Said Mtondo Fundi vs Zainabu Ally (PC. Matrimonial Civil Appeal No. 2 of 1997) [1999] TZHC 196 (4 November 1999)

IN THE: HIGH COURr O:F' TANZANIA AT MTWARA PCo MATR!MONIAL CIVIL APPEAL NOo 2 OF 1997 MTWARA_D/C CIVIL APPEAL NOo 10 OF 1996 OR!GINAL MTWARA PRo COURT CIVIL CASE NO~ 1 OF 1995 SAIDI MTbNDO FUNDI ••••• i. oAPPELLAi"JT versus! ZAINABU· ALLY. ~-i".; - 0 0 0 ••• RESPONDENT

• •' .-:-,:.. !;·..s... .· J'U])GIENT . ..,, . ..,._, This is a second appeal In February 1996 the respondent ZAIN.ABU ALLY filed her pet:i.tibri before Mt\•lai'a Primary Court at Mtwa_r:a praying for dissolution of her marriage with the appellant SAIDI MTONDO FUN.DI. The trial Court was satisfied that their marriage had broken down beyond all recall~ It dissolved their marriageo The Court then dealt with the division of properties which the parties had earned jointly during the existence of their marriage. The house in which they were living was declared to be the property of the rsp(?ndent., The respondent was ordered to pay the appellant shs• 50,000/- as compensation or rather consolation (Kifuta jasho) for living w::'·1:i. the respondent since 1980 when they got married., The appellant was aggrieved. He appealed before the first appel~~te Court against the dissolution of their marriage and the division of.,.;wopertyo His appeal was dismissed for want of merits. He was aggrieved. Hence this appeal. In alehgth memorandum of appeal bearing more than 15 grounds of appeal; the appellant insisted that there was no sufficient cause for o.lsso'.Lving their marriage He also insisted that the house in which they were living was his. !n reply the respondent insisted that their marriage had broken down irreparably, and that it was properly dissol1ed by the trial Court~ She also insisted that the house in question was hers as supported by relevant documents and receipts~ 1· ave carefully considered the appellant's grounds of appeal and .the respondent's reply, together with the overeJ.l circumstances surrounding this case oooe/2••••

2 .. This Court being the second appellate Court is mainly concerned with matters concerning point of law. Its powers on points of fact are very limited. The question whether a marriage has broken irreparably is a question of fact which is subject to proof by evidenc~., The trial Court heard the evidence, analysed it and was satisfied their marriage had really broken dom beyond all recall. The matter μ&d not started at the trial Court. It had gone through the _Ten-Cell teader with close relatives and later to the Ward Executive Officer. Air these fail_d to recondile them. As properly stated by the trial Court, a m:arriage is a voluntary union between a man and a woman, and that once there is no harmony between them, there is no magic the Court.can do to restore their love., The trial Court was right in dissolving their marriage~ There is nothing before this Court to fault the concurrent decision of the lower Courts on this. The question of whether an asset was acquired by the couples during their marriage by their joint efforts is also a question of fact which is subject to proof by evidence;; ln the present. case there was ample evidence by their Ten Cell Lead.er PW2 ABILA.HI NACffiJCHI and te respondent herself that the house in which they were living was the property of the respondent. This was also supported by the relevant documents and receipts bearing her name. Section 56, 58 and 60( a) of the Law of Marriage Act, 1971 are in her favour. There is nothing before me to fault the concurrent dacisions of the lower Courts oh this, The record of the trial Court is very clear on the 50,000/...; which the appellant was awarded It was not his share as his contribution of towards the acquisition of that house or his right -d.ivisionlthat houseo In awarding him that amount the trial Court used the following words:- 11dai (now respondent) atarnlipa fidia mdaiwa (now appellant) kwa kuwa waluwa w.akiishi tnle (i,e in that house) kama mk.e na mme kwa kipindi kirefu. Hivyo mdai amlipe mdaiwa fcdha shs. 50,000/- kama kifuta jasho chake cha kuhama kwenye nyumba hiyo ambayo waliishi wote kwa muda mrefu.:i (i.e The petitioner to pay the respondent a compensation because they had been living in that house as husband ~d wife for a long time. She will pay him shs. 50,000/- as his consolation for vacating from that house where they had been living for a long time) Therefore it waE a mere consolation probably under customary law under the ambit of s. 114(2)(a) of the Law of Marriage Act 1971. The appellant had also been complaining right from the trial Court up to_this Court about some money which the respondent is alleged to have o e o o/3. o o o

3 grabbed by forceo. That money is alleged to have been a.cquirecL jointly through the saJ,e of their groundnuts which later accumulated through petty business. He said he was paid only shs. 34 1 000/-. I hve carefuliy considered this With the scarity evidence on rec6rd about it, there is nothing this Court can do about it._ It is upon the about reasons that I dismiss this appeal. E<Ach •· party to bear his or her costs of this appeal. !? ,'-•i I r ./ . .. So No KAJI JUDGE 4 .. 11.990 2£.~: Judgment has been-delivered in the presence of both parties this 4th day of November, 1999. B/C: Miss Nanyanga :.. P/A S. No KAJI JUDGE