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PC - Matri - .Appe - .No - .11 of 2019 Amoni Benedictor Buchwa VS Aisha Shabani Hamis New

This document summarizes a judgment from the High Court of Tanzania regarding an appeal in a matrimonial case. Amon Benedictor Buchwa and Aisha Shabani Hamis lived together for 11 years and had two children, but disputes arose and Aisha filed for divorce, custody, maintenance, and division of property. The trial court did not grant the divorce or distribute all the property. Amon appealed. The High Court considered whether there was a presumption of marriage, Aisha's contributions, her entitlement to property and custody. It found that Aisha was entitled to a share of the property based on her domestic contributions during the marriage.

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0% found this document useful (0 votes)
89 views11 pages

PC - Matri - .Appe - .No - .11 of 2019 Amoni Benedictor Buchwa VS Aisha Shabani Hamis New

This document summarizes a judgment from the High Court of Tanzania regarding an appeal in a matrimonial case. Amon Benedictor Buchwa and Aisha Shabani Hamis lived together for 11 years and had two children, but disputes arose and Aisha filed for divorce, custody, maintenance, and division of property. The trial court did not grant the divorce or distribute all the property. Amon appealed. The High Court considered whether there was a presumption of marriage, Aisha's contributions, her entitlement to property and custody. It found that Aisha was entitled to a share of the property based on her domestic contributions during the marriage.

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© © All Rights Reserved
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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


/
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

8
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

9
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

10
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

11

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