The Borrower defaulted on the loan; consequently the Mortgagee exercised its enforcement rights under the law to sell the mortgaged property in order to recover the outstanding amount. 3 … 25, Vol. While a caveat is no longer a necessary requirement under the law, it forms an additional layer of protection for the aggrieved spouse. 5 of 1971CAP 29 of the Laws of Tanzania (R.E 2002A) (1983)TLR 32 In this case, the appellant and respondent were wife and husband respectively until the dissolution of their marriage by a court decree of the Primary Court … Conversion of marriages (1) A marriage contracted in Tanzania may be converted– (a) from monogamous to potentially polygamous; or So in my respectful opinion the decision in that case can hardly be helpful or persuasive”. A. Rwezaura Introduction The decision of Mapigano J., in the case of Zawadi Abdallah v. Ibrahim Iddi1 has brought into sharp focus two conflicting legal interpretations of section 1 14 of the Law of Marriage Act 1971. I think I can treat the background as strongly indicating that our Legislature adopted the ideas and philosophy contained in that report. ASSESSMENT OF DIVORCE ON CHILD DEVELOPMENT IN TANZANIA: A CASE STUDY OF KINONDONI MUNICIPALITY SHANNY. Surety’s obligations in a criminal case See for example Iddi Kungunya VS. Ali Mpate (1967) HCD 49. Spouses should be more vigilant before mortgaging their matrimonial properties to avoid the possibility of losing them in event where they default payments. They would advance several reasons to back up their viewpoint. Section 2 of the Marriage, Divorce and Family Relations Act defines a court as follows It is apparent that the Act seeks to liberate married women from such exploitation and oppression by reducing the traditional inequality between them and their husbands in so far as their respective domestic rights and duties are concerned. Therefore the fact that you are not married to your child’s father cannot outweigh your right of custody. Furthermore, marriage as an institution is a relationship where parties have to enter out of their own free will. 28/08) The HIV and AIDS (Prevention and Control) Act, 2008 (Act No. It is the last sentence of paragraph 19 and it merely says that: “The proposed law should provide expressly that, either spouse may own his or her own separate, property which he or she owned before, or acquired. Bankruptcy Ordinance 5. Business Licensing Act, 1972 6. Business Name (Registration) (Cap 213) 7. I will give my reasons. The decision of the court was manifestly predicated upon the provisions of the English Matrimonial Causes Act, 1973, which makes explicit provisions to the effect that in adjusting property rights under that act, the contribution made by each of the parties to the welfare of the family, is a relevant consideration to be taken into account. The current Act allows girls to marry at the age of fourteen with the consent of the court, and from the age of fifteen with the consent of their parents. I hold as he did that such domestic services are not to be taken into consideration when the court is exercising its powers under the section. In such a situation the court has to be guided by the established rules of construction of statutes. They were of the view that the mortgagee was correct to disburse the loan believing that there was no … 2002], and, as such, the Appellant cannot challenge the affidavit as she was not the one who swore it. But the liberal school might put forth the line that the law should be innovative and responsive to societal aspirations. 629 by CAIRNS, LJ” …………….. Moreover where a former husband is ordered to maintain his former wife after divorce or separation, such an order amounts to a revenue producing asset vested in the wife within the scope of the second category of family assets as defined under paragraph 1064 of HALSBURY`S LAWS OF ENGLAND cited earlier on, and has to be taken into account in the division of available matrimonial or family assets. MATRIMONIAL CAUSES ACT An Act to make provisions for matrimonial causes. The appellant and respondent were married according to Islamic rites in Mombasa, Kenya, sometime in 1971. this Act and whether contracted in Tanzania or elsewhere; "matrimonial home" means the building or part of a building in which the husband and wife ordinarily reside together and includes– (a) where a building and its curtilage are occupied for residential purposes only, that curtilage and any outbuildings thereon; and (b) where a building is on or occupied in conjunction with … The Court of Appeal stated that the Appellant is barred by the principle of estoppel articulated under section 123 of the Evidence Act [Cap 6 R.E. Authorised and regulated by the Solicitors Regulation Authority. JURISDICTION OF MATRIMONIAL CASES. In this case, the appellant to the Dodoma Urban Primary Court for the division of matrimonial assets, which were acquired by the husband before their marriage but substantially improved through their joint efforts. 15 Full PDFs related to this paper. We hereafter demonstrate what we mean. 324, as cited by the Appellant. As a matter of fact, no complaint is made against him in respect of performance of domestic duties towards his former wife. The White Paper has only a few words about the subject. The appellant Bi Hawa Mohamed and Ally Seifu were wife and husband respectively until the dissolution of their marriage by court decree of the Primary Court of Ilala District, at Kariakoo, Dar es Salaam in 1980. DLHT found in favour of the Appellant. in Tanzania, be presumed, unless the contrary is proved, to be polygamous or potentially polygamous; and (b) in any other case, be presumed to be monogamous, unless the contrary is proved. On the 11th May 2020, the Court of Appeal issued a judgment in the case of Hadija Issa Arerary v. Tanzania Postal Bank. The filing of an application by the Appellant before the DLHT was therefore a calculated move to deprive the Mortgagee of what it was supposed to recover. “First, I think that the broad view is inextricably linked with other matters. Secondly, the squandering of that money by the appellant when weighed against her contribution, can be regarded as a matrimonial misconduct which reduced to nothing her contribution towards the welfare of the family and the consequential acquisition of matrimonial or the family assets. Would it be not be to encroach on the province of the Legislature? On the facts of this case, the appellants was paid a sum of Shs.18,000/= apparently when the spouses were still resident in Mombasa. Under this rule, the court, in looking for the true meaning of ambiguous, statutory provisions, is guided by the defect or mischief which the statute was enacted to rectify or cure. 5 OF 2004) [2006] TZHC 15; (26 March 2006) Haruna Omar Mbonde & Others vs Shabani Haruna Kapelele & Others (Misc. 22. Within the field in which rights and duties are specified. Summary of Facts; Analysis and Decision; Ms. Rebecca Gyumi, the founder and director of Children’s Rights Organisation, a local charity promoting girls’ rights, brought an action before the High Court of Tanzania challenging the constitutionality of Sections 13 and 17 of the Law of Marriage Act of Tanzania (Cap. © Clyde & Co LLP. THE LAW OF MARRIAGE (MATRIMONIAL PROCEEDINGS)RULES, 1971. Certainly it was not part of our own law before the enactment of the Law of Marriage Act. The fundamental question now is whether this view of the two courts below is erroneous. And to be sure, there is no provision in the Law of Marriage Act which says so in terms. ... S.44 (3) of the Matrimonial Causes Act provides that; The court shall not grant a decree of dissolution of marriage without receiving evidence by the petitioner in support of the petition. The Act borrows heavily from the draft bill prepared by the said Commission – Appendix VIII to the report. with the matrimonial home. “I am not of course saying that that is good law. IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM (CORAM: OTHMAN, C.l., MASSATI, l.A., And MUGASHA, l.A.) CIVIL APPEAL NO. We have, with respect, quoted Mapigano, J. at length because he appears to deal adequately with the arguments in favour of the opposite views of the High Court and because we are satisfied that the narrow view is wrong and the broad view is correct. In the suit, the Appellant (who was the Plaintiff in the High Court) claimed for special and general damages arising from what the Appellant described as the Respondents' acts of negligence in … As the respondent (former husband) was frequently away from home while working as a Seaman, it is obvious that the main beneficiary of such “effort” or “work” was not the respondent but the appellant herself who lived in that house. It is apparent that the two sections deal with different matters. He argued that since traditionally the looking after the household and caring for the children is the occupation and responsibility of a wife, just as the feeding and clothing the family is the occupation and responsibility of the husband, then that should not be considered as a contribution or joint effort. We do not think so. As explained by Justice Lewis Makame: There is a school of thought which says that domestic services a housewife renders do not count when it comes to acquisition, and therefore the … A statutory marriage is one governed by the Matrimonial Causes Act ('the Act') 1 ... (FCT) High Court showed that over 2,000 divorce cases were filed between the year 2019 and February 2020, with an average of 30 cases being entertained every day, even as the Court is trying hard to reconcile couples through arbitration panels. When the acquisition of such assets was brought about by the joint efforts of the parties. The question which I am called upon to answer in this case is which one of these views is correct. Act No.11 of Parliament of 1995 2. I certify that this is a true copy of the original. The Respondents also distinguished the case of Tanzania Electric Supply Company Limited (TANESCO) v. Independent Power Tanzania Ltd (IPTL), [2000] T.L.R. High Court: Corruption and Economic Crimes Division, BI HAWA MOHAMED v ALLY SEFU () [1983] TZCA 12; (29 November 1983); 1983 TLR 32 (TZCA), Sofia Hamad Tabiada vs Said Ally Mchanama (Civil Appeal No.90 of 2019) [2020] TZHC 650; (04 March 2020), Husseim Mohamed Shela vs Neema Ally Ugomba (PC. In subsequent proceedings, seeking the division of matrimonial assets, the Primary Court held in effect that Bi Hawa Mohamed was not entitled to any share in the matrimonial assets as, to use the words of one of the assessors, “She was only a mere wife, and the house was bought by the husband with his own money”. That was in the case of Rukia Diwani Konzi VS. Abdallah Issa Kihenya – Matrimonial Cause No. Primary Courts on the other hand, have been held to have no powers of handling matrimonial disputes based on civil … Non-matrimonial property refers to property owned by one or other of the parties by definition and therefore it runs contrary to the Act to disregard it. PART I Jurisdiction 1.Institution of matrimonial cause proceedings only under this Act (1) After the commencement of this Act, a matrimonial cause shall not be instituted otherwise than under this Act. Nairobi Legal Tech and Innovation Week 2019 July 22, 2019 The Judicial Performance Evaluation Template July 24, … A mortgagor has a legal obligation to disclose details of his/her spouse and to seek spousal consent before creating a mortgage over matrimonial property. 3 of 1993. Stated the learned judge: “There is a school of thought which says that, domestic services a housewife renders do not, count when it comes to acquisition, and therefore, the subsequent possible division, of matrimonial, I find this view too narrow and conservative and I, must confess my inability to subscribe to it. To my knowledge not much has been said about it in this country and there is a paucity of judicial pronouncement on the matter. With regard to the principle stated under paragraph (b) of sub-section 2 of section 114, it is evident that the extent of the appellant’s contribution is indicated by her “efforts” or “work” in looking after the matrimonial home as against the respondent`s performance of his own part of domestic obligations towards the appellant. We find no reason to interfere with this payment. We are aware that there are two schools of thought which currently contend in the High Court on this issue. In this regard attention should be called to the fact that the Act is based on the work of the Kenya Commission on the Law of Marriage and Divorce which was headed by Spry J. IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM (CORAM: OTHMAN, C.l., MASSATI, l.A., And MUGASHA, l.A.) CIVIL APPEAL NO. Of course this does not mean that her domestic “effort” or “work” was worthless. Sitting in this Court at this place he felt himself prepared and able to say that the domestic services that a wife renders count. Furthermore, the respondent was a Seaman and his work involved traveling abroad for many months. Between 1957and 1977 cases reported from the High Court of Tanzania and the East African Court of Appeal appeared in East Africa Law Reports. Having reviewed various cases in which the issue had arisen it was clear that the sharing principle (of entitlement to a share of property as a result of the marriage rather than to meet a party’s needs) could apply to non-matrimonial property but rarely would, with no reported case being highlighted where non-matrimonial property had been shared other than to meet needs. “Further, I think perhaps I should read a short passage from the decision of Parks B in Egerton VS. Brownlow (1953) 4 HLCL, a passage which has been frequently quoted with approval by many judges including Sir Charles Newbold: “It is the province of the statesman, and not the, Lawyer, to discuss, and of the Legislature to, determine, what is best for the public good and, to provide by proper enactments. I share his opinion that under section 114 the housework of a wife and looking after the children are not to be equated with the husband’s work for the purpose of evaluating contributions to marital property. In its decision, the High Court held that the Appellant failed to establish that she was the spouse of the Mortgagor on account of the fact that the mortgaged property was registered in the sole name of the Mortgagor who had also sworn an affidavit that, at the time of creating the mortgage, he was not married and was the sole owner of the mortgaged property. PRICE at MARINGO BOOKS: US $ 15 OR Tsh.20,000/= (Tanzania)---SUBSIDIARY LEGISLATION to the Gazette of the United Republic of Tanzania, No. 3 of 1993 wherein judgment was entered by admission on 27/5/93. unreported) in which the holding in VALAMBHIA’s case was followed. In the premises, by reason of s. 3 of the Marriage, Divorce and Family Relations Act, the marriage herein will still be governed by the law … Previous Post Marriage (Matrimonial Proceedings) rules 2018. The Division of Matrimonial Property in Tanzania - Volume 28 Issue 3. The Mortgagee being aggrieved by DLHT findings successfully appealed to the High Court of Tanzania (the High Court). Spouses who do not hold a joint registration on the title deeds of their matrimonial properties should undertake to either obtain joint registration or to file a caveat over the property in order to protect themselves from the unfortunate event where their spouse takes a page from Mr. Pangani’s book and fails to disclose their matrimonial status. The money was to be used by her to set up some family business. I am not for instance gainsaying the fact that one of the ills of the breakdown of marriage is the economic hardship that a woman may have to suffer, where, as is common in Tanzania, the woman has not acquired any property, and I think, therefore, that there is much to commend the liberal viewpoint to serious reflection, and consideration. The jurisdiction to determine all matrimonial disputes is vested in all the courts in Tanzania by Section 76 of the Law of Marriage Act, 4 It is also paramount important to know before ending of matrimonial relationships. As we understand this Act, its scheme is to preserve the sanctity of the institution of marriage, which is intended to last for life. So this leaves only the sum of Shs.3,000/= already paid and received in accordance with the religious customs of the parties. Received Laws. “ I apprehend that to follow the broad view would be to give recognition to the concept of community of property between the husband and the wife – communio bonorum – and perhaps with its. (An exposé on the Hadija Arerary vs. Tanzania Postal Bank case) Big relief to banking institutions in Tanzania regarding spousal consent when undertaking a mortgage for a matrimonial property. We are satisfied that such religious practice, which was undisputed, can properly be construed as a “custom of the community to which the parties belong”. Mrs. Hadija Issa Arerary (the Appellant) challenged the sale of the mortgaged property at the District Land and Housing Tribunal (the DLHT) alleging, among other things, that she is the legal wife of the Mortgagor and her consent was not sought and obtained before creating a mortgage on their matrimonial property as is required by law. Mr. R. C. Kesaria, learned Advocate, appeared on legal aid for the appellant. 40 along Swahili/Mhoro Streets and is the subject of this case. 18.] Civil Application No. 11 of 2019) [2020] 1; (27 February 2020), Salma Mbaruku Kassim vs Selemani Juma Omari (Pc Civil Appeal No.41 Of 2020) [2020] TZHC 4162; (08 December 2020). I would embrace that principle. Findings further revealed that the figure is higher … Moreover the couple had no children for her to take care of. [2] Under the German colonial era, … That throws up a question of judicial policy. Clyde & Co LLP is a limited liability partnership registered in England and Wales. (1) The court shall have power, when, granting or subsequent to the grant of a decree, of separation or divorce, to order the division, between the parties of any assets acquired by, them during the marriage by their joint efforts, or to order the sale of any such asset and the, division between the parties of the proceeds. 11. In our considered view, the terms `matrimonial assets` means the same thing as what is otherwise described as `family assets`. Finally, the Court of Appeal dismissed the appeal, holding that the Mortgagee was correct to disburse the loan believing that there was no third party interest on the mortgaged property hence the mortgage was valid. Such. That the Respondenthad no right of appeal and the Court was not competent to entertain it but the High Court went ahead and heard the parties on appeal. Tanzania Postal Bank (the Mortgagee) advanced a loan to Mr. Mwanuke (the Borrower) secured by a third-party mortgage on the title deed of Mr. Pangani (the Mortgagor). What is the significance of these facts? P.O. At the risk of being deemed a conservative, though I would like to believe that I am not, I must say that on the view that I take of the law I feel compelled to pronounce that the decision of the learned magistrate is, in the final analysis, sound. The first is, where rights and duties of a member of the community are determined by legislation; and in that field the circumscribing limits are the doctrines of equity and. be divided into two parties (1) those which are of a capital nature, such as the matrimonial home and the furniture in it (2) those which are of a revenue – producing nature such as the earning power of husband and wife”. The respondent had a house in Mombasa and they used it as the matrimonial home. Norah Nikkie Cathcart Kay and Murray Henderson, HC/PR Matrimonial Cause No 11 of 2015, unreported. MATRIMONIAL PROPERTY IN TANZANIA One of the most important cases in which the issue arose was Rukia Diwani Konzi v Abdallah Kihenya in the High Court in Dar es Salaam, I977. M. MALINDA A DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SOCIAL WORK OF THE OPEN UNIVERSITY OF TANZANIA 2017 . Matrimonial Appeal No. by legislation a judge’s duty is to apply and enforce the legislation and, save as regards subordinate legislation, he cannot challenge the validity or effectiveness of the legislation”. 113 of 2015) in the High Court of Tanzania, Commercial Division (the High Court) against the Respondents. She however failed to establish any business and the money cannot be accounted for. Act No. Conduct must be taken into account because a spouse cannot be allowed to flitter away the assets by extravagant living or reckless speculation and then to claim as great a share of what is left as he would have been entitled to if he had behaved reasonably”. This Article explores the unique legal issues surrounding polygamous marriage and divorce in mainland Tanzania, and submits that the Law of Marriage Act of 1971 (LMA) should be amended to include a provision that governs co-wives’ property interests in the case of divorce. “But be it noted that in this respect our statutory Law compares unfavourably with the English Law. What I am saying is that the broad view does not comport with the history of the legislation and that the other provisions of the Act would make little sense if that view is adopted. Next Post The Judicial Performance Evaluation Template. by reason of that vital contribution to the family life. Matrimonial Proceedings Rules_ Amended 20_11_17 (6) Sharing is caring! 10 of 1980 (unreported), Mapigano, J. referred to these two schools of thought by stating: “There are those who maintain that under section 114 the term joint effort is limited to direct contribution by a spouse by way of money, property and work, to the acquisition of the asset in question and that housekeeping and raising the children count for nothing. support the school of thought referred to and is, in my view, capable of accommodating a more. “As shown, in this case the learned magistrate expressed and followed the narrow interpretation. The family assets can. You may, if you prefer, describe the two constructions as narrow and broad, respectively. With regard to the fear that the broad view might result in a wife being “allowed to benefit from a marriage which she has wrecked” we think, with respect, that it is misguided because what is in issue is the wife`s contribution or efforts towards the acquisition of matrimonial or family assets, and not her contribution towards the breakdown of the marriage. Tanzania’s Marriage Act of 1971 sets the minimum age at 18 for boys and 15 for girls with parental consent. A. and which is comprised in the Commission’s report of August, 1968. https://sheriatz.blogspot.com/2014/08/law-of-marriage-case-laws.html Download Case . Commission of Tanzania Act, 1980 Regional Tours were undertaken by the members of the Committee as well as the Commission itself. In the final analysis therefore, this appeal fails and we hereby dismiss it. The Court of Appeal further held that the Mortgagor is required to swear an affidavit with regards to his marital status and what was crucial was the content of the affidavit. The correct approach is that husband and wife, in performing their domestic duties are to be treated as working not only for their current needs but also for their future needs. the indefinable but real customs and needs of the community ……………………. Lenders should ensure that they obtain affidavits and take reasonable steps to verify the matrimonial status of mortgagors. Child Development in Tanzania: A Case Study of Kinondoni Municipality”, in ... marriage issues; religious leaders should play a big role on it. One, there would be in many cases the question whether the matter is to be decided with reference to the matrimonial differences which may in fact have made it necessary to consider the matter – in the light of the principle that no one should be allowed to benefit from his own wrong. [1970 No. Is your business prepared for climate change? Abood Saleh Abood the Court of Appeal of Tanzania dismissed an application, by non-divorcing co-wife, for review of the court decision awarding forty percent share of the matrimonial … Was he wrong? MATRIMONIAL CASES. It is the appellant wife`s contention that her efforts in performing her domestic duties had the effect of placing the respondent husband in a financial position to buy the house in question. The point made that the broad approach to the issue presupposes the existence of common ownership of matrimonial or family assets contrary to the concept of separate ownership recognized under sections 58 and 60 is not correct since the issue of division of matrimonial or family assets arises only when the Court is granting or has granted a decree of separation or divorce but not otherwise. It also permits both girls and boys to marry at 14 with a court’s permission. The first important point of law for consideration in this case is what constitutes matrimonial assets for purposes of section 114. This section empowers courts to order the division of matrimo- The Mortgagee argued that a caveat must be filed to protect the interests of a third party over the mortgaged property. Private-International-Law-Notes The first important point of law for consideration in this case is what constitutes matrimonial assets for purposes of section 114. Although it is correct to say that under English Law, the joint efforts or contributions of spouses is considered directly in relation to the welfare of the family rather than directly in relation to the acquisition of matrimonial or family assets, we do not see any difference between the effect of English and our Law on this issue since the welfare of the family is an essential component of the economic activities of a family man or woman. The record shows that she received the money in court. In the pre-colonial era, approximately 120 tribes determined land tenure arrangements for their members. Download PDF. A. Ramuhovhi and Another v The President of the Republic of South Africa and (Case … Spouses should be more vigilant before mortgaging their matrimonial properties to avoid the possibility of losing them in event where they default payments. 5 Full PDFs related to this paper. She said: These applications arise from Civil Case No. One such normal rule of construction of ambiguous provisions is the MISCHIEF RULE. In 1974, the respondent purchased a house in Dar es Salaam with his own money.

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