IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR
(CORAM; MAKAMe, J.A., RAMADHANI, J. A., And MROSO, J.A.)
CIVIL AFFEAL NO. 10 OF 2001 BETWEEN
GHARIB ABDALLAH JUMA .......... APPELLANT
AND
KAY MLINGA ....... RESPONDENT
(Appeal from the decision of the High Court of Zanzibar at Zanzibar)
(Lawan,J.)
dated the 5th day of April, 2000 in
Civil Case No. 22 of 1999 JUDGMENT
MROSO, J.A.:
The appellant, a Tanzanian from Zanzibar, lived in Denmark. On 24th October, 1984 he married the respondent, a Tanzanian from the Mainland, in Denmark. Apparently, Denmark was one of those countries in Europe which practised (and perhaps still practises) the system of community of property to married people. So, in order to avoid the full effect of that system the appellant decided to enter into a marriage settlement with the respondent two days before marriage. At that time he owned a flat in Copenhagen and he wanted to exclude it from matrimonial property.
A translation into English of the marriage settlement supplied by the Royal Danish Embassy in Dar es Salaam reads as under:-
"We the undersigned, ABDULLA JUMA GHARIB, born 9/7/1936 and joint undersigned KAY MLINGA; born 11/6/1948, both living at Manstalsgade 20, mezz., tv., 2100 Copenhagen 0, hereby as consequence of our approaching marriage enter into the following
MARRIAGE SETTLEMENT
That flat No. 3 of Registration No. 3194 Udenbys Klaedebo Kvarter, situated at Manstalsgade 20, mezz., tv., 2100 Copenhagen, shall belong to me, Abdulla Juma Gharib, as separate property, which separate property shall furthermore include all proceeds from the flat and what may be gained from it.
Besides that there shall be complete community of property between us.
The present marriage settlement will be registered at my Abdulla Juma Gharib's venue in Copenhagen and at the flat No. 3 of Reg. No. 3194 Udenbys Klaedebo Kvarter.
Copenhagen, the 22nd October, 1984.
Signed Signed
Abdulla Juma Gharib Kay Mlinga''
According to the appellant, he had other properties before marriage (and the marriage settlement) but those properties were outside Denmark. Those were a house in Mwembeladu, Zanzibar which he said he inherited from his mother. He had another house at Mwanakwerekwe, also in Zanzibar, which he ]said he had bought and built to roof stage. Apparently, he had another house at Mfereji wa Maringo in Zanzibar, which he had built partially and modified.
It also appears that he had a house at Kwahajitumbo which needed repairs.
Sometime after marriage the respondent went to live in Zanzibar and supervised the construction of some houses there, including the one at Mwanakwerekwe. After construction was completed the respondent leased the Mwanakwerekwe house and it is known that she realised a total of US$ 14,000.00 from the rent.
The marriage lasted some 14 years when they obtained a judicial separation and, finally, on 14th April, 1999 the couple were formall