20161214 TZHC Dodoma1

IN THE HIGH COURT OF TANZANIA AT DODOMA PC MATRIMONIAL APPEAL NO 6 OF 2015 (Arising from Original Civil Case No. 2212015 at Chamwino Urban Primary Court) ABDALLAH SALUM CHUGA...............................................APPELLANT VERSUS HALIMA ISMAIL SALUM...................................................RESPONDENT JUDGEMENT 22/9/2016& 1411212016 A. MOHAMED, J. This matter originated at the Chamwino Urban Primary Court as Civil Case No. 2 of 2015 wherein judgment was given for the respondent, Abdallah Salum Chuka. It was reversed on appeal in Civil Appeal No. 22 of 2015 by the Dodoma District Court in favour of the appellant, Halima Ismail Salum. For an easy appreciation of the facts of this case, the appellant and respondent were deemed husband and wife under the provisions of sections 160 (1) of the Law of Marriage Act [Cap 29 RE 2002] having lived together under the same roof from 2007 until a dispute between them arose in 2009. They were blessed with one issue in 2011. The husband had built a house on Plot No. 8 Block D 1 ka Nkuhungu in Dodoma Municipality from 1997 when he was married to his earlier wife who expired in 2004 and had borne him a child. The relationship between the appellant and respondent turned sour on the appellant's allegation the respondent was bewitching him and further was plotting with thugs to attack him. The trial court found the marriage had irreparably broken down and ordered its dissolution. As to the distribution of matrimonial properties, it found the suit house belonged to the appellant who had purchased the plot in 1997 and had built a house thereon by 2004 with his late first wife. It awarded the respondent all the matrimonial furniture in that house and a monthly maintenance allowance of 50,0001= shillings for the issue. On appeal the dissolution was confirmed, but the order on the division of the house as matrimonial property was varied by awarding the respondent a half share of the house. It also ordered the custody of the child to the respondent. Against this decision the appellant appeals on the following 3 reasons; That the 1 sf appellate court erred in deciding the case against the weight of the evidence adduced by the appellant at the trial court. That the Ist appellate court erred in giving its decision without considering the interest of the child which is against human rights. 2 3. That the 1st appellate court erred by ordering distribution of matrimonial assets without considering that the respondent did not contribute anything in acquiring the property. When the appeal came up for hearing on 26/5/2016, the appellant was represented by Mr. Matimbwi, learned counsel whilst the respondent appeared in person. Mr Matimbwi submitted collectively on the appellants' 1st and 3rd grounds by saying that the division of the matrimonial assets did not consider the weight of evidence on how each of the spouses contributed to the acquisition of the said property. He went on to argue section 114 (1) of the Law of Marriage Act sets conditions precedent to such distribution. He said section 114 2 (b) and (d) directs a court to consider the extent of each spouse's contribution in money, property or work towards such acquisition. He said subsection (d) addresses needs if any of issues, if any. Mr. Matimbwi maintained that the appellants' two children were involved, one from his deceased wife and the other of the parties. He contended that evidence showed the appellant bought the plot in 1997 and built the house before 2004 with his deceased wife. He assailed the 1st appellate court's failure to properly consider the evidence of SM2 Damas Magari, a mason who built the house and of the 10 cell leader Mfaume Rashid. 3 He argued the best evidence before the 1st appellate court was that of the mason and not of the 10 cell leader as a mason is engaged in day of day activities whereas the 10 cell leader was just a passerby. He supported his position with Bibie Maulid vs. Mohamed Ibrahim [1989] hR 162 which held that; "There must be evidence to show the extent of contribution before making an order for distribution of matrimonial assets." In light of the above authority, Mr. Matimbwi argued the suit house is the appellant's property that was acquired before he had a relationship with the respondent, who he stressed, is not entitled to any share. Submitting on the 2nd ground of appeal, Mr. Matimbwi said the 1st appellate court failed to consider the best interests of the child under section 26 (1) of the Law of the Child Act, No. 21 of 2009. He maintained the appellant can better preserve the best interests of the child as he has a fixed abode and is gainfully employed. He went on to say the respondent could not detail her occupation or employment at the trial court. He cited Anna Samson VS. Richard Odera Aduda [1964] EA 163, a child custody case, which inter alia held that the atmosphere at the father's abode was more conducive to the mental and physical development of the child that that prevailing at the mother's home. 4 The counsel prayed the appellate be given custody of the child as it will not be properly brought up rather that by the respondent. In response to the appellant's ]st ground of appeal, the respondent argued he was telling lies. She went on to say 5M2 Magayane, the mason had also told lies as he had testified that the house has four rooms but in fact it has 3 rooms. She was of the view that his evidence was therefore not credible. She said the 1st appellate court did consider the child's interests and she was taking good care of her and she did not see any need of the child to be in the custody of the appellant. It was her contention that she was gainfully employed and has the services of a maid to look after the child during working hours. And further that the appellant has not maintained the child at all since 2013. As for the 3rd ground, she submitted both parties contributed to the acquisition of the matrimonial home. She said she quit her job at the Kidia Hotel in 2007 so as to supervise the construction of the said house from foundation stage until it was completed in 2009 when the couple moved in. She said, thereafter building proceeded until 2013 when the appellant left the house to live with another woman. After hearing the parties and having reviewed the lower courts' records, I will earnestly consider the appeal. It was the appellant's 1st complaint that the I st appellate court decided the case against the weight of the evidence the appellant had adduced at the trial court. Having reviewed the trial court's record, it is uncontested the appellant purchased the said plot in 5 1997. According to the appellant, he competed building a house thereon and had lived with 1st wife who died in 2004. He started the relationship with the respondent in 2009 and the two were blessed with a girl in 2011. And he told her to move in after she became pregnant. He went on to say he left the house after living with her for 3 years and 7 months. His version was supported by SM2 Damas Magari, a mason. On the other hand the respondent claims she found the plot with only a foundation that she and the appellant demolished. And that they fabricated bricks and proceeded to build the house to its completion from 2007. Her story was supported by SU2, Mfaume Rashid Liganga, who was then 10 cell leader. He said the house was built after the appellant and respondent had been living together. Although SU2 said he knew Damas Magayane, the mason, I find the mason's proper name is Damas Magari as is seen in the trial court's proceedings. It is also clear; SU2 did not know the appellant had a wife who died in 2004. After a close scrutiny of the evidence at the trial court, I am of the considered opinion SU2's testimony was not credible. He claims the appellant and respondent started having a relationship in 2008 whereas the respondent herself said the relationship started in 2007. Then there is the discrepancy of the names of the mason as well as his failure of knowing the appellant had a wife. Despite claiming to be very knowledgeable on the parties' affairs it is apparent he was a tutored witness. 11 * Having said so, I am in agreement with the appellant that SM2's testimony was more credible than of the respondent and his witnesses SU2. In fact as the chief mason, he was better placed to know of the stages of construction of the house and inevitably when the appellant moved in. The principle in Bibie Maulidi Vs. Mohamed [1989] hR 162 is that there must be evidence to show the extent of contribution before a court makes an order for distribution. In Bi Hawa Mohamed V. Ally Seif [1983] hR 32, the court took the view that domestic chores by a wife is considered as contribution and is to be treated as working not only for current needs but also for future needs. In applying the principles enunciated in the above authorities to the present case, it is clear from the evidence that the respondent found the appellant and his first wife had already built the said house and therefore she did not contribute to its acquisition. It was only the respondent's contribution by way domestic chores in the 3 year period that the parties lived together that ought to be considered. It is also noteworthy that the respondent supported the deceased wife had a right to the property. I therefore find the said house is matrimonial properly in respect of the deceased first wife. After the foregoing, I am satisfied the 1st appellate court failed to properly consider the appellant's evidence at the trial court. I accordingly allow this ground as it has merit. In regard to the question of the child's custody, section 125 (2) of the Law Of Marriage Act gives guidance in the following terms; 7 "in deciding in whose custody an infant should be placed, the paramount consideration shall be the welfare of the infant and subject to this, the court shall have regard to;- The wishes of the parents of the infant The wishes of the infant, where he or she is of an age to express an independent opinion: and The customs of the community to which the parties belong. I have not been persuaded by the appellant's argument that he is better placed to look after the infant as he is married and is gainfully employed and that the respondent cannot properly raise the said infant. As the infant is under 7 years of age, I find that the mother is better placed to have custody due its tender age. When she attains the age of 7 and above she can express her opinion with which parent. she prefers to live with. I accordingly dismiss this ground of appeal for being devoid of merit. In addressing the 1st ground of appeal, I have incidentally also deliberated the question of division of matrimonial properties. Suffice to say, the 1st appellate court misdirected itself on this question. I accordingly allow this ground of appeal for having merit. In the final the appeal is partly allowed on the 1st and 3rd grounds. I restore the trial court's order in regard to the division of matrimonial properties. I also vary the amount for the child's 8 maintenance to 100,0001= shillings monthly to be paid for by the appellant. Each party is to bear its costs. t is so ordered. IN .5-i )-'_ - S_- •'' S.. .. A. MOHAMED - f JUDGE 14/12/2016 The right of dppeal explained - M A. MOHAMED S . - \ / JUDGE - h...5._. 14/12/2016