Anjela Mwajombe vs Xavery Mtweve (Pc Matr Civil Appeal No. 2 of 1997) [1998] TZHC 2407 (24 July 1998)
Judgment
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MO SRI_,_ J. _
IN 'T.
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HIG HIGH COLdT OF TANZJ,.NIA
AT HBEYA
(PC) Yi.A.TR. CIVIL APFEAL NO. 2 OF.' 1997
(From Civil Appeal I'Jo. 72 of 1996 of the
District r:o,..rrt of •ibeya District at Mbeya
Bfore: 3. ongole Re.side:-.t rfa.gistrate)
1T .
versus
x.A VIGir.t HTi 1 Ji:\r..!: o n C O < c O C O o c O o O O o o O · RESPONDf.i.J-:T
JUDGM"iNT
This appeal arises from an oro.er ,made by the primary co1Xt of Uyole in
rspect of a matrimonial house of the parties in Mbcya hwn which wa,s confirmed
on appeal by the district court •f Mbeya.• The p:a.rties were hush3.nd and wife.
The history of their matrimonial life was saddenil1g.
From 1S90 onwards the respondent became a psychiatric case. His mental
illness was sporadic. It would erupt frorr: time ·,:o time. At times it ·was
violent. But he ar,pear,s normal and respectable. He was, and still is,
attending treatment at Hbeya Referal Hospital wh,ire he is attached to a
specific pychiatric doctor. He was an employee cf the Judiciary at Mbeya
High Court. But his illness incapacitated him ar.d could not properly work.
In January 1995 his employment was terminated on :nedical ground. And as
though that was not enough, the. a:Pl1e.llant in conGequence, petitioned for
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divorce which was granted on 24. 11.95. '.i.'he appellant was, and still is, a
nurse at '1beya Referal Hospital.
The question of division of matrimoniaJ_ assets then arose. Among the
assets was tl::.e house in Mbeya tNmo 'There was also a house a.t Upa:ngwa village
in Ludewa district whic4 the respondent claimed he built himself. Ris mother
lives i.11 it,, But the appellant wanted the house in town in which the respcmdent
resided, a.nd still resides. 'J:'he primary court, however, unanimously d;ecided
that the respondeqt should remain in possession and occupation of the :1ou.se
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in town in order. to facilitate continued. and consistent treatment of his
illness at I,:beya Referal Hospital and would then pass to their children upon
his death. 9:'hat decision asrieved the a] and a.oove all other considerations,
(;·
was compassion. Lfter all, it was not established fo evidence that the appeJ.lant
had. directly contributed' in mone5' or. in ldnd bwe.rds the acquisition of the
houGe in town. Perhaps her contribution might hav~ been in the form of the
domestic services rendered 1,1hich no1:1 count on the authority of the Court of
Dar es Salaan1 T?e~;is-try, unreported. Even then, the arpellant, in the circwnsta-
nces, could not have fully rendered the domestic services expected of her.• She
was nnt a full time domestic wife. :She had not sacrified her own career on the
alter of matrirr.onial life. She. remained employed and self--earning •
. In the event, this'second a:;lpeal is, and remains, dismissed in its
entirety. 'l:here shall be no order for costs in tb.e circumstances.
For '!i.ppellari.t: Present.
for Hes})Ond.ent; Absent.
JUOOE.pelJ.ant who preferred. an appeal
against it to the district court of Mbeya which upheld the decision and dismissed
the appeal. 1.'be appej_lant then· preferred this second appeal against the concurrent
decisions of both courts below.
With respect, I am sa:tisfied that both .courts below had arrived at a
fair and just decision in all the circuJnstances obtaining in this case., rrhat
decision had adequateJ.y and poperly taken into account the plight faced. by
the respondent. It was a commendable decision which had boldly rejected the
somewhat alarmingly inconsiderate and selfi1sh interests which had prope1led
the appella;2t. What was i"wolved here, ove1