ANNA KANUNGHA v ANDREA KANUNGHA 1996 TLR 195 (HC)

 ANNA KANUNGHA v ANDREA KANUNGHA 1996 TLR 195 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

D

CIVIL APPEAL NO 6 OF 1995 E

9 March 1995

Flynote

Family Law - Divorce - Division of the matrimonial assets - Basis upon which division

to be effected - Section 114(3) of the Law of Marriage Act No.5 of 1971. F

-Headnote

Subsequent to a divorce, the present Appellant applied to the Dodoma Urban Primary

Court for the division of the matrimonial assets, which consisted of `130 head of

cattle, 28 sheep, 8 goats, 6 donkeys, two houses of corrugated iron sheets and two

thatched G houses'. She was awarded only one corrugated iron house. She now

appeals to this Court against that award.

The trial court held that the animals were not liable for distribution since the

Respondent had inherited them from his father before the marriage, and were thus

the Respondent's personal property. H

Held:

(i) Personal property is liable for distribution in terms of Section 114(3) of

the Law of Marriage Act when such property has been `substantially improved'

during the marriage by the joint efforts of the spouses.

(ii) There was evidence to suggest that some cattle were purchased during

the I subsistence of the marriage with the proceeds of crop sales.

1996 TLR p196

A (iii) Some heads of cattle had been jointly acquired by the spouses as a bride

price following the marriage of their two daughters.

(iv) The Appellant is awarded 10 head of cattle, 2 goats and 6 sheep in

addition to the trial court's award of the house.

(v) The trial court's decision is upheld, but varied to the aforementioned

extent, and the appeal is allowed with costs. B

Case Information

Ordered accordingly.

[zJDz]Judgment

Mwalusanya J:

After a divorce case, the appellant Mrs Anna Kanungha applied at Dodoma Urban C

Primary Court for the division of the matrimonial assets between her and her exhusband

the respondent Mr Andrea Kanungha. The matrimonial assets to be divided

consisted of 130 head of cattle, 28 sheep, 8 goats, 6 donkeys, two houses of corrugated

iron sheets and two thatched houses. The trial court awarded only one house of D

corrugated iron sheets and she was denied the rest. She appealed to Dodoma District

Court which quashed the proceedings allegedly because they were a nullity on the

ground that the assessors did not give their opinions in writing before the judgment

was written. She has now appealed to this court challenging the decisions of the two

courts E below.

The learned resident magistrate was patently wrong. And I have to observe that this is

not the first time the learned resident magistrate has committed such a gross

misinterpretation as regards GN No 2 of 1988. The law as introduced by GN No 2 of

1988 is that after she closes the defendants case the trial magistrate should not record

F the opinions of the assessors as had been the case before. All that the trial

magistrate has to do, is to consult or confer with the assessors as to what they thought

about the case, and this consultation does not have to be reduced to writing. After

agreeing on the G decision, the trial magistrate writes a judgment which includes

the views of the trial magistrate and the assessors. Then the trial magistrate and the

two assessors sign that judgment. If one dissents, a dissenting judgment is written and

signed by the one dissenting. So in this case the trial court properly complied with the

law, as the judgment H is duly signed by the trial magistrate and both assessors.

Now was the trial court correct in dividing the matrimonial assets the way it did? The

appellant has told this court that she is satisfied with the way the houses were

divided. Her concern is about the heads of cattle of which she was deprived. There

was no I dispute at the trial that the assets consisted of 130 head of cattle; 28 sheep, 8

goats and 6 donkeys. The trial court held that the said

1996 TLR p197

MWALUSANYA J

cattle were not liable for distribution because they are the personal property of the A

respondent which he had inherited from his father before he married the appellant.

The trial court was clearly wrong. There are three grounds for saying so. First because

under s 114 (3) of the Law Marriage Act No 5 of 1971 such personal property is liable

for B distribution so long as the same has been substantially improved during

marriage by the joint efforts of the spouses. In the case at hand there can be doubt

that the appellant had helped to improve the cattle by going to graze them in the

bush (as is common with the Wagogo) and by cleaning the kraal. So she is entitled to

a share. C

Secondly, there was evidence at the trial to the effect that some cattle were realised

by buying after the spouses had sold their joint crops. Such contention was not

seriously challenged, as respondent merely stated that he had inherited 30 head of

cattle which D had reproduced. Even if the 30 head of cattle had reproduced, there

was room to accept that some had been bought.

Thirdly, and which is more important is the fact that there was uncontroverted

evidence adduced at the trial to the effect that some heads of cattle were jointly

acquired by the spouses as bride price when their two daughters got married. It is said

one daughter E was married for 20 head of cattle and 20 goats, while the other

daughter was married for 18 head of cattle and 15 goats. So in all there were 38 head

of cattle and 35 goats acquired through brideprice. When I enquired from the

respondent about this revelation, he conceded that it was true. Therefore I am at a

loss as to why the trial court held that F there was no joint heads of cattle liable for

distribution. The trial court clearly erred.

Considering the fact that the spouses are now old, they being allegedly married in

1950, and considering the fact that respondent has some two other younger wives,

with a number of children, I will give the appellant a lesser portion of the cattle. In

the event I G award the appellant 10 head of cattle, two goats and six sheep. The

award of a house given to the appellant by the trial court is endorsed.

In fine the judgment of the District Court is set aside. The decision of the trial court is

H upheld but varied to the extent indicated above. The appeal is allowed with costs.

Order accordingly.

1996 TLR p198

A