IN THE HIGH COURT OF TANZANIA
IN THE DISTRICT REGISTRY
AT MWANZA
PC. MATRIMONIAL APPEAL NO 11. OF 2019
(Arising from Matrimonial Appeal No. 11 of 2018 at Ilemela District Court, and originating from
Matrimonial Couse No. 586 of 2018 at Ilemela Primary Court)
AMONI BENEDICTOR BUCHWA................................ APPELLANT
VERSUS
AISHA SHABANI HAMIS.........................................RESPONDENT
JUDGMENT
19.12.2019 & 27.2.2020
U. E. Madeha. 3
This is the second appeal which arises from the decision of Ilemela
District Court. Amon Benedictor Buchwa married Aisha Shabani Hamis.
They were blessed with two issues, they lived together for eleven years.
The problems arose in their marriage Aisha Shabani Hamisi petitioned for
the divorce, custody of issues, maintenance and the division of the
matrimonial properties. The trial Court did not distribute the matrimonial
assets because Aisha Shabani Hamis had no contribution in the family
properties. The Court did not grant divorce on the bases that there was no
marriage between the parties, there was no evidence as to whether the
two had lived under the presumption of marriage. On the issue of custody
of children's, the trial Court considered that all two children to remain with
Amon Benedictor Buchwa. Aisha Shabani Hamis was awarded 30% while
Amoni Benedictor Buchwa was awarded 70/% of the house. The District
Court found that those people lived together for eleven years and therefore
deserved to be given a division of matrimonial properties. Amon Benedictor
Buchwa was dissatisfied with the decision of the Di^ijct Court and hence
preferred this appeal. The grounds in this appeal raises the following
issues.
1. Whether there was a presumption of marring.
2. Whether the respondent contributed to the acquisition of matrimonial
properties.
3. Whether the respondent is entitl£d)to the distribution of matrimonial
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properties and to what extent?
4. Whether the respondent is entitled to the custody of children.
5. Whether the:appellant is entitled to the maintenance.
Starting-with the first issue whether there was a presumption of
marriage. The appellant's learned advocate Mr. Aloys Msafiri Henga stated
that, the mere fact that both parties lived together under the same roof
which does not automatically qualify them to be husband and wife, for it is
rebutted. Lack of any witness to testify before the court that they
considered both parties as married couples, they were never considered by
the community around them to have that status of husband and wife.
Thus, it is enough ground to rebut the presumption of marriage as
provided under section 160(1) of the Law of Marriage Act, Cap 29 of 1971.
Amon Benedictor Buchwa went ahead and stated further that they only
lived together under the same roof for the purpose of raising their children
and nothing else. Amon Benedictor Buchwa submitted that although they
had lived together with Aisha Shabani Hamis for more than two years
under the same roof, they did not qualify to be considered as husband and
wife, under the presumption of marriage since they have lived for seven
years without having sex, hence resulted to such presumption being
rebutted. Presumption of marriage is provided under section 160(1) of the
Law of Marriage Act, Cap 29 of 1971, which reads as follows;
(1) "Where it is proved that a man and woman have lived together for two years
or more, in such circumstances as to have acquired the reputation of being
husband and wife, there shall be a rebuttable presumption that they were
dully married."
From the above provision of the law, both parties have agreed that the
period of which the two have lived together is not disputed as they have
lived for more than two years. The only dispute is whether the two had the
reputation of being husband and wife. The appellant claimed that they did
not have that reputation because they had not engaged in sexual activities
for seven years.
Mr. Stephene Charles the learned counsel for the respondent argued
that, it is undeniable that the parties have lived under the same roof for
more than two years as provided under the law, and that the denial of
conjugal right for some period of time is immaterial since the law does not
state what the two shoul<y^doing when sleeping under the same roof
hence there is proof that||iere was *prekimption of marriage between the
parties.
In my opinHsi I think, th ^ js no dispute that the two characters lived
%jit .
togettjff for eleven years and were a marriage couples, then that is a
perfedlfearriacie, so they are known as a marriage couple, assuming that a
woman hacf&een paid for a bride price, therefore, throughout their lives
she was known as a legitimate wife and deserving of divorce.
Coming to whether Aisha Shabani Hamisi contributed to the
acquisition of matrimonial properties. There was further argument that
Aisha shabani Hamis being house wife contribute to the acquisition of the
properties by cooking to the household and fetching water for construction.
Amon Benedictor Buchwa was involved in various activities who sought all
the properties.
The division shall be conducted in relation to the amount of
contribution towards the acquisition of the said property. It is the
submission of Amon Benedictor Buchwa that Asha shabani Hamls failed to
prove her contribution towards the properties as the appellant acquired
them individually without Aisha Shabani Hamis. The appellant cited the
famous case of Bi. Hawa Mohamed Versus Ally Seif (1983) TLR 32.
With regard to third issue based on the issue of distribution of
matrimonial property. The power of the court to divide the matrimonial
assets is derived from section 114 (1) and (2) of the Law of Marriage
Act Cap 29 (R. E 2002) which provides as hereunder: -
(1) 1The court shall have power when granting or subsequent to the
grant o f a decree o f separation or divorce to order the division
between the parties o f any assets acquired by them during the
marriage by their joint efforts or to order the sale o f any such
asset and the division between the parties o f the proceeds o f the
said sale.
(2) In exercising the power conferred by subsection (1) the court shall
have regard:
(a) To customs o f the community to which the parties belong.
(b)To extend the contributions made.by each party in money,
property or work towards the acquiring o f the assets.
(c) To any debts owing by either party which were contributed for
theirjoint benefit and
(d) To the needs o f the infant children, if any, in the marriagd'.
"V i
In the case of Cl^ophas M. Matibaro Versus Sophia Washusa,
Civil Application No. 13 of 2011 Court of Appeal of Tanzania, it was made
clear that, there must be a link between the accumulations of wealth and
the responsibility of the couple during such accumulation. So, the
matrimonial assets for distribution should be assets acquired in the course
of the marriage by both parties.
The power of the court to divide the matrimonial assets under section
114 (1) of the Law of Marriage Act Cap 29 (R. E 2002) can only be invoked
when the following conditions exist:
(i) "When the court has granted or is granted a decree o f divorce
or separation, and
(ii) When there are matrimonial or family assets which were
acquired by the parties during the marriage and
(Hi) When the acquisition o f such assets was brought about by the
joint efforts o f the parties".
In the case of Bi. Hawa Mohamed Versus Aiiy Sefu of 1983 TLR
33, the concept of separate ownership of properties by spouses was
discussed in relation to the Law of Marriage Act (supra). According to
this case, the concept is recognized under section 58 and 60 of the Law
of Marriage Act Cap 29 (R. E 2002). In this case, i.e. Bi. Hawa
Mohamed Versus Ally Seif, it was held that:
(i) 'Since the welfare o f the family is an essential component of
Economic Activities, it is proper to consider the contribution o f a
spouse to the welfare o f the family as a contribution to the
acquisition o f matrimonial or family assets".
(ii) The joint effort and work towards the acquiring o f the assets
have to construe as a joint effort for domestic effort o f work of
husband and wife."
From the record of the trial court and as it became clear that, Aisha
Shabani Hamis was a house wife and her job was to look after her children,
do the households and Amon Benedictor Buchwa was involved in various
activities and was the one who sought all the properties. Accordingly,
section 114 (2) of the Law of Marriage Act Cap 29 (R. E 2002), empowers
the court to have regard in the division of matrimonial property:
(a) "... The extent o f the contributions made by a party in money,
property or work towards the acquiring o f the assets"
(b) "... The needs o f the infant children if any o f the marriage and
subject to those considerations, shall include towards equality
o f division the Law recognized in terms o f money, property or
work", section 4 (b), the law o f Marriage Act Cap 29 (R. E
This court is not in doubt that Aisha Shabani Hamis contribution
towards the acquisition of matrimonial assets in terms of her domestic
work which include bearing and rearing of children, making the home
comfortable for Amon Benedictor Buchwa and the issues plus her domestic
duties. Even if Amon Benedictor Buchwa engaged himself in various
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activities, Aisha Shabani Hamis would have still been entitled to the
matrimonial property by virtue of her contribution through domestic work.
The case of Bibie Maridi Versus Mohammed Ibrahim (1988)
TLR... provide further guidance on the issue of distribution of matrimonial
property. It was in this case held that with regard to the issue of
contribution, there must be evidence to show the extent of contribution
before making an order for distribution of matrimonial assets. In this
respect, the performance of the domestic duties also amounts to
contribution towards such acquisition-
I am of the view that, each of the spouses made a contribution
towards the acquisition of the matrimonial property which need not be
financial. In the case of Kagga Versus Kagga, High Court Divorce Case
No. 11 of 2005 Uganda, Mqwangusya 1 Held that:
"Our courts have established a principle which recognizes each
spouse's contribution to the acquisition o f property and this
contribution may be direct or monetary. When distributing the
property of such divorced couple, it is immaterial that one of the
spouses was not financially endowed as the others as this case
clearly show that while the first respondent was the financier
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behind all the wealth acquired. In this case, the contribution of
the petitioner is not less important than that made by the
respondent".
Based on the foregoing, I am inclined to apply the same principles to
the contribution of assets. Consequently, I hereby uphold the decision of
Ilemela District Court and realized that Amon Benedictor Buchwa to be paid
70% and Aisha Shabani Hamis to be given 30% of the house.
For the issue of custody of children, access and the maintenance of
Children, all these issues should be determined by the Juvenile Court.
Parties to the suit are thus urged to ftle the case concerning the issue of
custody/access and the issue of maintenance in the Juvenile Court. For the
time being, all two issues/children are required to remain with their mother
Aisha shabani Hamis and Amon Benedictor Buchwa should provide all basic
needs to them while waiting the determination of the issue of custody and
maintenance when referred to the Juvenile Courts by the either of the
parties in the best interest of the children.
In the results, as indicated herein above. Amon Benedictor Buchwa to
be paid 70% and Aisha Shabani Hamisi to be given 30% of the house. As
to custody of children and maintenance, let this matter be referred to the
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Juvenile Courts for its determination as above indicated. In the meantime,
Amon Benedictor Buchwa shall be responsible for maintenance and Aisha
Shabani Hamis shall take custody while Amon Benedictor Buchwa shall take
access of the children. Each party to bear its own costs. It is so ordered.
Appeal dismissed. Order accordingly.
DATED and DELIVERED at MWANZA this 2 1 ^ ^ $ February 2020.
ffr j jv 'r >, ' •• l i M ................................. ..
V** i - c
1 A /-U. E. Madeha
Judge
-27/ 2/2020
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