Mnzavas J.K.: The appellant and the respondent were married in 1972 under Islamic law and cohabitated in Newala and Dar es Salaam where they are now domiciled.
The marriage started disintegrating in 1986 when the appellant married a second wife. Efforts by local conciliation board to reconcile them were of no avail and consequently H the respondent filed a petition seeking for divorce and division of matrimonial property.
The Magomeni Primary Court (in Magomeni Primary Court Civil Case No. 13 of 1987) the Primary Court magistrate and the two assessors agreed that the marriage between I the parties had
irreparably broken down and accordingly dissolved the union. A
They however differed on the question of division of matrimonial property. The two elders were of the view that the property, a house at Mburahati, was built by the appellant without any assistance from the respondent/petitioner and therefore concluded B that the respondent/petitioner was not entitled to a share in the house.
The Primary Court magistrate was, on the other hand of a different view. He was on the evidence, of the opinion that the respondent/ petitioner had contributed in the acquisition C of the house and therefore entitled to a share in the house. As the Primary Court magistrate was of the view that the two gentlemen assessors had erred he forwarded the record to the District Court for determination as to which of the two opposed views was right.
In his assessment of the evidence tendered in the court of first instance the learned D district magistrate was convinced that the house was jointly acquired by the parties during the subsistence of the marriage and that the respondent/petitioner was entitled to a share in the house as found by the Primary Court magistrate.
The District Court accordingly invoked its powers under section 21 of the Magistrates' E Courts Act and reversed the majority judgment of the Primary Court and ordered that the Primary Court assess what the respondent was entitled as her share in the acquisition of the house and be paid by the appellant/respondent.
Dissatisfied by the decision of the District Court the appellant/ respondent has appealed F to this Court.
Before this Court the appellant recapitulated his defence in the lower courts that the respondent/petitioner did not contribute in the acquisition of the house; and that he built the house through a loan from Tanzania Housing Bank. Appellant's argument that he G secured a loan from the bank to build the house may well be true but that does not necessarily mean that the respondent/petitioner did not contribute in the acquisition of the house.
The law regarding section 114 of the Law of Marriage Act is now well settled. The H principle underlying division of property under section 114 is one of compensation, it does not matter nor does it make any difference whether that being compensated is direct monetary contribution or domestic services.
There was no dispute that during the subsistence of the marriage in which the house was I built the respondent/petitioner bore children, reared them and took care of the matrimonial home. She thereby freed her husband, the appellant, for his economic
activities. She is therefore entitled to share in the economic fruits. And what is more there A was independent evidence from Saidi Omari (PW2), which was to the effect that the respondent/petitioner participated in the construction of the disputed house by clearing the ground on which the house is built. Apparently the appellant did not challenge this evidence. I agree with the decision of the District Court that the respondent/petitioner B contributed in the acquisition of the house and she is therefore under section 114 of the Law of Marriage Act entitled to a share in the house.
Let the Primary Court assess the value (in monetary form), of her contribution and the respondent pays the sum to her as compensation. In the event the appellant fails to pay C compensation to the respondent the house will have to be sold to realize respondent's share.
The appeal accordingly fails. The respondent to have her costs in this and the lower courts. D