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y:r,r rrrm. n<+rr cmrqrr OF TA ir7,A '-TT A Arr nt.~ "P.8 SAJ..llJ1 Y 0 •••••••••• ·:i·:·_·,· .. ... _ us - •_.A:_".r_•i :-, This is an appeal from the decis:ion of the 1'istrict Court of r1a1a· Distri.ct a. t Vi sutu nar es Salaa:ro, Tbe following brief histel"ical account of the case is net disputed. r. The 0,ppellant wa.s married. to the respondent c,n ;~tb ?ifarch, at the .A.rse. 0ot,,mis~:ioner' s Office Tabor2 • Two e"1i :1 dr~n were 1,-r, bol'.'n of t1'e marrie.,r,re. 'T'rese al'.'e Timothv, a bo~r. b<"rn on 15/8/8~ and Tecla, a girl. bern on 6/121197'3. TTnhaJlpilv, tl°'e marriage ;~ did not l~ist for l.~n,g 'be~au.s e as f:ro~ s0U1etj mes in ! 983 1 the parties foa.n;i tl"emselves entangled in matrimonial dif':f':i cu.1 ties ?n0 disatisfactitm against eac}, ot:ber. 0-onseouent~ "Ir, ttie respondent :file~ me.tri,r,onial :rroceedin.Q'.s ~1efore t}ie !laJa Dtstrict Court 1>etitjonjng for the dissc.J.ution of t're mar_riage and dj"lrorce • Judgment wa.s en+erec1 in ·her f'a"lrou.r w'.rerej_n divorce wae granted end custorhr o+' the c'.r:J lclren as pravea. in her pettt5on, mi,,e n1strict t;ourt aJso mane a furhter erder regarding ·the distribution o-f t)ie matrjm6nit..l property on an eoual b8sfc between the. appel] ant a.nn the resp0nd.ent after effeetint?: a proper evaluatjon pf t~e propertv in question. Disatisfied wjt'.b tlie decision of the District nou-t the

appellant appeaJ.s to this Court. 'Roth the a,ppe] J ant and trie resJ')onrtent W"3re unrepresented. They both. ~prearea ir" person at the reerin.ci; of t},is a.:prieal. Initie.llv, the memorandum c,f 2ppeal by t.he appealla.nt ra-ised several points of complaint against the Distrj_ct Court's decision. Fowever, B.t tre :bearing of' the 8.pT'eal on furtlier clarification hein.g so1.tsrht bv t:re court reaaraing tre grounds of ap:rea,1 1 the a:rpe]lant expressJy ind:i cated. to the cQurt that ••••• / 2. - 2 - apart from t:he i~sues concE1rnin-";'. the c1.1.st0Av of t'.he two chj.J dren a111a tre apportionin~ of trie rnatrhronial assets (property), he he,rl_ abendonea tJ-,e -rest 0+' tr0 :'!rounds in pureuinB: the apf!eaJ hefo,..e tnis ~ourt. Jn +.re result, t:be diesolu.tj nn of the marriaae anr!. t.'h.9 a ii:rorce as or.cereo bv tre !fieotrict Court is not chaJlengerl or di~putea by either of t:he parties. At t}.-le hA~rinp; of' t:he appeal, J listened to the parties very attent:ivelv • .Apart from reiterciting: whBt t'hev he.a said before tne. District Court as rev0eled from t:re court recm:·d, tlie gist of trie appelJant argument wa.s tr-at tre respondent he.d talren her s'b~.re o:P tre pronertv in which casP, whatever property . was lleft witn 1'im (apr"lllant~ . belonRecl to him or . S}:ll"luld betre~red B,S his slia:re of the rnatritr)C'lnial assets. It was the

ap-r,e1Jan.ts contensj cm tha.t tJ-0 res.ponae:nt left the matrimonie.l ~ome e.t a time wh 1=rn the D-T'PPlJant was awa~r on dutv when shT t00:k a.Wair with :her most of tre hcrn.seho1rl belong1-nf"r.. rm. this account, the anT'eJJpnt wes surpriRAd as to what.more of tre propertir tre responr,ent was to be e.wR,..eded following .Lhe District, ffourt decj_s-i on. In re,Q,"ard t0 the cu.stochr 0 f the tw0 - children, t}-le ~-J'IT1ellant ur.q;ed tna.t · be sh0uJ d be awarded · custodv of tflem heoe.use he is i:ri a p0R:i ti0n to m.aintain the chiJdren as, after eJJ, acn0rdjnP.,' to the ap~~11antts_clai~, thechildren were not stPvinP: wi tr tne respondent. Fe. cla.iroed tr-at the c'.rildren were stai:r:i nP' in 'l'Pb0re. with tri.e reRpon0ent' s parents wrjJe the T"'Sp0n0ent ii:; Rta,rj_ng in Dar es Sa1s.8m where the appeJ.Jent is RS well stairin.g. 'I'he resp0n0.ent a.lso briefly add:ressen. the court. She stronP-J·y resistecl tJ,,e appP.J) a:n~ 's prairerl for cust0d,r of the chi] arcm 0n the ,q"r("li.md that the criJ dren are n.ot onJ ,.r liaT'JJY to sta.v with her parents in Tabora where thev have been sta.vj_nP.' -fr0rn the t:ime prior to their separ~tion a.nn. ~ ivorce, · but i +, is Ei 1s0 in t}'le inter~st and t:he welfare, of tr-e ~ildren. Sre further cJ aimed trat from 198"3 to date, the appel1ant has not been ccintributin,,:,: en~rthinP: to- wards the matntanance of t:he

children c1,:rart frnm two (2) bars of soap alil.d a blanket wrich the appea.lant once proirideo • Ottlerr,.rise, the ehildren have been maintained bv :berself, so ....•. /3. - 3 - the resprmder,t claimefl • ("In the mitrjmN1 i?l assets, t1"e responrl_ent :reiterutefl trP, fp,r.t tr~ 1". t1-,e court record srou.J.d be?r testirn0ny in trgt ·nt the rePrin,g of trie proce0di.n.Q."s be:fC'.'r~ tl'ie Distrjct Court alJ. t:i-,8 assets w,,..j_ch were/ joil\tly acq_ui:r.e,, by the ar,peJlRnt a.na the responHent during the sustenance of their marriage were duly listed I .. - down• by the J.)istrict Magistrate. ghe further a.rgu8d t}.-lat on the bB,sis of such a J.i st as orcl.ered bv t}'ie District Oourt the division of ttie me. trim<mia.l assets was to be effecteo. As she had <lone be+'ore t},e District 00u.rt, she deniea ever i ,~ }-,avi;ng ta.Jren t3.ny o-f t},e properties from thei.r me.t11itncmial home a.rguing- that she coula not do thA.t wi th0ut being noticed. bv the representEc.ti,res -from the e"°-')ncilia.t:i on 'Board ana. the ten oeJl leader who were present thereat. From a close scrutiny of the low8r court's ~•ord • as·; weli° I . . . a.s the aubmissi on.s marle before this court at t)'\e he8,ring of the ap~eal, Jam quite settJed in ~v ~ind·t~at t~~ lea~ned D.i.strj_ct Magi::itrate a.rriven at· a co-·rect conclusion in re.r,,~rd to the cus+,0rhr cif the c.hildren. On the

ev:i""ence· C'ln recorn, thei:-e can be no aoubt- thr:it it was j_n the interest-o+- tr>e children's we) fa,..e to gr::1rit custna.", t0 t~e mC1tl--er, the responrlent. As fl.1rea~ir i:n<Hcater1, tre crildren in question '~ are ~ow aged. 10 a.nn 12 yPars respectively~ '?.!his is an a~e which as sighly. in~icatea bv the J.e.a:r.necl District ~1:1.gistr8.te at t'he triF.!,l, is above tre seirer (7) Y<i!8rs prescti1,ed under ·;":·section 125 ( 3) of the Marriage Act, 1971 below wJ-iich there is a. rebuttable presumption triat it· is for. tr,e goer1 of tJ:ie #lildren in custod 1 r of their motr,er. l'fonetheless, d:es:ri te the ages of tl-ie el-iD dren in question wherej_m the above stated rebuttable presuil'\ption no longer '.holo.s t~e, st ill t}'le welfare of the crildren is tre P,uia in,g principle ev-en at th~ ages of 10 and 12. With t}, is ~iding principle in mind and takin~ into account thP fact trat the two children have been in the custody of the responr!ent fr0rn tre tj_me prior to tbe separation between the ap:reJlcint and tl-ie responnent and the fact the.t the respcmi!ent in a,o:reernent with the appelJa:nt J,,F.1.d arrangen :for tli~ criilcl.rrm's stav wjt}'!•tre respondent's I ( ., I I I :ents in Tabora, I am inelined to ~~e view that neither has there been any mate!'ial change in the circumstances of the case to warrant any variation in the order of maintance· nor

is it •reasonable or in the interest of the welfare of the children to ~ffect any variation in the order at this stage. HOwevP-r, as provided for under section 133 of the Law of Marriage Act, 1971, it should be noted that the parties are at liberty Of anytima prior to the chi\drens attainment of ,. · ., .,,..;:irs of age to move the court of competent ju•i.sdic:tion to vary or rescind the order for the mai••ope of the chiUiren -should circumstances warrant., The or.der of maintance for shs. SOO/= per month I towards the maintance of the two ehi+dren by the appellant is, in my view hardly enough fo_r the sustainance of the children• s upkeep particulary in view of the current rise in the costs , of ··11ving. O. this point, I have taken not Of the fact that . ·~ the respondent is an eml'loyee of the Tanzanian Zambia Ra.1.lways Authority earning a monthly salary who, in any event has not expressed any eomplail*'ot disatisfaction against the. amount as ordered by the District CQurt, I would, in that respect laave the order of mair.":~•w-:Q undisturbed. In regard to the mntrimonial assets, the lower court's record speaks for ittte1f if I may say soe On record, it is clear ~ ,.·, that . apart from what the respondent had stated in her evidence the appellant ~t only accepted the claim by the Pesponde.~t regarding the items which were jointly acquired by the appellant and the

respondent during their marriaqe but also. identifie_d I and enumerated the respective items among other in the matrimonial house. These were the ilcVl\8 listed down by the learned Distriet Magistrate in the court record. In accordance with the principles enunciated under section 114 (1) of the Law of Marriage Act, 1971, the property having been_ aequired as a result Of the joint effort ;, of both the appellant and the respondent during the sunsistance of their marriage, the lea~ned District Maqistrate was justified in ordering the division of the property whose list was to be present~d before the District Court after a prOper evaluation and having had due regard to the applicablP and relevant circumstances Of the caseo Tht~ appellant havipg gone as far as identifying thP. respP-ctive items from amongst the assets at the trial before thP. lower court which were jointly acquired o•••/5