Mwalusanya J:
After a divorce case, the appellant Mrs Anna Kanungha applied at Dodoma Urban C Primary Court for the division of the matrimonial assets between her and her ex-husband the respondent Mr Andrea Kanungha. The matrimonial assets to be divided consisted of 130 head of cattle, 28 sheep, 8 goats, 6 donkeys, two houses of corrugated iron sheets and two thatched houses. The trial court awarded only one house of D corrugated iron sheets and she was denied the rest. She appealed to Dodoma District Court which quashed the proceedings allegedly because they were a nullity on the ground that the assessors did not give their opinions in writing before the judgment was written. She has now appealed to this court challenging the decisions of the two courts E below.
The learned resident magistrate was patently wrong. And I have to observe that this is not the first time the learned resident magistrate has committed such a gross misinterpretation as regards GN No 2 of 1988. The law as introduced by GN No 2 of 1988 is that after she closes the defendants case the trial magistrate should not record F the opinions of the assessors as had been the case before. All that the trial magistrate has to do, is to consult or confer with the assessors as to what they thought about the case, and this consultation does not have to be reduced to writing. After agreeing on the G decision, the trial magistrate writes a judgment which includes the views of the trial magistrate and the assessors. Then the trial magistrate and the two assessors sign that judgment. If one dissents, a dissenting judgment is written and signed by the one dissenting. So in this case the trial court properly complied with the law, as the judgment H is duly signed by the trial magistrate and both assessors.
Now was the trial court correct in dividing the matrimonial assets the way it did? The appellant has told this court that she is satisfied with the way the houses were divided. Her concern is about the heads of cattle of which she was deprived. There was no I dispute at the trial that the assets consisted of 130 head of cattle; 28 sheep, 8 goats and 6 donkeys. The trial court held that the said
cattle were not liable for distribution because they are the personal property of the A respondent which he had inherited from his father before he married the appellant.
The trial court was clearly wrong. There are three grounds for saying so. First because under s 114 (3) of the Law Marriage Act No 5 of 1971 such personal property is liable for B distribution so long as the same has been substantially improved during marriage by the joint efforts of the spouses. In the case at hand there can be doubt that the appellant had helped to improve the cattle by going to graze them in the bush (as is common with the Wagogo) and by cleaning the kraal. So she is entitled to a share. C
Secondly, there was evidence at the trial to the effect that some cattle were realised by buying after the spouses had sold their joint crops. Such contention was not seriously challenged, as respondent merely stated that he had inherited 30 head of cattle which D had reproduced. Even if the 30 head of cattle had reproduced, there was room to accept that some had been bought.
Thirdly, and which is more important is the fact that there was uncontroverted evidence adduced at the trial to the effect that some heads of cattle were jointly acquired by the spouses as bride price when their two daughters got married. It is said one daughter E was married for 20 head of cattle and 20 goats, while the other daughter was married for 18 head of cattle and 15 goats. So in all there were 38 head of cattle and 35 goats acquired through brideprice. When I enquired from the respondent about this revelation, he conceded that it was true. Therefore I am at a loss as to why the trial court held that F there was no joint heads of cattle liable for distribution. The trial court clearly erred.
Considering the fact that the spouses are now old, they being allegedly married in 1950, and considering the fact that respondent has some two other younger wives, with a number of children, I will give the appellant a lesser portion of the cattle. In the event I G award the appellant 10 head of cattle, two goats and six sheep. The award of a house given to the appellant by the trial court is endorsed.
In fine the judgment of the District Court is set aside. The decision of the trial court is H upheld but varied to the extent indicated above. The appeal is allowed with costs. Order accordingly.
A
