IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
VERSUS
ADOLPH AMIAN ···················RESPONDENT
Date of last order: 5/2/2007
Date of Judgment: 17/4/2007
~
ORIYO, J.
In Matrimonial Cause No.24 of 2001 in the Resident
Magistrates Court at Kisutu; the spouses, were granted an
order of divorce and both were happy. But the appellant
was dissatisfied with the order given on division of
matrimonial assets and preferred this appeal. The
Memorandum of Appeal contained 3 grounds of complaints;
but primarily she complained against the trial court's order
refusing her an equal share in the matrimonial house
situated at Yombo Vituka and 2 farms at Chanika Zingiziwe.
She also complained against the trial court's recognition of
the arrangements made vide Exhibit "P2" dated 4.6.2000.
Let me start with Exh. "P2". It was an undertaking by
the respondent to give the following to the appellant upon
separation :(a)
To
pay
her
shs.2,700,OOO/-
through
instalments of shs.l00,OOO/- per month.
The instalments payments would only
commence on condition that the appel/ant
opened an account with a bank and gave the
account number to the respondent
(b)
To give the listed Household items including
a bicycle and a sewing machine to the
appel/ant
(c)
To transport, at his own cost; the items in (b)
to appel/ant's parent's home in Mbozi Mbeya.
The status of Exh. "P2" and the issue of how much the
appellant contributed to the acquisition of the house and the
two farms can be answered by looking at the evidence as a
whole. The spouses pleadings and testimonies have one
thing in common; that the two lived together and cohabited
from 1984 to 2000; a period of almost 16 years. During that
time they lived as husband and wife. There is also evidence
that the house at Yombo Vituka and the 2 farms were
acquired during the time the two were living together. The
plot at Yombo Vituka was acquired in 1987 and construction
of house completed in 1992 when the spouses moved in.
The two farms were acquired in 1996. Further testimony
was that initially the appellant was employed, but
subsequently became self employed in "fish" business.
The above testimony was common and was not
controverted. All taken together leaves no doubt that the
house and farms were acquired during the marriage and
each party had a share of contribution. The house and the
farms formed part of their matrimonial assets. For lack of
evidence, it is impossible to know how much each really
contributed. The respondent testified to have given
appellant shs.350,000/= to buy a farm in Mbozi but the
appellant denied that.
SECTION 114(2) OF THE LAW OF MARRIAGE ACT [Cap
29/ R.E.2002]; lays down the principles which gUide courts
of law in determining the division of shares of spouses in
matrimonial assets. The considerations to be made include
those stipulated under SECTION 114(2)(b) which states as
follows:-
"to the extent of the contributions
made by each party in money,
property or work towards the
acquiring of the assets'~ (emphasis
provided)
In the case of BI HAWA MOHAMED VS ALLY SEFU, [1983]
TLR 32/ the Court of Appeal discussed at length the import
of the above provision and held, inter alia :-
(i)
Since the welfare of the family is an
essential component of the economic
activities of family man or woman, it is
proper to consider contribution by a
spouse to the welfare of the family as
contribution
to
the
acquisition of
matrimonialor family assets'
(ii)
The "joint efforts" and work towards the
acquiring of the assets" have to be
construed as embracing the domestic
"efforts" or "work" of husbandand wife.
The
appellant
was
both
a
housewife
and a
businesswoman. Her contribution as a housewife embrace
both her domestic efforts and work. Her contribution as a
businesswoman was both in terms of money and work;
according to her testimony that she supervised the
construction of the houses; contributed cash, etc. There is
no doubt that the respondent's own contribution to the
acquisition of the assets was also quite substantial.
On the basis of the foregoing, I find that the house at
Yombo Vituka and the 2 farms at Chanika Zingiziwe were
acquired and developed by the joint efforts of the spouses
during their cohabitation.
The remaining issue is on the legal status of Exhibit
"P2"; the contents of which have been exhibited above.
SECTION 108 of THE LAW OF MARRIAGEACT, stipulates
duties of a court hearing a Petition for Separation or Divorce.
One of such duties is provided for under Section 108(Q) as
follows:"to inquire into the arrangement made
or proposed as regards ...division of
any matrimonial property and to
satisfy itself that such arrangements
are reasonable."
Exhibit "P2" was an arrangement proposed by the
respondent and signed by both parties and witnessed by
their two neighbours; Dw2 and Dw3. Exhibit "P2" was the
basis of the trial court's order against the respondent to pay
the appellant the sum of shs.2,700,000/=.
The issue here is whether the arrangement was
reasonable. Unfortunately the trial court did not direct its
mind to the requirements of Section 108 (b). According to
the arrangement, the respondent was to make monthly
payments to the appellant for 27 months at shs.100,OOO/=
per month. The payment was conditional upon the
appellant opening a bank account in Mbozi where she is
supposed to reside, send the name and account number to
the respondent in Dar es Salaam who would then start
making the monthly deposits. The respondent called the
monthly payments KIFUTA JASHO; but to me it resembles
some form of payment of maintenance allowance to the
appellant after the proposed separation.
The trial court seemed to equate the arrangement
under Exhibit "P2" to a division of matrimonial assets. If
that was the case; in my view, the arrangement was not
reasonable as it was prejudicial to the appellant's legal right
to a division of the house and the two farms; pursuant to
the provisions of Section 114(1) and (2) of the Law of
Marriage Act.
On the strength of what is stated above, I order that
the matrimonial house at Yombo Vituka and the two farms
at Chanika Zingiziwe be divided between the parties. The
appellant to be given 40% of the market value of each of
the three matrimonial assets.
To the extent shown, the appeal is hereby allowed with
costs.
K. K. Driyo
JUDGE
Dated at Dar es Salaam this 17th day of April, 2007.
K.K. Driyo
JUDGE
17/4/2007
!7/4/2007
Coram: Driyo, J.
For the Appellant: Absent
For the Respondent:
Rutabingwa, Advocate
C.C: Emmy
Court: Judgment delivered in the presence of the
respondent and in the absence of the Appellant.
K.K. Driyo
JUDGE
17/4/2007
Order:
1.
Appeal allowed with costs.
2.
Notify appellant.
K.K. Driyo
JUDGE
17/4/2007