Samwel Moyo vs Mary Cassian Kayombo ((PC) Civil Appeal No. 21 of 1996) [1998] TZHC 2472 (3 July 1998)

MOSHI J. ·------1~ ~ IN THE HIGH COURT OF TANZANIA ·· AT MBEYA (PC) CIVIL APPEAL NO. 21 OF 1996 (From the decision of the District Court of 1-lbeya at Mbeya in Civil Appeal No.124-of 1995 Before: S.M. Rumanyika - Resident Magistrate) SAM\tJEL MOYO ·o o O O O C O o ~ C";t O O O f;l O ·, o 0- ~ O APPEILA.NT Versus MARY CASSIAN KAY OH BO • • • • • • • .• • • • RESPOT\TDENT JUDGMENT This appeal arises from orders for division of matrimonial assets and maintenance made by the district court of Mbeya. The assets in question were two houses at Nzovwe area within the Municipality of Mbeya, and two pieces of land (plots), one at Nzovwe and the other at Inyala area. The parties contracted a Christian rites marriage o·n 1.-11.83.. Two issues came out of the marriage. On 11.·7.95 the respondent, Mary Cassian Kayombo, petitioned for divorce before the Urban primary court of Mbeya which was granted on 19.10.95. The primary court-was satisfied, upon the evidence before it, that the named properties were not matrimonial assets acquired by their joint efforts during the marriage within the meaning of section 114(1) of the Law of Marriage Act 1971, hereinafter called .!Jl._9_t• It was amply established in ,evidence " that the properties were acquired through the efforts of the appellant alon before the marriage was contracted. So the primary court did not~ and :r;_rhtly so, make an order for the .division of matrimonial assets. Also no order for the maintenance of the children was made as the children were staying with the appellant. And no order for the maintenance of the respondent was made in the obtaining circumstances.· The respondent was then a personal secretary at the R,DD 1 s Office. She is now employed in a Private Company. The absence of an ord~ for division of matrimonial assets aggrieved the respondent who,.in consequel~e, pref'erred an appal to the district court of Mbeya. / 2 .ollOOOOOOj ···· ..... ,'/~.: . ;~~;;::-?•··•· ":s·. . ~ .. !,F, .--- ~'-:' ,•

• 2 - The district court (S.M. RlTI1ANYIYvt, R1) upheld the very sound finding of the primary court that the relevant properties were not matrir~onial assets acquired by the joint efforts of the parties during the marriage. The learned magistrate, like the primary court, was satisfied that the properties were personal to the appellant he had acquired before t'4e marriage. However, for reasons based upon lack of proper understanding of the re.levant provisions of the Act, the learned magistrate went ahead and ordered the division of those properties between the parties. The two plots or pieces of land, one at Nzovwe and the other at Inyala, were given to the respondent. An order for the maintenance of the respondent by the appellant at the rate of shs.5,000/== per month until she remarried or died effective 29 •. 1.96 was also made. The appellant, quite expectedly, felt aggrieved; hen,ce this appeal in which both parties entered appearances before me and arqued their respective sides of the matter themselves. Three, grpunds of appeal were preferred by the appellant. They were:

1. That both lower courts had no jurisdiction to entertain the matter in that there had never been any reference of the matrimonial difficulty to a Marriage Conciliatory Board.
2. That the learned appellate magistrate, having fcund as a fact that the maJ."'riage between the appellant and the respondent was contracted in 1983, · erred in law in ord.ering division of property that was individually acquired in 1982 by the appellant alone.
3. That. the·· learned appellate magistrate erred in law in ordering maintenance allowance to be paid by the appellant to the respondent in a ease where the latter is the cause of all problems in the matrimonial home. It was conceded·by·both parties in the course of the hearing of this appeal that the matrimonial' difficulty had been referred to a Marriage Conciliatory Board in terms of· Section 101 of the Acto •So the f:j.rst gr'."'und of appeal becomes invalid. The second ground of appeal, however, '3 1'.'ler.+:. The power of the court to divide matrimonial assets. i; d.e;,:,, _·r..,, , •• ',·c

• .3 - 114(1) of the Act which reads: . 114. (1) The court shall have :power, when granting or ·subsequent to the grant of a decree of separation or divorce, to order the division between the part'ies of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such assets and the division bevdeen the parties of the proceeds of saleo From the citation to, and the wording of, section 114(1) of the Act, it is apparent that the assets envisaged thereat must firstly, be matrimonial . ,,__,, .. --------............ :-. ..... ,, .. "., f3-Sstf3; 'Secondly, they must have been acquired EL.__th~ durin,,1Lthe ina.rr_j.,\g!; · and. ~~dl:l, they must ·have been acquired by _th.,:i.;t' -~i!ef.f.or~. These three condi½ions must exist before the court 1 s,power to divide matrimonial or family assets under section 114(1) is invoked. In this case, the se.£?nd and third conditions were not establishedo The relevant assets were acquired before the marriage by the efforts of the appellant alone. Under section 114(3) of the Act, reference to assets acquired during a marriage includes assets owned before the marriage by one party which have beeri substari:tially improved during the marriage by the other party or by their joint· f:t.rts This, however was not established to have been the case here. I am satisfied that the district court erred in law in its order for the division of the assets. That order was clearly perverse and it must be quashed. I pass on to consider the third ground of a 1 :oeaL In terms of section ·115( 1) ( e) of the Act the court may order a man to. pay maintenance to his wife or former wife when granting or subsequent to the granting of a Decree of divorceo This power is discretion.ally which must be exercised judicially and/or reasonably. The Act prohibits the exercise of this power unless for special reason. 1 1 he provis to section 115 read?: Provided that where the marriage has been dissolved, -the wit:e .shall hf'lt, unless the court for special reason so directs, be entitled to maintenance for herself for any period following tne date when the dissolution takes effect. fllc-ooi,•oo•)/ 4

,J In this case, I am satisfied that the respondent was not entitled to the order for her maintenanceo The district court did not give any reason for the order, let alone special reason for it. The respondent had not asked for her maintenance at the trial and before the district court. This would account for the fact that the primary court, in its good sense, did.not make such an order. It would appear that the order. for maintenance was an.undeserving gift from the district court to the respondent. And more, the order was made without first inqiring into the means .of the appellant. It was arbitrarily made It is the law that maintenance must be fixed in relation to husband's means- SEE A•¥:.:,. · .I.!"__e!._=h__VA _Y:1~.U:.f'..u .. AJ:hymi ( 1970) HCD 119. This omission to ascertain the means of the. appellant, that. is to say, how much he could afford to pay, .before deter;_ mining a figure, was fatal to the award for maintenance. And lastly, that o:r:<der ' . ,fo maintenance was, in the circumstances, completely unnecessary •. She had not been a full time domestic wifee .She had not sacrified her own · carrier on the . . . alter of matd.,-nonial life,. She reraained employed and self.:~earning during the \ ( marriage end after divorceo The divorce, therefore, could not, and did not, in the circumstances; have had the undesirable and sad effect of 'practically thrusting her into destitutiono I am satisfied that the district court, likewise, erred in law in its.order for the maLntenance of the respondent. That order had not been the resu1t of judicial and reasonable exercise of discretfon. It must, likewise, b.e quashedo I accordingly allow the appeal, and hereby quash and set aside the district court's orders for division of the relevant assets and for the maintenance of the respondent. No order is made as for costs of this appeal. AT MBEYA. 3 July 1998. For Appellant: Present. For Respondent: Present. B.P. J.10SHI JUIX?rEo