CIVIL APPEAL NO 180 OF 2022 AMRI YAHAYA MFIKILWA VS FATUMA NAMPEMBE

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. J.A.. MAIGE. J.A.. And MURUKE. J.A.l CIVIL APPEAL NO. 180 OF 2022 AMRI YAHAYA M FIKILW A.......................................... ............... APPELLANT VERSUS FATUMA MOHAMED N AM PEM BE............... ................ ....... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (M w asebaJ.) dated the 06th January 2022 in PC Civil Appeal No. 104 of 2021 JUDGMENT OF THE COURT 10th & 26th March 2025 MURUKE. J.A.: The appellant, Amri Yahaya Mfikilwa and the respondent, Fatuma Mohamed Nampembe were husband and wife having celebrated Islamic marriage on 24/02/2008. The two were blessed with two issues and had two houses located at Msamvu- Morogoro and Mabwepande at Kinondont, Dar es salaam. In 2019, the respondent petitioned for divorce at Kimara Primary Court- Ubungo in matrimonial cause No 126 of 2020, claiming for divorce, division of matrimonial assets, custody and maintenance of the two issues of marriage. The trial court after hearing the petition, granted divorce, divided the two houses into two equal shares and two issues were placed in the custody of the respondent, and the appellant was ordered to pay maintenance costs for the issues at the rate of TZS 200,000 per month. The appellant was aggrieved with the decision of the trial court, thus filed appeal at the district court of Kinondoni where the appellant partially succeeded and the District court revised the order of division of on the house located at Msamvu Morogoro because it was personal property acquired by the appellant before marriage. On the house located at Mabwepande, it was confirmed to be matrimonial property but division was 70% and 30% for the appellant and the respondent, respectively. On maintenance of the two issues of marriage, it was ordered that TZS 200,000 be shared between the appellant and the respondent, thus the appellant was ordered to pay 100,000 per month. Being dissatisfied, the appellant filed a second appeal to the High court in which the district court decision was confirmed. Undaunted, the appellant is before this Court raising 12 grounds of appeal, which we paraphrased, same boils out into four grounds as follows: One, whether it was proper in law for the High Court to hold that respondent is entitled to a share of the house at Mabwepande. Two, whether it was proper in law for the High Court to deny custody of the children above 7 years old to the appellant Three, whether it was proper in law for the High Court to order maintenance ofTZS. 100,000.00 without considering the economic status of the appellant. Four, whether it was proper for the High Court not to include the 100 shares acquired by the respondent from Mwalimu Commercial Bank as matrimonial asserts subject of division. Both parties filed written submissions in support of their case in terms of Rule 106 of the Court of Appeal Rules, 2009 (the Rules). At the hearing of this appeal, the appellant and the respondent each appeared in person unrepresented. They thus adopted the relevant filed written submissions. Commencing with ground one, the appellant submitted that the house at Mabwepande was not matrimonial property because he built alone for him and two issues of marriage without any contribution from the respondent. It was wrong for the High Court to hold that the respondent was entitled to 30 shares. In reply, the respondent contended that the house at Mabwepande was built in 2015 during subsistance of the marriage, and being a wife, she contributed for taking care of the family. For better scrutiny of this issue, it is worth reproducing the provision addressing distribution of matrimonial property, that is, section 114 of the LMA, which states "144 (1) The court shat! have power, when granting or subsequent to the grant o f a decree o f separation or divorce, to order the division between the parties o f any assets acquired by them during the m arriage by their jo in t efforts or to order the sate o f any such asset and the division between the parties o f the proceeds o f sale. (2) In exercising the pow er conferred by subsection (1), the court shai! have regard- (a) to the custom s o f the com m unity to which the parties belong; (b) to the extent o f the contributions made by each party in money, property or work tow ards the acquiring o f the assets; (c) to any debts owing by either party which were contracted fo r theirjo in t benefit; and (d) to the needs o f the infant children, if any, o f the m arriage, and subject to those considerations, sh a ll incline towards equality o f division. (3) For the purposes o f this section, references to assets acquired during the m arriage include assets owned before the m arriage by one party which have been substantially im proved during the m arriage by the other party or by their jo in t efforts". According to the above excerpt, it is clear that section 114 (1) of the Act vests power to a court hearing a matrimonial dispute to order division of assets which were obtained by married people during the subsistence of the marriage through their joint efforts when granting or subsequent to the grant of a decree of separation or divorce. Section 114 (2) gives the trial court the criteria or principles to follow in the division of matrimonial assets one, the customs of the community; two, the extent of the contributions made by each party in money, property or work towards the acquisition of the assets; three, any debts owing by either party which were contracted for their joint benefit, and four, the needs of the infant children, if any, of the marriage, and five, subject to those considerations, the court to be inclined towards equality of division. The law talks of matrimonial assets but the same has not been statutorily defined. Through case law, the same has been defined to be those assets which were acquired by one or the other spouse before or during their marriage, with intention that there should be continuing provisions for them and their children during their joint lives. They include assets which may have been owned by one party prior to the marriage but improved by the other party during the marriage on their joint efforts. See Gabriel Nimrod Kurwijila v. Theresia Hassan Maiongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020) TanzLII and National Bank of Commerce Limited v Nurbano Abdallah Mulla (Civil Appeal No 283 of 2017) [2020] TZCA 238 (8 April 2020) TanzLII. Section 114 of the LMA has been subject of the interpretation by the Court in a number of cases, in particular, Bi. Hawa Mohamed v. Ally Seif (1983) TLR 32 (supra), we stated that:- "(i) Since the welfare o f fam ily is an essential com ponent o f the econom ic activities o f a fam ily man o r woman it is proper to consider contribution by a spouse to the welfare o f the fam ily as contribution to the acquisition o f m atrim onial o r fam ily assets; and (ii) the "joint efforts" and work tow ards the acquiring o f the assets'have to be construed as em bracing the dom estic "efforts1' or "work" o f husband and wife". In Robert Aranjo v. Zena Mwijuma [1984] TLR 7, the Court further stated that:- "With regards to the fear that the broad view m ight resu lt in a w ife being allow ed to benefit from a m arriage which she wrecked we think, with respect, that it is m isguided because what is in issue is the w ife's contribution or efforts towards the acquisition o f m atrim onial or fam ily asserts, and not her contribution towards the breakdown o f the m arriage. O f cause there m ay be cases where a w ife's m isbehavior m ay am ount to failure to contribute towards the acquisition of m atrim onial o r fam ily asserts, but th is has to be decided in accordance with the facts o f each individual case. " In the case of Bible Maulidi v. Nlohamed Ibrahim (1989) TLR 162, it was also held that:- "Performance o f dom estic duties am ounts to contribution towards acquisition but not necessarily 50%. In Mohamed Abdallah v. Halima Lisangwe [1988] T.L.R. 197, Court emphasized that services of a wife entitle her to division of matrimonial properties regardless of her direct contribution or otherwise. Likewise, in Reginald Danda v. Felichina Wikesi, Civil Appeal No 265 of 2018, we held that a wife is entitled to division of matrimonial properties even if she had not made any direct contribution to their acquisition for, she has that entitlement so long as she was a wife who made indirect contribution through domestic chores. From the stated provision and the cases cited above, it is clear that, proof of marriage is not the only factor for consideration in determining contribution towards acquisition of matrimonial assets. When determining such contribution court must also scrutinize the contribution or efforts of each party to the marriage in acquisition of matrimonial assets be it direct or indirect. Thus, applying the said principle to the present case, and recognizing that the first and second appellate courts made a finding of fact that the respondent contributed to the acquisition of the matrimonial assets, that is, the house through various means, including domestic work, we have no mandate to make a fourth finding of facts and make a different decision having in mind this is a third appeal. The position of law on the third appeal like the one at hand, is that, ordinarily, a court can rarely interfere with concurrent findings of facts by courts below save where there was a miscarriage of justice or a violation of some principle of law or practice. This principle of the law was stated in the case of The Director of Public Prosecutions v, Jaffari Mfaume Kawawa [1981] T.L.R 149, Musa Mwaikunda v. The Republic [2006] T.L.R 387 and Neli Manase Foya v. Damian Mlinga, Civil Appeal No. 25 of 2002 (unreported) Court put the point clear in Nelly Manase Foya (Supra) where it was said:- "It has often been stated that a second appellate court should be reluctant to interfere with a 8 finding o f fact by a tria l court, more so where a firs t appellate court has concurred with such a finding o f fact... A s was said b y S ir Kenneth O'Connor, P. o f the defunct Court o f Appeal fo r Eastern A frica in the case o f Peters v. Sunday Post Lim ited (1958) E A 424 a t page 429. It is a strong thing fo r an appellate court to d iffer with the finding , on a question o f fact, o f the Judge who tried the case, and who had the advantage o f seeing and hearing witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determ ine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court m ight its e lf came to a different conclusion" Going through the record, we could not see any mis-directions or non-directions on the evidence, or a miscarriage of justice or violation of some principle of law or practice in the proceedings of the primary court and the District Court requiring the intervention of the High Court. However, the High Court took trouble to make a third evaluation of the evidence which came out with same conclusions. As the three courts below the High Court Judge found out that, the respondent had contributed on the house at Mabwepande, we thus decline the invitation by the appellant to make new evaluation of evidence and make a fourth finding of fact. We have no such mandate in the circumstances of the appeal at hand. In view of the foregoing, this ground lacks merit, thus dismissed. Elaborating on the second ground, appellant insisted that as a father, he is the one better placed to stay with the two issues of marriage. Further, respondent is living with another man to the disadvantage of the issues. Respondent briefly submitted that she has been living with the issues alone since divorce without any problem. Changing of the custody to the appellant who is married to another wife will affect the issues in many ways. Having heard parties in brief in this ground, our starting point is the position of the law as set out under section 125 of the Act, is that the paramount consideration in granting custody is the best interest of the Child. Where the best interest of the Child lies as between the father and the mother, is a question of fact, which can be determined according to the facts of the case. In the case at hand, the trial court having considered the evidence on the record was satisfied that, it was in the best interest of the Children to stay with their mother. First and second appellate court having revisited the evidence joined hand with the trial court that, the two issues are better placed with their mother. There is nothing on record to 10 suggest that there is misapprehension of facts or evidence by the three court below. Present ground being pure point of fact, we see no reason to depart from the concurrent findings of the three courts below. We totally agree with them that, under the circumstances of the appeal at hand it is the best interest of the two issues to stay together with their mother, the respondent herein. We thus dismiss the second ground of appeal. On the third ground, the appellant's complaint is on the mount of TZS. 100,000.00 decreed as maintenance for the two issues monthly without considering his income. The respondent on the other side maintained that the amount decreed as maintenance is TZS. 200,000.00 to be shared equally between the two. The appellant has not contributed for all this time. Maintenance of the issues of marriage is provided under section 129 of the law the Marriage Act [Cap. 29 R.E. 2019]. The duty to maintain issues of the Marriage is on the husband, and in view of the fact that, a child needs food, clothes, shelter and other necessities in their daily life, we are in agreement with the respondent that, the award of TZS. 100,000.00 as maintenance of the issues of the Marriage was rightly granted. It is a matter of principle and self-parental discipline between the spouse that, the issues of Marriage must continue with their daily lives ii as if nothing has happened. The appellant being a father of the two issues of marriage is obliged in law to maintain them by providing food, shelter and other needs regardless of whether they are under his custody or the custody of their mother. There is nothing on record to warrant interfering with the three lower courts'findings. Thus, ground three also lacks merits and is accordingly dismissed. We now pass to the fourth ground on the issue of 100 shares of the respondent not declared as among the matrimonial properties. On this, the appellant submitted that while the house at Mabwepande registered in his name was declared to be matrimonial assert subject for division, respondent's shares were not, claiming to be double standard. The respondent argued that appellant did not prove the existence of the shares at the trial court. Further, the shares acquired by virtue of her being a teacher thus automatic member of Teachers Community Bank. On reflection, she intimated to us that the appellant could be portioned 30 out of 100 share if it is proper and in accordance with the law. We have gone through the record; the appellant did not claim the shares complained of at the stage of pleadings. In short, there was no cross- petition to claim for the shares or any other relief by the appellant. Appellant raised issue of the respondent's shares on his evidence contrary to the rules of pleadings. Parties to the dispute cannot testify on 12 an issue not pleaded and expect to get relief. It is clear to us that the respondent shares not being part of pleadings at the trial court, the appellant cannot seek any relief. This ground lacks merits thus dismissed. In totality, we dismiss the appeal with costs. DATED at DAR ES SALAAM this 25th day of March, 2025. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL Judgment delivered this 25th day of March, 2025 in the presence of the appellant in person and Mr. Issa Mussa, brother of the respondent; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL