Bernadetta Minga vs Mohamed Lungala (Civil Appeal No. 68 of 1993) [1998] TZHC 2095 (9 July 1998)

i ( .... Tl1.0 ,:ipJ:.Gll::int Bi:;:Ul"/,:'..Y°'.:'l'T: .. J•Q1!C1 is· >1p::.,e,=i.1ing ::i.:r=iist the c".ecii,ion '.)f iH,,.ondooi ;J;Ltd;;:-·.Gt (Cd:iit.-:; it~ Civil A1;,1,0-"ll No. 82 of 1992 1:1hereby .q h:)u.sc ::i .. -., plc,t F o •. 38 Block 1 .A' Vi.ikoch eni Jointly·by the existence of their mqrriqge. dowe ➔ ver the '::i::\r,;:Jines::, c):f tl1eir :;;::irri.qgG did n-'.)t l0st much. Batween 1983 -~nd 1991 tb--=tt •-:1<:irrt·;gs l::r::-k8c1::,wD irrcperqbly. petition for divorce qn: cuctody nJ qi □ te~~nce of the J intereat f th& w::ilf::ire of t2 children jf they were left under the cuGtojy ::in:.:l cse of their !,10tber the ::\ppelVrnt. so ordered nj the respcn6et wqs ordered to pqy mqintenqnce c osto.

2 During foe bel",ring en is.<oue concel'ning division of -a houe on Plot Noo 36 Block ,; N 1 Mikocher,i cropped up •. The appelle.nt maintained thd hou,°'e 1:1e.,.c3 not Rubject to diviBion because it '.:N::l.8 her om propertly. '1lhe respondent did not cle.im specifically for division but fa.tl:ler for a ae·claration that he built thr.it house for the· affelb.nt D.n.d foeir ~ childl'en. After etr.e.J.uatir,g the evidence the trin1 court was satir-:fied that hou!"e was the sole property of the appellnnt md was not subject to divi.sion as between he:r and the respondent." 'Ihis agg:rieved the .respondent who affealed to Kinondoni District Courto The District Court held thut house was acquired by joint efforts of the appelln.nt and the respondent during their mr.i.rrie.ge~ It w,- . .5 therefore ordered that the respondent wa,.c:· entitled to 507b of its value. The D.ppeliant wa'3 aggrieved. Hemce this appeal. At the hearing of this appe."".l the· appellent was represented by Mr. Mkondya ·) learned advocn.te, o.nd the respondent by Mro Htungwu learned advocate. Both counBel submitted written submissions. I have ce..refully considered the written ,submission by learned co1melo I have also carefully con.sidered the ov8rDil circumstences orrounding this case. There i,c; no doubt thc.t the ;judgment by the first appellate court was deliver on 19/7 /93 and tho.t the appell,illt file1 t 1 1.i.s n:ppeal on 21/10/9J which , :arc about two days outside the prei=; cri bed period of 90 days • But since she ,-,:-.::, ':: :;:r,:·: .:_ cd with the necessary documents on 7/10/93 this apped ie within time by virtune of s. 19 (2) (3) of the L'"W of Limitntion /ict, 1971 o The respondent, preliminary objection on thi-:; is therefore overruled. The respondent complained also ns to why the appellnt did not attach a copy of the decree to r..er msr,;crendum of appeal as required by Order XXXIX Rule 1 (I) of the Civil Prc-cedure Code, 1966 'Ihe copy of judgment accompanying the memorandum of ctppe3.l served the purpo!':e bf.:cau.se the Civil P·rocedllre Code, 1966 does not o.ffly in Prim.'.lry Court & Appeals from Primary Court fall under the I1c.gistrates courts Act 1984 and other relevant proviRionr-- of +aw. This prelim:i.nary objection i,s al:o over ruled. 'Ihere is no dispute that Plot No. 36 Block H Ai, Mikocheni iR in the nme of the appellant,. .P.ccoroirig to exhebit the appellant .,..,a.,c:; allocted th8.t plot by the Allocc:i.tion Cammi ttae which held its meeting on ?8/10/19&>0 'Iherefore the respond•nt's alleg2tion that it was hi.sand that he deliberately wrote it in the name o:f the appellcnt in 1981 after getting mGrried is not truee It is true it wo.2 in July 1981, when the fright Clf occupruicy waF, iP.sued when their marriage wa~~ .::.bout four months oltl:i, But she had applied herself a long time ago before their m2.I'riage ed wa-:; nlloce..ted lmor::t e. yee:r before their marriage, that is on 28/10/1980. ln l.?JJ the bearer of the Right of occup!::-.ncy is presumed to be the ovmer of wh.-:i.t i8 in that document- unless he obtdned it frandulcntly .. There is no such ;,_llege.tion in thi c~e ..

• • 3 SeconcUy, there is i:li,,ple evidence tb:::i. i:; before the qppel.lnt wqs mqrried by the respondent she ws employed by p Tnzqniq qn.d h::-1d 3 children by other m.an ~ She continued being employed by the s;:,id employer even -;,;;::;en she -JAS m;cirried. She wqs still employed even ;:it tbe time viben tbis cqse wis proceeding before the originql court! Th.ere is qmple evidence th~ t during the time <vhen th<=t t houa"e wqs built the .qppel 1.:::in t securec1 -'1 Lo::tn from T::mzni::\ Hosing Dqok qnd qnotbe; one fro~ her employer nd she is still being deducte;d :from her c hiry till the ye~r 20OJ. There is no sufficient evidence thr-i. t the respondent contributed ::inything Substqntiql qs. q joirrt venture. Of course when their love

1 wqs still rtot the respon,:h7mt could "i.JTve qssisted her with this or th:=tt.. But ;:ill this is merely for J.ove .qnd ::lffection qnd not R joint shre. there \vAS no bqsis u:iJon Jbicb the first_Ftppell.qte court is hereby quqshed .qad tbt of the Primqry Court restored. I would only dd ono tting in pFtssing. The .qppellqnt w:=-ts gr".lnted custody of' t.i:_;e ·J cL:Lldroc.. But since qll of them ware .qbove 7 yeqrs old they should hve been qsked FIS to where they preferecl before m.q1;:ing suc"i:i order. Since ·t11is is not .qn issue in this Ftppel I must .qnd up here. Apeql .qllowed with costso Mr. Mkondyq: For the .qppell.qnt Absent: For tbe ilespondant c.c. Lqz.qrous JUDG 27 /12/97 Order: Judgme □ t on 9/7/98 Ldvocqte Mtungwq to be notified • Sgci. Ilishote - DR 25/6/98

... ... 4 9/7/98 Corqmg Mshote - DR Mr. Mkondyr-i. g For the A.t'i:-'e l lr-i.."n t Hr. Mtungwqg For the R0spondent c.c. Lr-i.zqrous in Judgment delivered this 9th July, l998 ,._ b -"' · · r ] 'I ~ j t· . 11 ttle r-i. sGne oi r. ~~ondyq ;6r ne qpe r-i.nt in the presence of Mr. MtungwR for the Respooaat. 3gd. Mshote - D r;; .:.-. 9/7/1998 F.S TDHGI j)~~;/ · 1:~-" · 1 ISrfRAfl 24/5/2000