CIVIL APPEAL NO 58 of 2023 clean

‘ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL No. 58 OF 2023 {Arising from Matrimonial Cause No. A of2023, Arusha District Courf) ADELINA PHILIPO MASSAWE................................. APPELLANT Versus THOMAS KANDY FUSSY.......................................... RESPONDENT JUDGMENT ISP1 June & 19h July 2024 Masara, J The Appellant herein was the Respondent at the District Court of Arusha ("the trial court") in Matrimonial Cause No. 4 of 2023. The Respondent had petitioned the trial Court for the following: a) A declaration that the marriage between them is irreparably broken down; b) A decree of divorce; c) Division of matrimonial properties jointly acquired at 50/50; d) An Order of maintenance and custody of the two issues of marriage be upon the petitioner; e) Each party to bear its own costs; and f) Any other relief the court deems fit. In his reply, the Appellant contested the petition and all reliefs sought under the petition and further prayed that: i | p a) In case the court decided to dissolve the marriage then the matrimonial properties to wit, plot with a foundation located at Misitu street, Serengeti District in Mara region and Unroofed house located in Chanika Dar es Salaam be divided 70% to the Respondent (Appellant herein) and 30% to the Petitioner; b) Order for custody of the two issues be upon the Respondent; c) The Petitioner be order to pay maintenance allowance for the two issues at the tune of TZS 300,000/= monthly for each child until they attain age of majority; d) That the Petitioner be ordered to provide maintenance for the Appellant to the tune of TZS 300,000/= until when she is remarried or dies; e) Costs of the suit; and f) Any other relief(s) as the court may grant. From the evidence, there appeared to be no contest on the grant of divorce. The trial court was satisfied that the marriage between the parties had irreparably broken down. It proceeded to issue a decree of divorce. The trial court also granted joint custody of the issues of marriage. On matrimonial properties, the trial court ordered that a house at Chanika, Dar es Salaam, be completed by the Respondent and be placed on business terms so that its proceeds can be used for maintenance of the two children. The same house was placed in the custody of the Respondent who was to hand it over to the issues of marriage after they 2 | Page ‘ finish their advanced level secondary education. Further, the house located at Serengeti was allocated to the Respondent, while the unfinished house at Serengeti was placed to the Appellant. The suit house located at Uru, Moshi, was to be sold and the proceeds thereof to be equally divided between the parties. The Appellant was not happy with the decision of the trial court. She has brought this Appeal challenging the trial court's decision on the following grounds, reproduced verbatim: 1) That, after the trial court has ruled that both parties should stay with the issues subject to marriage resolved; the trial court erred in law and fact in not finding that the way the issue was resolved still brings confusion to the custody of the children. 2) That, the trial court erred in law and fact when ordered maintenance of the issues basing on unfinished house or in alternative that the trial court improperly resolved the issue of maintenance of children. 3) That, the trial court erred in law and fact when divided one of the matrimonial properties to the issues. 4) That the trial court erred in taw and in fact when unfairly distributed matrimonial properties between the parties. At the hearing of the Appeal, Mr Gabriel F. Rwahira, learned advocate, represented the Appellant while Mr Francis M. Mwita, learned advocate, 3 | Page represented the Respondent. Hearing proceeded by way of written submissions. Submitting in support of the first ground of appeal, Mr Rwahila stated that the trial court did not resolve the issue of custody of the children as the same was granted to both parties, an act which has caused more confusion than help. That, in granting custody, the trial court ought to have considered the best interest of the children. He pointed out that the Law of Marriage Act, Cap. 29 [R. E 2019] should not be interpreted in isolation from the Law of the Child Act, Cap. 13 [R.E 2019]. Citing section 125(2) of the Law of Marriage Act, Mr Rwahila submitted that at the time of the petition of divorce, the parties' children were aged 12 and 11 years, thus, were able to express their wishes as required by the law. He also urged the Court to consider the evidence given at the trial, which pointed to the fact that it is the Appellant who lived with the children when they come back for holidays from a boarding school. That, the Respondent's residence was not known and whether the same can support custody of the children. The learned advocate also pointed out that as the issues of marriage were young girls, then their mother is in a better position to live with them. Furthermore, that it was absurd to place 4 | Page custody to both parents, contrary to the dictates of section 125(1) of the Law of Marriage Act. On the second ground, Mr Rwahila submitted that the trial court erred in the way it divided the matrimonial properties. He pointed out that the order that the house at Chanika be completed and be put in business terms to support the children was not only vague but improbable. That, from the evidence given at the trial court, the Respondent stated that the house was under construction and its value was estimated to be twenty million shillings. To him, talking of completing a house and then placing it on business terms, then later maintain the children, is not understandable, as the task of building and completing the house is not a simple work. That, it was known at what stage the house was and what type of business the house was to be put. Meanwhile, he submitted, the children needed to be maintained. Regarding the third ground of Appeal, Mr Rwahila conferred that the trial court erred in distributing one of the matrimonial properties to the issues of marriage. That, by so deciding, the trial court did not direct its mind on section 114(1) and (2) of the Law of Marriage Act regarding division of matrimonial properties, including the contribution of the Appellant. 5 I Submitting on the fourth ground of Appeal, Mr Rwahila challenged the modality used by the trial court to distribute the matrimonial properties between the parties. That, although the Appellant had refuted the existence of the house in Uru, Moshi, in her reply to the Petition, the trial court, nevertheless distributed it to the parties. The learned advocate also questioned the property allocated to the Appellant which was unfinished and why she was not given the completed house as she is the one that stayed with the children. That, children, when they eventually come back from school, they will find themselves with no shelter. The Appellant's advocate urged this Court, as the first appellate court, to step into the shoes of the trial court and re-evaluate the evidence and consequently allow the Appeal. Opposing the Appeal, Mr Mwita started off by commenting on the confusion embedded in the Appellant's memorandum of appeal filed before this Court where the Appellant prays for the Appeal to be allowed with costs and in the Appellant's submissions where it is prayed that the trial court judgment be set aside with no costs. It is Mr Mwita's view that the Appellant should not be seen to be challenging the entire judgment issued by the trial court as holding so entails that even the decree of divorce is contested, which is not the case. 6| Page Responding to the first ground of appeal, Mr Mwita contended that the first ground of Appeal raised in the memorandum of appeal differs with the submissions made in its support. That, it is a principle of law that parties are bound by their own pleadings. Regarding custody of children, Mr Mwita supported the trial court's decision which granted joint custody of the children. To him, joint custody was the most favourable order to the parents considering the fact that both parents showed a desire to have custody of the children. Referring to the decision in Festina Kibu vs Mbaya Ngajimba (1985) T.L.R 42, Mr Mwita argued that merely claiming that joint custody will lead to more confusion that help without any elaboration cannot be a basis for this Court to interfere with the finding of the trial court regarding custody. That, the Court can only vary the order and deny the right to custody of a child, if it is not in the best interest of the child. According to the learned advocate, where a party is aggrieved by the custody order and intends to challenge the same based on new facts as the Appellant herein claim, one has to apply to the same court that issued the said order. For this reference was made to section 133 of the Law of Marriage Act and the case of Halima Kahema vs J.G. Karia [1987] T.L.R 147. 7 | Page Responding to the second ground, Mr Mwita submitted that the complaint by the Appellant lacks merit as the burden to complete the house and maintenance of the children is vested to the Respondent. Thus, that the Appellant is not prejudiced by the said trial court's order. That, it would have been the Respondent to complain and challenge the said order if he was not in position to work it out. It was his response that the trial court acted correctly as per section 129(1) of the Law of marriage Act. With Regard to the third ground, the Respondent's advocate submitted that the Appellant has failed to indicate how completion of the house by the Respondent and renting the house for the purpose of maintaining the issues of marriage would prejudice her. The Respondent prays that the trial courts finding be upheld as it is the Respondent who is employed and the Appellant is a housekeeper. The Respondent further beseeched this Court to consider that section 114 (2)(b) of the Law of Marriage Act is the governing law when it comes to division of matrimonial assets. That, the determining factor in division of matrimonial asset is the extent of each part towards their acquisition. That, as per the records, the Appellant proffered no evidence regarding her contributions towards the acquisition of the properties in question, although she was awarded her share as a house wife. On the other hand, 8 | Page that the Respondent testified that he was working as a public servant, the fact that was not disputed by the Appellant. The learned advocate cited the case of Mariam Tumbo vs Harold Tumbo 1983 T.L.R 293 in contention that the trial court fairly distributed the assets in according to the extent of monetary contribution as per the evidence on record. Mr Mwita, thus, urged this Court, as the 1st appellate court, to be guided by the evidence on record as per the dictate of section 111 and 112 of the Evidence Act and uphold the trial court's findings. He prayed that the Appeal be dismissed for want of merit. Having heard the parties and scrutinised the trial court's record, the issue for determination is whether the Appeal is merited on the grounds put forth. I will begin with the first ground of Appeal regarding custody of the children. In this Appeal, the Appellant faults the trial court's order which placed the custody of the issues of marriage to both parties. Her basis for the challenge is anchored on the age and the gender of the children in question and that their best interest was not considered. On the other hand, the Respondent is of the view that, since their issues of marriage are placed in a boarding school, then the trial court properly considered the best interest of the children by ordering custody by both parties. 9 | Pa ge The matter in contention here is whether the best interest of the two issues of the marriage was considered by the trial court when vesting custody of the children to both parties. The concept of the best interest of the child is well detailed the Law of the Child Act, Cap. 13 [R.E 2019]. Section 4(2) thereof states that: "The best interests of a child shall be a primary consideration in all action concerning children whether undertaken by public or private social welfare institutions, courts or administrative bodies." Further, section 39 of the Law of the Child Act reads as follows: "(1) The court sha/l consider the best interest of the child and the importance of a child being with his mother when making an order for custody or access. (2) Subject to subsection (1), the court shall also consider - (a) the rights of the child under section 26; (b) the age and sex of the child; (c) that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents; (d) the views of the child, if the views have been independently given; (e) that it is desirable to keep siblings together; (f) the need for continuity in the care and control of the child; and (g) any other matter that the court may consider relevant. " The listed conditions have to be tested before any court can grant custody of children to anyone. While it is globally believed that mothers are 10 | P a g e basically considered the best parents for infants and mostly for upbringing of girls, those considerations cannot be taken as exclusive factors in granting custody. The above provision is clear that other factors have to be considered. These include: the rights of the child under section 26 of the Act, the age of the child, the living environment, the view of the child, the desire to keep siblings together, the need for continuity in the care and control of the child and any other matter that the court may consider relevant. In this Appeal, the trial court granted custody of the children to both parties as per the trial courts judgment. None of the above factors were discussed by the trial magistrate. In that regard, I agree with the Appellant that the best interests of the children were not well determined by the trial court. Having said so, I will hereunder concede to the proposal made by the parties of stepping into the shoes of the trial court in order to assess the evidence and satisfy myself whether the order for custody made by the trial court is in the best interest of the suit children. From the evidence on record, the two issues of marriage were Winfrida Thomas Fussy, born on 14/10/2011 and Debora Thomas Fussy born on 4/09/2012. Both parties, in their testimony, informed the trial court that the said children were ii I placed in a boarding school largely because of the unending feud of the couple. It is also in evidence that it is the Respondent who pays for all the children's needs while at school. The Appellant testified that she has been taking care of their children during school vacations. The Respondent, stated that he decided to place their children in a boarding school so as to relieve them from seeing the ills done by the Appellant. The Respondent, in his testimony, did not want their children to be placed on the Appellant. For easy of reference, I hereunder quote the relevant part of her evidence. He said: 'Ms for our children, I pray for maintenance order to be on me as I have done before as I placed them to boarding school so that they can not see ill things of their mother" With that evidence on record, it is unfortunate that the trial court did not bother to seek views of the children before issuing the final order. It was also imperative for the trial court to consider the gender of those children and the fact that these children were living with their mother before being sent to a boarding school. That, the said children were in the care and control of their mother from the time their father left the matrimonial home in 2016 to 2023 when the trial court issued a joint custody order to both parties. Whereas it would be desirable for the children to live with both parents so as to reap maximum benefits of parental care, the same 12 | P a g e cannot be achieved when a decree of divorce is granted. A decree of divorce entails permanent separation of the married couple. I see nothing on record to support the conclusion made by the trial court. In fact, the fact that the said children used to live with their mother for about seven years should have been a reason for the trial court to place them with their mother, unless the said children opted to stay with their father. As their views were not sought, their best interest could not be served by the grant of a joint custody. From the foregoing, I agree with the Appellant that the trial court's decision did not consider the best interest of the suit children as stipulated under section 26(l)(b) of the Law of the Child Act. From the evidence on record and from a cursory look of things both the Appellant and the Respondent appear to have flaws in their way of life. That notwithstanding, raising children require the participation of both parents irrespective of who has custody of the said children. As the Appellant's evidence that she is the one who lives with the said children during vacation time was not controverted, it is my decision that it will not be in the best interest of those children were they to be separated from their mother. Thus, custody of both children should be vested to the Appellant. The Respondent, on the other hand, maintains the right to access the 13 I P a g e children as he wishes and will have the right to visit the said children during school vacation or at school on parents' days. The children will also have the right to visit the Respondent during vacations by prior arrangement and agreement of both parents. For avoidance of doubts, the custody order above stated does not vary the maintenance order issued by the trial court. The Respondent will continue to be responsible for the children's school fees and medical bills. In the spirit of shared responsibilities, the Appellant shall bear meal costs for the children during vacation time while they are under her custody. That said, the first ground of appeal has merit. It is allowed as above stated. Determination of the first ground largely resolves the second one as well. That is to say, maintenance of the suit children shall be as determined in the first issue. I now turn to consider the third and fourth grounds of appeal relating to division of the matrimonial properties. The issue to consider is whether the trial court properly distributed matrimonial properties between the parties herein. Division of matrimonial assets is governed by section 114(1) of the Law of Marriage Act. It states: 14 | P a g e "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 asset and the division between the parties of the proceeds of sale." Section 114(3) of the said Act clarifies further that: "For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts." As per the petition filed before the trial court, four properties were listed as matrimonial properties; namely, a house located at Misitu Street Serengeti in Mara Region; an undeveloped house located in Misitu Street, Serengeti in Mara Region; a House located at Uru, Moshi and a house under construction in Chanika, Dar es Salaam. As per the decision of the trial court, the under-construction house located at Chanika, Dar es Salaam, was to be completed by the Respondent and thereafter put it in business whereby the proceeds shall be used to maintain the suit children. The said house will then be handed to the children after they complete advance secondary education. That decision is problematic. The law authorises a court to divide matrimonial assets between parties to the marriage and not otherwise. A property can only 15 | P age be given to a third party, including children, on the consent of both parties. In the absence of such consent as is in the current appeal, then the trial court was by law duty bound to divide the said property to one or both of the parties. I, therefore, agree with the Appellant's submission that the trial court erred when it purported to divide a matrimonial asset to the issues of marriage. The said division is hereby varied and set aside. The law provides for the factors to be considered during the division of matrimonial assets. Section 114(2) of the Law of Marriage Act provides: "In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division." The fundamental principle guiding division of matrimonial property is contribution of each spouse towards the acquisition of the property. That is, if parties acquired any asset or property during the subsistence of their marriage, it will be subject to division based on proof of each one's contribution. The extent of contribution is of utmost importance to be 16 I Page determined when the court is faced with a predicament of division of matrimonial property. See the case of Tumaini M. Simonga vs Leonia Tumaini Belanqa (Civil Appeal No. 117 of 2022) [20231 TZCA 249 Tanzlii. In determining the extent of contribution of each party to the acquisition of a matrimonial property, the court will largely rely on the evidence adduced by the parties. Thus, a party alleging contribution on a certain property has to prove the extent of contribution in line with section 110(1) of the Evidence Act, Cap. 6 [R.E 2019]. Case law has also emphasised on this aspect as it was held in Bibie Mauridi vs Mohamed Ibrahimu [1989] TLR 162 that there must be evidence to show the extent of contribution before making an order for distribution of matrimonial assets. Unfortunately, parties to this Appeal did not submit documentary evidence to prove their contribution towards the acquisition of the four matrimonial properties. They only adduced oral evidence to that effect. Going by the oral evidence, after the testimony of the Respondent, the Appellant, during cross examination stated that, what the Respondent had testified was to a large extent true. Going by the evidence on record, the Appellant was not employed and was not running any business. The trial records described her as a 17 | P . "housekeeper" I believe it meant that she was a housewife. The Respondent, on the other hand, is an immigration officer, a public servant. It is also not disputed that it is the Respondent who has been maintaining the issues of marriage before and even after their separation. Notably, the Appellant did not prove her extent of contribution towards the acquisition and development of their matrimonial properties, including the said under­ construction house at Chanika, Dar es Salaam. This court cannot order equal distribution of the said property. It is hereby ordered that the said house is solely allocated to the Respondent. Regarding the house located at Uru, Moshi, there appeared to be a controversy of evidence on the same. While the Respondent stated that the said property is their matrimonial property, the Appellant, in her reply, denied to have such a property as their matrimonial house. The trial court, however, divided the said property to both parties by ordering that the said house be sold and its proceeds equally distributed among parties. Ideally, once the Appellant denied the said property, one would not have expected the trial court to divide it to her. During trial, the Respondent who had put the same as a matrimonial property did not explain or tender any documentary evidence to prove its existence or the way it was acquired. In law, a property not proved cannot be a subject of division as 18 | P a g e a matrimonial property. This Court in Dr Olivia Michael Kimaro vs Dr Derick David Nyasebwa, HC Civil Appeal No. 51 of 2022, ruled that properties not proved during trial cannot be divided as that is a contravention of section 114(1) of LMA. Thus, this Court finds that, the trial court erred in dividing the property located at Uru, Moshi, which was not identified or proved before it. Regarding the two matrimonial houses located at Misitu Street in Serengeti District, this court is reluctant to interfere with the trial court's order considering that each party was allocated one house. At the trial, the Respondent testified that the Appellant was entitled to 50% of their assets, despite being a house wife. This offer was not pursued by the Appellant and the trial court records are silent on the value of the two houses located in Serengeti District. The claim by the Appellant that the children will have no place to live is not backed by the evidence. The available evidence indicate that the suit children are most of the times in boarding school and only live with the Appellant during vacation. The evidence further reveals that at the time of their separation, both the Appellant and the Respondent were not residing in any of their matrimonial houses. They lived in a rented house and later on the Appellant was sent back to her parents in Moshi where she resides at the moment. 19 | P a g t From the foregoing, this Appeal succeeds to the extent explained above. The order allocating joint custody of the issues of marriage to both parties is rescinded and set aside. Custody of the suit children, Winfrida Thomas Fussy and Debora Thomas Fussy is granted to the Appellant. The Respondent is granted the right to access and the right to visit the children during school vacation who can also visit them on prior arrangement and agreement of both parties. Regarding matrimonial properties, the trial court order granting the issues of marriage the under-construction house located in Chanika, Dar es Salaam, is hereby varied and set aside; in lieu thereof, the said house is allocated to the Respondent herein. Likewise, the order directing the sale of a house in Uru, Moshi and its proceeds be distributed equally among parties herein is set aside. Other orders of the trial court remain undisturbed except the order of maintenance of the children which is to be borne by the Respondent in terms of school fees and medical bills. The Appellant, in the spirit of shared responsibilities, shall bear costs of the meals for the children during vacation time. This being a matrimonial matter, I direct that each party bears its own costs. DATED and DELIVERED at ARUSHA this 19th day of July 2024 Y.B. Masara JUDGE 20 | P a g e