Magdalena Aristaric Urio vs Aristaric Urio (Misc. Civil Appeal No. 40 of 1996) [1998] TZHC 2466 (12 May 1998)
Judgment
...
IN TIU: HIGH COURT OF T~\NZAlIA
AT MOSHI
MI$Co CIVIL APPEAL NOo 4o OF 1996
(c/f Misc. Civil Aplicntion No~ 6/96 ..
Hai District Court)
,·,
·-:·,,
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MAGDALENA ARISTARIC ORIO
Versus
ARISTARIC URIO
I • eo RESPONDENT
-In Hai District. Court Mieceilane~ Applic.."-tion. I/.to .6 o:.f 1996 the applicant
Magdalena 1\ristaris Urio sued her husband for the cus9dy and, _mai:otenru:ie>Q
of three children, the issues of a Christian Marriage .solemni.zed in 1989
at Sanya Juu Catholic parish in Hai Distriet per the man-iage. per the ·extract
. . ----e.;rtificate
annexed to _the affidavit in support of the application.- The application
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was only for.custody and maintenance, not divorce .. Th District Court
dismissed the applic:
0
.tion with costs thereby giving rise- to thepresent
appeal.
The respow':ent was served by publication because his current· address is
unknown the notice was published in the UHURU of 13.12.9-.... . .
of UHURU ih the record. Despite.thepublicntion of the notice the resporrent
did not appear in court so the appeal proc·eedc'd exparte.
. .
Mrs Minde learned advocate for appellt filed a written submission
challenging the dismissal of the applicntion for custody ahd maintenance
by the trial court. She proposed that the trial should be nullified be-cause
issues relating to· custody nnd maintenance, the subject ·of the application
were not framed. She cited the case of Norman versus 0verseas Motor Transport
(1959) E.A. 131 where-in it was hold that
::the failure to frame issues is an irregularity ••• n
••
2/ ..
P~ stated:
;iit is therefore the duty of the court to frame
such issues as may be necessary for determining the
matter in c<mtrovrsy between the parties ••• :i
A perus~~~~ce,)dings of the trial ,eourt shows that a total
of sven i_ss,uet\put of which issues 4,5 ) of the Law of Marriage Act, 19?1 the resporr>. ent
husband ( who the evidence on record shows has at,and; 6 relate to custody and
' . ' : ' ction '63("".... . '
maintenance, the subject of the applicntion• · There was therefore no
irregularity in framing the issues-, , . ,, .
The advocate for the appellant submitted thdt. the appellant and her
three children have no home for they are- livg ·in · rented premises. In that
respect uncler Sl.oned and negl.e.cted
to provide for the family) has a. stawtory ~ t.o maintain his family. The
respondnt is under Se<:tion li.5,(J.)..(b} and (c) of the Law of Marriage Act,
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1971 liable to main.ta.in his wifE: or the marriage has"·not as yet been
.... di;solved. Mrs. Minde fther cited authorities in support of the prin.c.ipl.~
of the w~_if e tal childre~ of t'~e
enstranged spouses m:u,st be Jointly and together provided for·by·the parent
spouses until they re2..eh the age of majority. The thr.ee children alao
have to be educated and when they fall sick, have to be·treated·and oare<i for.
••. 3/ .••i too cllildren boing of ~ nt, to maintain his family is pronounced in Sec:'tion 63{a) and·s. 11,5(1'
(b). and (c) of .the I.aw of Marriage Act. The trial ·court should therefore
not have dismissed the applico.tion for the ·3 m' ~ en
,.
are J,.i ving ¥i tp their mpther so there · is n.o co.use to chan:ge or disturb the::ir
custody.
The duty of a husband and father, as is tho co.se with the present
respondo:dy ' .<
. ;'•'• . .
matters.
The ·issue is· whether the appellant .is entitled to maintenance-and
cU!b:)dy 'from her respondent husband,
The appellant is now in ousfodyof the three· ma.:rita.i .chiiciren Caterine
.... ' ' . '
born in 1985, Rose born in 1987 and.· Elias born in ... 1993. These chil
In vi-e,,,. of the a~ the appeal. .i.s .allow.ed. The J'Ge:l'O!'ldellt i,;
Urio is ordered to pa? shs 20,000/. monthly matntenap.ce for his family
consisting of the appellant wife and the tbre:e maritnl. issues from the date
-of this judgement. The ;aintenance order can be revised as and when condition
change.
The appeal is- allowed.. .'«;ts o:! · the :lfl::::.eal to be pairlby w respoodnt..
It is so ordered.
At Moshi thi.s 12.5.98
Eo N, MUNUO
JUOOE
'.,......,.., ..• ~ . .,...
l2.51t98.
Appellant : absent "'but. ~ not.Uied
J.-{
espondent: absent.
E. N. NUO ..
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IN THE HIGH COURT OF TANZ.I\NIJI. AT MWANZ.A. HC CIVIL CASE NO. ~ OF 1996 MAGDALENA BARUT! : : : : : : : : : : : : : : : : : : • • • • •• . . . . .. . . . . .. . . . . .. APPLICANT VERSUS
- NEW CENTURY CONSTRUCTIOO -c.o.·: IiINI'l'ED 2• N.B.c. )) &U UI RESPNDENTS · ) RULING MA.SANCHE J. This is an application for injunction1 It is made by a person called Mrs MagdaJ.,ena Baruti. The applicant has sued a · company going by the name of New Century Construction Company Ltd. Apparently the applicant is a, director in that Company - a Company owned by the three of them - herself, her husband Mr Baruti, and another person going by the name of Shadrack Kang 1 wa. These are _the . facts which are appt.rent on the reoord.· The applicant, her husband Mr Yahya Baruti and another person called S~ck Kang 1 wa own a Company ca.lled New Century Construction .. Company •. The husband of the applicant is the Managing Direwtor,. 11be applicant is a Pirector and the other._third person is also a DirectCT •. , .. 'lheir Company is a Conetruction·Company indeed, for in their minutes accompanying the application for overdraft, dated 15/7/94, they say that . they were applying for the overdraft of shs 35 ,million · for projects· like: 11
- Completion of Zonal Treasury Building ·at Mwanza; 2e Completion of Regional Hospital. - MwanzaJ .
-
- Rehabilitation of Regional Engine~s Office Mwanza. 11 t
.. 2 ... Indeedt they got the ove:t'-draft 1 and it would appear, even the 9:pplicant does not dispute this. Now, in the application for ove:t'-draft, the three have mortgaged a house, a Living Flat at Plot No. 192 Block D Isamilo. 1'he house no belongs to the Managing Director himself. Th.ere is L doubt, the Managing· Director was perfectly entitled to ·do that. It was his house '\hi.ch he ' had given out to_the Company, as-it were, to be put .on mortgage. The Company has not paid back the money and hence the seizure of the house or Plot No 192 Block n. I.sand.lo. The applicant says that she did not consent to the mortgaging of the ·house, suggesting that the signature on the application for loan on 21/4/90 is f orgede When Courts entertain applications for temporary injunction, they are guided by the following principles: . 1:.· There nru.st be a serious question to be tried (fact or law) and that there is a probability of the applicants getting the relief claimed; . I 2. 'There is a need for the Courts interference to protect the applicant against the kind · of injury. The kind of injury should also not be irreparable. 3. The applicanj must prove on the balance of probability that the inconvenience caused to him by refusing to- grant him the order is more serious th.an the inconvenience going to be suffered by the respondent if the order is not given" (see case Attilio v. Mbowe /J96i/ H.C.D 284) ·In the Book by the three authors Bullen Leak & Jacobs, Precedents of Pleadings 12th Editio1:-, is the old case of Aslatt v. Corporation of Soythanpton (1881) 16 Ch~ n. 143, where Jessel M.R., at page 148,
3
talking of true principle on which a Court should act in granting an
J8.i~ to enforce any right, legal r equitable 1 said
that:
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The word 'liust or convenient• did not
mean that the qourt was to grant an injunction
simply because the Court thoughltit convenient·
it meant that the Court should grant an injunction
for the protection of rights _or for the preention
of injury according to legal principles •••• H
0
The Court will only grant an injunction
to support a ~~ right
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Now in light of. those principles, what do we make of the application
by Mrs MagdaJ.ena.Baruti? ..
First, this applicant is not coming to Hequityi
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with
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clean hands'
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Her hands e,.re soiled. She i_s a plaintiff suing herself .l.. blowing hot
'.
and cold•· She is the one, as a co-director, who opted to have the house
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of .one of them (:pirectors) to be· mortgage• . She cannot now be i.telling the
Court that she was not a party to mortgaging the house.
Secondly, the record is clear that at. te ·time the house was ·
mortgaged, she was the wife of the ovmer of the house -. t};le Managing Director
of their. Company. · It sounds to me extremely frandulent to have don_e so,
and now suggest that she was coerced into signing, or
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that, her
signature was forged by her husband•
Thircily
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the house is not in her name 0 It is in the exclusive
name of the husband. It is the law that when a house is in the sole
name of a. spouse+l and there is tf..t deed to hat effect, that house
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does not become a matrimonial property (see case Said.a Saidi v. Saidi
Maham - Civil Appeal No 26 of 1990 of Court of' Appeal Tanzania
Dar es Salaani. Mnza.vas·J.A). so, if the Managing Director,·. ~.lill the
husband of the ap!)licant
1
mortgaged his own house, the consequences
befall. that ."person. The present «:3.Se is ~ of the Managing Director
.... ·,.
... 4 - protesting that his house is being auctioned.. Fourthly, I would like to say that as was held by my brother Mchome J in the case of li_.B._Q_V. __ $everin Eitili Moxo H.c. Mbeya Civil ~ · CflSe ,No. 78/90 1 a person who mortgagea. a house in which he is 1iving, is at risk of losing the house in case there'is default in payment. In short, such a house becomes liable to attachment and sale. This application for a temporary injunction is rejected and dismissed • . r think, in t:he instant matter I should go further than ordering for the disndssal of the application for injunction. I have inherent
powers to strike out pleadings which are frivolous and vexatidla and
which are an abuse of Court process. For as Bullen Leak a"ld Jacobs
say in the book quoted supra (at :page 149:)
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Apart from all rules and _ordes, the
Court has an inherent jurisdiction to
s or dismiss every action which is an.
abuse .of ts process or is frivolous or
vemtious .and to strike out all pleadings
wh'ich are shown to be frivol.ous or vexationm.e" '
The -authors go on 'to sayt that:
0
This inherent jurisdiction is ·distinct from·
~ conferred
the powers of the Court . . . . by the rules
but is a most important adjunct to thbe powers 0
From the earliest times the Court exercised the
power under its inherent jurisdiction by su~
process to 'terminate proceedings which were
frivolous or vtions or which were an abuse of
,process.n /J!i.e: authors give the following cases ,·.
as source: J ohru:l,gI,LY Stc;mhml§ !J92!J 2 K.B.· 587
C.AJ Metropcp.;tan Bank v
9
Pooley (1885) 10 App (as
210 at pp 220 and 221 - Lord. .ED.ackburn)
.•.•...•/5.
'I.
lfl
lncl..dents.llY,, • inherent jurisdiction of the Court• , is defined (by sam'e
authors to mean (at page 149)
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the reserve or fund of powers, a residual
souece of powers, which the Court may draw
upon as necessary, whcmever it is just and
equitable to do so and in particular to ensure
th~ observance of the due process of law,
to prevent improper vexation or oppression • •. •
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(the authors quote a case hich adopted and
applied the definition, the case of Montreal
Trust Co v. Churchill Forest Industries (funitoba)Ltd
-- WAM#,0 fl , •:-------
/)97:fl 21 Dominion Law Reports (3rd Ed) 75)
Frievolous or vexations pleangs and actions and also defined by
the same authors (at page 145): They say:
n a. pleading or an action is frivolous
when it is without substance or groundless or
fanciful and it is·vexations when it lacks
bona.fide~ and is :11~~~?
5
or oppressive and
tends to· cause the opposite party unnecessary
enx:i.ety
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trouble and expense, Thus a proceeding
may be sai·d to be fri volou.s when a party is i ttifilng
with 'the Court or when to put it forward would be
wasting the time of the. Court
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Now, llack to instant matter, Iam of the settled view that the
applicant has l'!,Othing _to complain in the matter,·
If anything, she is trifling with the matter, It rrcy be possible that
she has been seht. to t;ifl,e in the mat_ter~ This is seen by. the clear
~ .
evidence that the person who pledged the house knows that he has no case
against N.·B.C. For; truly, he t?ok the money ahcl" truly pledged. the
house.;
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In East·-·Africa, the case of -~...!.• lmik of India /J96§/ E.A. 13t
(Law J ,A) has held _tb..a.t a Court of law ·may, ven by just loking at ··•
. . .
••••••••/6.