Amina Sanane Mkweta vs Mussa Sultani (PC Civil Appeal No 73 of 1987) [1990] TZHC 48 (9 November 1990)

IN THE tlIGH":OURT OF TANZANL.. \tic Ub hili.SlJ.NCHJiJ I J AT JAR BS SALA.1115 PC CIVIL APJ£AL NO.· 73 OF 19G7 .w.dN.A SANi"NE l\iK~·.E;'l'.l, ••••••• • .iif.J?LIC .. UilT versus MUSSA SULTJ.NI ••• , ••• _ ••••••• RES.20NJENT JUDGMENT This is a seeond apeal. The appellant and respondent were wan and wife. They had lived-together for 16 years but never got children. In 196 matters became sow, The respondent gave his wife a talak. The wife went to oomplain to a conciliation Board. They could not be reconcill~d. The matters then went to court Kinondoni Primary Court. There the appellant presented her ease. Three issues were drawn.

1. Whether the .ma:r:x,iag.e had li.:roken down beyond repairf
2. Did the parties jointly acquil.'& th1;r pro~e:et.¥.,
3. Is it true that they built two houses jointly duri?'l.6 thei, marriage? The Pl"imary C·o¥.r-\ adjudicated upon the wa t\er and came to the following de8i~ian:
4. · It was agreed that the L1a:rriage had irrepa:raulY D.:roKe . .>:i down.
5. It was hQld that the FOerty was c4uired during their warriage b•t- shs. 10,000/- in addition to another shs,10,000/- given earlier if it was given at all, would be enough compensati.on f.nd would cover t~~- the assets (radio, beds etc.) ,. It was not true that there waiio a hor.ie joint1.Y bu-ilt t,Y then. The ·•. woman found the house - that is, at the time she got i:arried. ,in.;. it was not true that the houses were two, It was onlJ: one house. One remarkable, or call it, significant, aspect ·of the; judgment rf the primary court was that the ssessors advised the:-Jagistrate that the piece of paper on which it was written that the .. a;ipellant hc:...J received shs. 10,000/- frog the respondent would not )e accetei because it had no CCM stamp The C0urt then unaniu1ously agreed t0 order the responden ·. to iJart wi- L another shs 10,000/-. The appellant never got satisfied with that decision and. 3;10 appd.le:..i t0 the Eistrict Court. Her appeal was disallowed. The istrict kagistrate agreed with the primary Court that the marriage had indeed irre?rally bruken down. He also agreed with them that there was no house built Ly ~~eir joint effort to warrant my forwal distribution, i.b:mt the sh. 10,000/-, th8 learned District Magistrate was of the view that the decision of Laking the res_.:iondent pay another suw of shs. 10, 000/- to the a:cipellant_ ns r8_Yc.l_-_--- rle reasoned th-at the decision cau.1e a00ut because the ;irii..1ary c0ur1- ; - ·-· Magistrate ne-v-er sumwed up t9 the court assessors well, It was th,• vievr of the District Magistrat~~therefore~ that the fact that the chit h~l n: ... /2-

2 stamp of CCM was nJt aterial. So long as those who witnessed the docu □ ent it being written gave evidence, the docuwent was authentic. The learned Iiistrict Magistrate, however, felt that as the res.i)onJ.ent crillingly accepted to pay another shs, 10,000/- on top of the preious shs,10000/- ,. mentioned in the clint, his court could not do otherwise. So, in t_he end, it was held that the appellant be given, or e Qale to accept, in the long run, shs• 20,000/-. That sum of shs. 20,000/- would be enough for ooopensation purposes. Incidentally on this docuent, may be. I should p)int out that the Court of 1ppeal of Tanzania in its recent case of lLtiona! Bank ,?f...£?.&g!:.Biu° vs. Tanzania Cigarette Cor.;pany Limited (Civil .Appeal No 11 of 1909 -uniieportd) · has said that: 11 ------ a docuwent which is wade ·0:1 or in the presence of .both par\j.ee to a dispute is lilore likely to be true or wore co:rra.c.t. tA@ a d.o~~ made only "'o:t one of the parties :l.n the a::>eence. of tha other .reardine a watter in disputed" T document got signed by 'both parties, the man and wifa 1 and in prep.n•e of witnesses, who infact caine to testily in Ooart. It is m;v considered opi.ftion it was wrong to reject the docl..4ilent. The appellant, havin~ lost in the District Court nw app0als to this cour·t. · The we'"~~r'andum ·of ppeal of the a_pplle.Jlt has 'been i:1.rafte,' by Jr Lauwai .- t ~ ~ . ., . ,, ·: . . . ;, • . . ' ..• It has four ·grounds. If one reads all t,te srounds, lhe gist of -~~e complaint can''·be ·suniwari§ed ·as fcill'owss That: the . .,;.,r'i1.:.;;y"'ciourt .;rolgly oawe to. tno:t figure of shs ·;(1,000/- as ·oontritn{ti·0n "to the .. 1atriw0nial BSfi16t~ 11 , That the Jiatrit:·.:; foatSistrate al'so wro'nghly'ca..ie· :to the figurt ..;;,r shs_. 20,0JO/- as .i:Jpe:·.lants 1 share in 'the ;d'ist:rib.ti.'tio·n :)f raatr:lpntal assets" ' I have read the ·proceedings in bot\ l owe;r c::,urts. I aui of the consiJ.err;_; . .. J;--ni:On-·-t-nat· -tha issues of 1.iatri..,onial assets were adequately halt with in '. ., : 1 • the pri@ary court and that the decision given there was sound. 'l1he prh1ary court, -after consid.ering the availablfi evtdencf waa •:Jf the vie, that no house had been built during the '.f)endency af ti+e•r oa:rriage; ana ,econdly, the saoe· p'rimary court held that sht. 10,000/• hat was psid (wti,h incident.s.lJ.j later got ahanced as it were, t.:> shs. 20,000/- ':JJ the District l'ii,1t;itrate) was giTen after the apellant herself had askei fQr it. In f~ct fte had askoi fo::r. 11 ld;futa ~ach0zi", t:J put..it in her own la:r.,guag$, ~ad that mon3y was the "kifuta r;iachozi" she had asked for, 4 gain, wlth regard t'.J the h:Ju,io, thv;:.e '"'"s a definate holding that the house could not for □ an issue as the f:.eue was aoquir.ed by the resp:mdent before he got .ua,ried t0 the appellant. So; the Ct..S..; of Bi Hawa iVioha.wed quoted by 1r Laowai could n-:it -::ie applica'ble hert-. N,jt evGn tne-case· of·Haraid ..,wir Ha,uid v. Maim1)Jla'1J...1!r(1977) LRT 5J could be .1.)plic&blu, a-s .~oid ~s. case ·talks of assessu1ent of C:l!ltributions acquired. during :.;'J..1'r1a 6 0, ••• /3-

3 This is. a second appeal. An appe:llate court, on second appeal., need

• not· lightlY disturb .finding's of fact of a trial court ( the priwary Co\lrt in our case) which got upheld. Q,1> .f3:rs·t appeal, unle~.s it is clear on -l'a.ord. that· the pro.oess by which .hose. findings of fact were arrived at was patentlY n.¢ng •... I see no w.rong process by which the findings of -fact we.re._a.rri ved a:t ; __ . tho trial .('.ollrt ; .. "the :priwary court. On the contrary, he appr.llant .i••:, .. luck.J, that she aked .for shs-. 10 1 000/• but in the end got shs. 20,000/-, The a.p1:red. is dismissed in Js en.·Urly. as this wc:1s a Legal Aid Sbbe ... c case,. I.. make no order as to costs. )th Nov. 1990 Dr· Lamwai for •he appellant ·Respondent - abseet J • .r,.;. C. I'rLSANCHE JUJG~ I' certify that. it is a true and conrec,t 4'0PY of the original. v·-. / DEPVTY .ReGlSTRAR