Fatuma Juma vs Omari Mwalimu (PC Civil Appeal No. 68 of 1994) [1998] TZHC 2092 (21 August 1998)

IN THE HIGH COURT OF TANZANIA DAR ES--SALA.AlVi DISTRICT iIBGI3'l'RY AT DAR ES SALAAM PC. CIVIL AFF.CAL N0.68 OF 1994 e ♦ e t •• e • e • e e • e e Cl O e •• RESP()NDENT . J .U D G M E N T BUBESHI, J: this The appellant has filed / _ secc,1.:cl :r 1 r2,.1 to challenge the decision of the District Cou.rt ::(L;0nior.d., which upheld the judgment of the trial court. After trial, following a petition fil.:?d the appellant·, the trial court clecid2d. to grant, parties a divorce, and declared that the appellant had already been given a house at Magomeni. by the rGsPondent and. th21.,::::t):•:'•2 she was no·t longer entitled to further di vi si:)n o:f.' m2'.·crimonial assets• As observed, the District Court, aftc::r hc:i.ring the appeal, came to the conclusion that the a::;rc.<.l :c'::; ,::d lacl<:2d rneri ts and sanie wr::cs disn.issed. On further appeal to thj_s court 1 the: ar,r,,::llant who appeare·d in per,3or, canvassed the same points argued during the ,:]_}.1;2;:1J. at the Disrict Ceiurto In the main, the appellant told this court that sh::: ;-:;-ci.J_l loved her husband anj would not wish to separate :L,:'oii1 him She furthE:r explained that the how;e :.:1t 11.'I?. ~- .. r:teni was sold by corisent of both Parties and the i::r::-cc:.:Js ucilised to establish a 'shop' o.nd rs?air one fr.idge. She is therefore laying claim on that particulci.r h,mse. She insisted that the pers,)n who bou,~:Lt t.12 1v12,..;-on1eni. , CJ is known to the respondent and that it w3.s the latter who arrang,~d the deal. The responcte·nt., on the other hand,has denied complicity in the sale of the Magcme ni. house. ,. . . . •• ·• ... "' C, " / ( • .. ti . ·,, L., house . .

. ' J.:JCUL.,nc,s not exhibited during trial. These t:i.re thi2 ai':fidavit on sale of the housE 1 3.t Shimo· la Udongo and not fv'iagomeni . . and a den;and nJtice :frun1 Cj ty Council regarcli rig pay-n,ent of prop2rty tax at Shimola· Udongo. Four i,s,su2s th2refore emerge from aJ.l this, Dafiiel¥, IVIagomer.J. house whether this is the, same h.ouse reff.erre(l ta as the/! _ .. - i • .:.. whether then: was a witness to -~,his sale. · .. •··whether transfer has 9een done. whether the buicr Omari Allly E= known t0 tk1e respondE.=?nt. Unfortuns.t2J.y botll the tr:i,al court and the first appellate court did -not address their mind to tL:: ;:,:,ir,ts above. Whether the appells r,t is onti tled to ar10thqr house can a.nly be determined once q_uerries on the Magc.,IL:Ji/ShiL-::; la Udongo house have been answered. In the preL,ises I 12rHi t this appeal to the trial court v,i th direction that the issue of whether or not the IVia.gc-meni or 'Sl1i1;-;o la. TJ.jc,ngo' house was sold by consent f parties to Qrn3ri ,'..J.ly bo sorted out. In all oth12r espects I think ..lche apoal has no merit • ... The respondent was not incJ.ined to contirue living with the? appellant. The appe::llant filed the :_:ietition herself and had she thought other-wise sh2 ought to have withdrawn the pe::ti-tion/sui t and r:ot to subrni t the tter in course of arguing the appeal. Appeal is her2br .:.:.ismissed. DelivGred before _parties. A. G. B\J$L3HI JTJE 21/8/98