Barnaba Augustin vs Evelina Filmatus

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA PC MATRIMONIAL APPEAL NO. 13 OF 2023 (Arising from Civil Appeal No. 31 of2023 District Court Of Muieba; Originating from Matrimonial Cause No. 6 of2023 Kamachumu Primary Court) BARNABA AUGUSTIN........ .......... ........................... APPELLANT VERSUS EVELINA FILMATUS......... .............. ........... ................... ...... RESPONDENT JUDGMENT 12th and 26th July, 2024 BANZI, J.: The appellant and the respondent were husband and wife since 2011 and they were blessed with three issues; two daughters and one son. Their marriage was finally dissolved by Kamachumu Primary Court (the trial court) upon being satisfied that, the same was broken beyond repair. Consequently, the appellant was given the custody of two daughters who by then, were above seven (7) years old, while the last child aged one year and seven months was placed under the custody of the respondent. In addition, the appellant was ordered to pay Tshs.35,000/- per month as maintenance for the last child. As far as matrimonial assets are concerned, the appellant was given a shop while the respondent was given a farm located at Bishulo area. Page 1 of 10 Dissatisfied with the distribution of matrimonial properties and custody of children, the respondent appealed to the District Court of Muleba (the first appellate court) faulting the findings of the trial court. In its final verdict, the first appellate court upheld the findings of the trial court on division of matrimonial properties. However, in respect of custody of children, it reversed the decision of the trial court and placed all three children under the custody of the respondent on the reason that, as the older children are girls who are about to undergo biological formation, it is better to have guidance of their mother. Upon granting custody of all children to the respondent, the learned magistrate upheld the order of the trial court for the appellant to pay Tshs.35,000/= per month for each child. The appellant was permitted to have access to the children at any time subject to notification to the respondent. Aggrieved by the orders of the first appellate court, the appellant has knocked the doors of this court armed with four grounds of appeal seeking the court to quash and set aside the judgments, orders, decree and proceedings of the lower courts thus: 1. THAT, the District Court erred in law for deciding the case without to take into consideration the fact that the parties did not attend at the Marriage Conciliation Board before taking the matter in the Primary Court, that the Page 2 of 10 certificate for conciliation was not tendered during hearing in the Primary Court. 2. THAT, the District Court erred in iaw and facts for ordering that the children to live with the Respondent without consider that the Respondent had no capacity to live with the said children, to the extent that the said children lives (sic) with the grandparents. 3. THAT, the District Court erred in law and facts by dividing the matrimonial property (shamba) unfairly benefiting the Respondent without regard that the same was acquired by efforts from both parties. 4. THAT, the both Trial Court and 1st Appellate Court erred in law and facts for dividing the property which does not exist, i.e., shop. At the hearing, both parties appeared in person, unrepresented. In his submission, the appellant abandoned the first ground and submitted on the rest of the grounds. Submitting on the second ground, he contended that, it was an error for the first appellate court to grant custody of all children while they are all grown up as the first is 12 years, the second is 10 years and the third is three years. In respect of the third ground, he claimed that, the farm was acquired by joint efforts, hence, he deserved his share as he contributed to its acquisition. It was an error for the court to give that farm to the Page 3 of 10 respondent alone. He also complained on the shop that was distributed while it does not exist. In response, the respondent submitted that, the first appellate court properly granted custody of children to her because they are staying with her all the time. She prayed for custody and maintenance orders to be maintained until their children attain the age of majority. She further complained that, there is no love on the side of the appellant and his relatives. In respect of the third ground, the respondent argued that, the farm was fairly distributed to her because the appellant remained with the house which they built together. Concerning the shop, the appellant alleged that, it still exists as the same was acquired in 2012 while they were together. In a brief rejoinder, the appellant insisted that, the shop was opened by his father before he met the respondent, thus it is not a matrimonial property. Besides, he contended that, the shop was closed before the dispute arose and at the time when the order was made by the trial court, it was no longer existing. He also insisted to be granted custody of his children. After receiving the submission of both parties, and considering that parties are still fighting for custody of children, I found it prudent to summon the two girls for purpose of obtaining their wishes pursuant to section 125 Page 4 of 10 (2) (b) of the Law of Marriage Act [Cap. 29 R.E. 2019] ("the LMA") before final determination of the matter. Upon being asked by this court where would they wish to stay, both stated that, they wish to stay where they are staying now, with their mother at the house of their grandparents. They don't wish to live with the appellant because according to them, his parents do not love them and their cousins usually insult them whenever they go to fetch water. Having considered the submissions from both sides and having perused the records of the lower courts, the issues for determination are one, whether the matrimonial properties were fairly distributed and whether variation order for custody Of children was justifiable. Starting with the first issue which is the gist of third and fourth grounds, it was the contention of the appellant that, there was unfair distribution of matrimonial properties especially the farm situated at Bishulo area which was given to the respondent alone while it was acquired by their joint efforts. Also, the shop that was given to him is no longer existing; it was closed even before the quarrel between them had occurred. According to section 114 (1) of the Law of Marriage Act [Cap. 29 R.E. 2019] (the LMA), the court is empowered, when granting or subsequent to Page 5 of 10 the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during subsistence of marriage by their joint efforts. In doing so, it has to consider among other things, the extent of contribution made by each party in money, property or work towards acquisition of the assets. See section 114 (2) (b) of the LMA. Also, it was held in the case of Gabriel Nimrod Kurwijila vs Theresia Hassan Maiongo (Civil Appeal No. 102 of 2018) [2020] TZCA 31 (20 February 2020) TanzLII that, the extent of contribution by a party in matrimonial proceeding is a question of evidence. In the matter at hand, neither the appellant nor the respondent adduced any evidence to prove his or her contribution towards acquisition of the farm at Bishulo area during existence of their marriage. However, it is undisputed that, the farm in question was acquired during the subsistence of their marriage because both parties admitted that, the same was acquired when the two were still husband and wife. Furthermore, although the respondent contended that, there is a shop at Kamachumu, she did not elaborate in details how she contributed towards its acquisition and if at the time when the matter was before the trial court, it still existed. On his side, appellant in his testimony contended that, when he completed school, he worked for his father in the shop. This in itself establishes that, the shop in Page 6 of 10 question is not the property that was acquired during subsistence of their marriage and hence, it is not matrimonial asset. Apart from that, the evidence of the appellant revealed that, the shop in question no longer existed as it had been closed three years back. In that regard, as rightly submitted by the appellant, the said shop is not matrimonial asset and it no longer existed at the time when the matter was before the trial court. Thus, the trial court before awarding it to either party, was required to be satisfied on its existence and if the same is a matrimonial property. Concerning the house they were living, there is oral and documentary evidence proving that, the house in question is the property of the appellant's father. For that case, and as rightly found by the trial court, the house in question is not a matrimonial property. In the circumstances, I am of the considered view that, the farm situated at Bishulo area is the only matrimonial property subject to distribution between parties. Qn that basis, and since it is the only matrimonial property, it was improper for the trial court to give that farm to the respondent alone, without considering that, the same was acquired by their joint effort. Thus, it is the finding of this court that, the matrimonial asset was unfairly distributed. In respect of custody of children, it is an established principle that, in determining on whose custody children should be placed, the court must Page 7 of 10 take into account the welfare of that child by ensuring that, where the child Is placed is safe; free from any harm or abuse, there is conducive environment for him/her to live with harmony and he/she will be cared. Also, where the child is capable of explaining himself, he should be asked his wishes on whose parent he/she is comfortable to live with. However, for the child below 7 years, there is a rebuttable presumption that, he/she should be placed under custody of his mother. See the case of Halima Kahema vs Jayantilal G. Karia [1987] TLR 147. In this case, the first appellate court before reversing the order of custody of two girls, it considered their best interest. According to the first appellate court, as the older children are girls who were about to undergo biological formation, it found it better to have guidance of their mother. The appellant in his submission claimed to be given custody of two girls because they are grown up. As alluded above, this court had opportunity of summoning the two girls in order to receive their wishes. Upon being asked, both girls wished to stay where they are now with their maternal grandparent under the custody of their mother. Under the prevailing circumstances and since the girls are contented and Comfortable with where they are staying now, I don't find any compelling reason to change their place of abode by forcing them to stay with the appellant. Besides, by doing so, it will expose Page 8 of 10 them to discomfort life surrounded by scorner cousins. Since the first appellate court considered the best interest of the two children before it varied the custody order and considering their wishes, I don't find it prudent to vary the custody order issued by the first appellate court. Moreover, as the appellant did not contest if he has no means to pay the maintenance amount and as the respondent did not raise any concern that the awarded amount is inadequate, it is the finding of this court, the maintenance amount of Tshs.35,000/= per month per each child is sufficient. That being said, the appeal is partly allowed to the extent shown above. The order of the trial court in respect of division of farm located at Bishulo area to the respondent is varied and the same shall be divided equally between parties. The order of the trial court granting the shop to the appellant is quashed. The custody order in favour of the respondent and the maintenance order of Tshs.35,000/= per month per each child against the appellant are hereby upheld. Owing to the nature of the dispute, I make no order as to costs. It is accordingly ordered. I. K. BANZI JUDGE 26/07/2024 Page 9 of 10 Delivered this 26th day of July, 2024 in the presence of the appellant and respondent both in person, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Peace Musasa, RMA. Right of appeal duly explained. I. K. BANZI. JUDGE 26/07/2024 Page 10 of 10