Court name
High Court of Tanzania

Fatuma Mohamed vs Saidi Chikamba () [1988] TZHC 25 (22 July 1988);

Law report citations
1988 TLR 129 (TZHC)
Media neutral citation
[1988] TZHC 25

Kazimoto, J.: Section 79 of the Law of Marriage Act 1971 empowers a magistrate hearing a matrimonial proceedings to state a case for the opinion of the High Court E where any question of law arises. Rule 40 of the Law of Marriage (Matrimonial Proceedings) Rules Government Notice No. 136 of 1971 lays down the procedures on how to state a case to the High Court. This case has been forwarded to this court under the provisions of Rule 40 aforesaid. The High Court is requested to give an opinion on two matters: F
   (a)   Whether or not the same court that hears a petition for divorce is competent also to hear a claim on the matrimonial assets, and
   (b)   If the same court is competent, whether or not it should use the same record  G of proceedings.
I deem it appropriate to preview the background which gave rise to these proceedings. Fatuma Mohamed whom I will refer to as the petitioner had petitioned for divorce H against Said Omary Chikamba whom I will also refer to as the respondent in Mtwara Urban Court. She had also petitioned in her petition for division of matrimonial property. The trial magistrate heard the evidence as regards the petition for divorce. Then he wrote a judgment in which he granted the divorce, having been satisfied that the marriage had I been proved to have irreparably broken down. The trial magistrate thus made this order:

   Amri: Mdaiwa anapewa nafasi na Mahakama kuleta mashahidi kama mdai hastahili A kugawiwa sehemu ya mali ambazo wamechuma wote wakati wa ndoa yao kwa juhudi za pamoja.
The respondent then gave evidence and the court set a date to inspect the matrimonial B property. The respondent then went to the District Court, and, it would appear, lodged a complaint. The district magistrate wrote a letter to the trial magistrate instructing him to terminate the proceedings and advise the petitioner to file a fresh claim for division of matrimonial property. The matter came to the attention of the resident magistrate in C charge who believed that the case should have continued in the same file and before the same magistrate without having to open a fresh suit. In a nutshell then, this is all about this case.
It is necessary to examine the provisions of the Law of Marriage Act 1971 in order to D determine the procedure relevant when granting decrees for divorce and orders of divisions of matrimonial property. There are three sections and these are sections 106; 108 and 114 of the Law of Marriage Act. Section 106 deals with what is required to be E contained in a petition for divorce. Subsection (1) (f) of section 106 requires every petition for decree of divorce to state the terms of agreement regarding division of property acquired through the joint efforts of the parties or where no such agreement has been reached the petitioner should state his or her proposals. Section 108 of the Law of F Marriage Act 1971 imposes a duty on a court hearing a petition for a decree of separation or divorce to inquire into the arrangements made or proposed as regards maintenance and division of any matrimonial property and to satisfy itself that such arrangements are reasonable. Section 114 (1) provides: G
   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 assets and the  H division between the parties of the proceeds of sale.
It should be noted at the outset that reading of sections 106, 108 and 114(1) shows that a party seeking an order for division of matrimonial property must plead in his or her I petition to that effect

and must prove in court by adducing evidence to show that he or she contributed to the A acquisition of such property. An order for division of property is not therefore automatic upon the grant of a decree of divorce. When it is not pleaded and proved under section 106 (f) and section 108 the court has no power to enquire into the issue of B division and cannot make an order to that effect. Where a petitioner has pleaded for an order for division of matrimonial property in his or her petition he or she should be required to lead evidence at the same time and in the same proceedings regarding the relief of decree of divorce or separation. The court should first decide whether the C marriage has irreparably broken down and should it so hold it should proceed to consider and decide whether the property was a matrimonial property. If it is satisfied that the property is matrimonial property it should order division between the parties according to their contribution. Under this procedure which is contained in section 106 D of the Law of Marriage Act the same court
which hears the petition is empowered to hear and determine the issue of division of matrimonial property.
The wording of section 114(1) of the Law of Marriage Act provides a second procedure under which one may petition for an order for division of property. A party E may first seek a decree of divorce without at the same time asking for an order for division of matrimonial property. The court may, when satisfied grant the decree dissolving the marriage. Subsequent to the grant of the decree of divorce a party to the Fproceedings may institute fresh proceedings claiming division of matrimonial property. It may be asked to which court should the subsequent proceedings for division of property be instituted. Section 114 (1) has the answer:
   The court shall have power, when granting or subsequent to the grant of a decree .... to order  G the division between the parties of any assets acquired......
It must be the court which granted the decree of divorce or separation and not any other court. The proceedings for division must be instituted in the same court which granted H the decree of divorce. But it may be asked whether the same magistrate must hear the proceedings for division. As a matter of law I would answer in the negative because this is quite a different issue.
In the present case the proceedings show that the petitioner had petitioned for divorce I and at the same time she also had asked for an order for division in her petition. She appears to have brought

her petition under section 106 of the Law of Marriage Act 1971. The petition for A divorce and order for division being in one and the same proceedings the court should have considered both issues and decided accordingly. It was wrong for the district Magistrate to have ordered the abandonment of the issue of division and directing the institution of fresh proceedings for division of property. B
Certainly the procedure which the trial magistrate adopted in this issue is queer and might have prompted the district magistrate to act in the way he did. As I have said the petitioner had asked for division of property in her petition. She gave evidence as to what property she was claiming division. The respondent gave evidence as to the petition C for divorce and it appears that he gave no evidence to rebut the claim for division. The trial magistrate proceeded to grant divorce and order the respondent to defend himself as to why the petitioner was not entitled to the division of property jointly acquired during subsistance of the marriage. This procedure as adopted by the trial magistrate is D irregular under the circumstances of this case for after the grant of decree for divorce the petitioner did not lodge and claim for division and the respondent had no duty to defend himself. He should have defended himself before judgment in the petition had been delivered. E
Now as to the main points stated I would hold which I do as follows. Where a petitioner petitions for a decree of divorce and in the same petition he or she also prays for an order for division of matrimonial assets the same court, and the same magistrate should hear and determine both issues in the same file. This is in accordance with section 106 of F the Law of Marriage Act. On the other hand where a petitioner seeks and obtains a decree of divorce without at the same time asking for an order of division of matrimonial assets, and lodges the claim for division later, the claim for division need not be heard by the same magistrate and certainly there must be a different file. This is the procedure G obtainable subsequent to the grant of decree of divorce or separation as stated in section 114 of the Law of Marriage Act, 1971.
  H Opined accordingly.