Although the respondent vigorously distinguished the two cases, I am in total agreement with the appellant that the cited decisions remain a good law in defining the parameters of Section 114 of the Act. That being the case it is this court's finding that the appellant is entitled to a fair share of the division of the matrimonial assets higher that the said "kifuta machozi" of Tshs 900,000/- previously awarded to her. The asset in Lekitatu should be valued by a registered and/or recognized government valuer who should be approved by both parties. Upon valuation of the asset, the appellant shall get 40% of the value of the property and the respondent shall be entitled to the remaining 60% of the value of the property. Either party is at liberty to purchase the other party's share by monetary compensation of the adverse party's percentage share value of the property. In the event that neither party is unable to buyout the adverse party's percentage share, the property is to be sold and the proceeds of sale to be divided among the parties as per each party's percentage share of 40% by 60%. Having said that, this appeal is hereby found meritious and is allowed. The decisions of both the first appellate court and the trial court on the division Page6 J of matrimonial assets are faulty and are hereby set aside. The appellant is further awarded the costs of the appeal. Appeal Allowed th Dated at Arush_a this 2_o q_<IY of ~~ber, 2015 AGHIMBI JUDGE Page 7