OMARI CHIKAMBA v FATUMA MOHAMED MALUNGA 1989 TLR 39 (HC)

 OMARI CHIKAMBA v FATUMA MOHAMED MALUNGA 1989 TLR 39 (HC)

Court High Court of Tanzania- Mtwara

Judge Kazimoto J

7 April, 1989 E

Flynote

Family Law - Marriage - Islamic law - Ground for dissolution - Irreparably breaking

down.

Islamic Law - Gift - Effect of gift on division of matrimonial property.

Family Law - Division of matrimonial property - Whether misconduct of spouse and

mismanagement of property are factors to be considered. F

-Headnote

The appellant and the respondent were husband and wife who were married

according to Islamic Law. During the subsistence of their marriage the appellant and

the respondent G had acquired four houses, a coconut farm and a stock of animals.

Matrimonial problems developed and the marriage was dissolved by an Urban

Primary Court. The respondent was proved to have been living an adulterous life.

Trial Court found that the properties were jointly acquired through their joint efforts

and awarded two houses to H the appellant and two houses to the respondent. The

farm and stock were awarded to the appellant while the respondent was awarded

Tshs.10,000/= as her share of the farm and animals. Respondent appealed to the

District Court which, inter alia, found that one of the houses was given as a gift to the

respondent's mother and should not have been a I subject of division.

1989 TLR p40

KAZIMOTO J

The appellant appealed to the High Court arguing, inter alia, respondent's alleged A

misconduct and mismanagement of property to be crucial in distribution of

matrimonial property.

Held: (i) Where during the subsistence of a marriage either spouse or both spouses

give B matrimonial property to another as a gift,it is presumed that such property

has been permanently given to that other person unless there is evidence to the

contrary;

(ii) the house given to the respondent's mother was not a matrimonial

property and should not have been subjected to these proceedings. The District Court

was right C to exclude it from the list of matrimonial property;

(iii) although evidence in this case shows that respondent was of loose and

immoral character both Islamic law and section ll4(2)(a) of the Law of Marriage Act,

D l97l provide that a divorced woman is entitled to, and does not forfeit her share, in

the division of matrimonial property because of immoral or loose character;

(iv) misconduct by a spouse touching to the management of matrimonial

property is a relevant factor when the issue of division of matrimonial property upon

dissolution of E marriage arises. The District Court had rightly awarded the

respondent one house out of three.

Case Information

Appeal dismissed.

[zJDz]Judgment

Kazimoto, J.: The appellant and the respondent were husband and wife and were F

married according to Islamic law. Matrimonial problems having developed the

marriage was dissolved by the Urban Primary Court. There was conclusive evidence

that the marriage had been irreparably broken down. The respondent has been

proved to have been living an adulterous life. The decision to dissolve the marriage

was not challenged G by the parties.

During the subsistence of their marriage the appellant and the respondent had

acquired four houses, a coconut farm planted with 250 trees and a stock of animals.

The trial H court found on the evidence that these properties were jointly acquired

through their joint efforts and awarded two houses to the appellant and two houses to

the respondent, the farm and stock were awarded to the appellant while the

respondent was awarded shs.10,000/= as her share for the farm and animals. The

respondent appealed to the I District Court which partly allowed the appeal.

Although the District Court found that there were four houses which were acquired

during their

1989 TLR p41

KAZIMOTO J

marriage it was satisfied that one house was given as a gift to the respondent's mother

A and should not have been a subject of division. With respect I agree with the

decision of the District Court. Where during the subsistence of a marriage either

spouse or both spouses give a matrimonial property to another person as a gift, it is

presumed that such property has been permanently given to that other person unless

there is evidence to the B contrary. In this case there is no such contrary evidence.

The house given to the respondent's mother was not a matrimonial property and

should not have been subjected to these proceedings. The District Court was right to

exclude it from the list of matrimonial property. Consequently the District Court

awarded two houses to the C appellant together with the coconut farm including

stock and gave the respondent one house and ordered the appellant to compensate the

respondent shs.30,000/= as her lawful share of the farm and stock. The appellant has

been aggrieved by this decision and hence this appeal. D

The appellant has submitted three grounds of appeal which are:

l. That, the first appellate court was wrong in awarding shs.30,000/= more

to the respondent as additional amount that would drive her to an equal share of

jointly E acquired matrimonial assets, when there was sufficient evidence to prove

that the respondent had arbitrarily shared out to herself some of the assets such as a

motor cycle, a pedal cycle etc ... even before the breakdown of a marriage. F

2. Having regard to the case cited, the first appellate magistrate ought to

have found that property that respondent had encroached upon before the dissolution

of marriage was enough and ought not to add more property on top of it. G

3. That the first appellate magistrate did not have in mind the fact that

where a jointly owned property is to be developed, he/she who in the first instance

shows unfaithfulness towards it is always to lose. H

This appeal has raised two important legal issues. The first to be considered and

decided is whether the respondent's alleged misconduct was in law a relevant factor

for the purpose of distribution of matrimonial assets and secondly whether a spouse I

1989 TLR p42

KAZIMOTO J

who mismanages matrimonial property is entitled to equality of division of assets

upon A dissolution of marriage.

Both courts below have dealt at length with the custom of the parties. The trial court

however did not say whether a moslem woman who is divorced due to misconduct is

B entitled, under Muslim custom, to anything. On appeal the learned senior resident

magistrate stated as follows:

What share should a divorced Sunni Moslem woman or man get from the

matrimonial assets? I could not lay a hand to a legal text - book on Islamic law either.

I shall therefore C assume that the two gentlemen assessors, themselves being

moslem, took note of this issue when they gave their views. The assessors seem to

agree that a woman is entitled to something from her former husband if she did not

misbehave in the management of the matrimonial assets otherwise she forfeits that

right. D

In a nutshell the learned magistrate stated that a moslem woman who misbehaves in

the management of matrimonial assets is not entitled to such assets. E

In a recently decided case of Salim Wendo v Tausi Wendo and Alfred Kasililwa High

Court (DSM Registry) Matrimonial Civil Case No. 8 of l987 (unreported) Mnzavas,

J.K. had this to say:

The parties are Muslims and as such they belong to customs of the Muslim

Community. F Under Islamic custom a divorced wife is entitled to a parting gift

(Kithumn) from her former husband.

The facts in that case are the same as in this case. The woman was, as the respondent

in G this appeal, of loose and immoral character. In that case she was given money to

start poultry business and she failed to manage it. The Hon. J.K. is a Moslem himself

and I venture to think that when he said a divorced Muslim woman who misconducts

herself is H entitled to a parting gift he is speaking about the customs to which he

belongs and has personal knowledge of such custom. It is therefore clear to me that

under section 114(2)(a) of the Law of Marriage Act l97l a divorced Muslim woman is

entitled to, and does not forfeit her share in, the division of matrimonial assets. I

1989 TLR p43

KAZIMOTO J

I now come to the first issue in this appeal. In this case there was evidence that the A

respondent has been guilty of gross misconduct. She not only committed acts of

adultery with the sewing machine operator as shown by the exhibits tendered in

court, which in themselves would not, in my view have affected her share in the

division of property, but also she mismanaged the tailoring business which she had

completely wrecked down. B Besides that she built a house clandestinely. Thirdly

while the appellant was away in Dar es Salaam the respondent disposed by sale three

mattresses, a bed, a refrigerator, three sewing machines, a motor cycle and so on.

There was therefore cogent evidence to prove that the respondent had grossly

misconducted herself in the management of the C matrimonial property. I would

hold accordingly that a misconduct by a spouse touching to the management of

matrimonial property is a relevant factor when the issue of division of matrimonial

property upon dissolution of marriage arises. D

The second issue - whether a spouse who mismanages matrimonial property is

entitled to equal division of such assets - must be resolved in the negative. The

District Court had rightly awarded the respondent one house out of three. The

appellant did not seem to challenge this in his memorandum of appeal. He contended

that the award of E shs.30,000/= by the District Court to the respondent would have

put the respondent to equal division of the matrimonial assets. While it was proved

that the respondent had sold the items stated above it was not stated how much

money was realised. Nor was the value of the three houses stated by either party to

this court. The value of shamba F was also not stated. The learned magistrate has

stated that the current market value of goat was shs.l,000/=. And with 30 goats

became up to shs.30,000/=. In the absence of value of the matrimonial property I

cannot say that the award of shs.30,000/= to the G respondent would make her get

more than or equal to half of the matrimonial property. Having considered the

principles which the senior resident magistrate had used in arriving at shs.30,000/= I

cannot say that he erred in this. Taking into account all factors, including the

nefarious conduct of the respondent, I am satisfied that the award of H shs.30,000/=

would not put the respondent on equal footing as regards division of matrimonial

property. The decision of the District Court is upheld. I dismiss the appeal with costs.

I Appeal dismissed.

1989 TLR p44

A