OCR TANZLII CONSOLIDATED PC CIV APPEAL NO

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CONSOLIDATED PC CIVIL APPEAL NO. 6905 AND 6857 of 2024. (Arising from Matrimonial Appeal No. 121 of2023, Originating from Matrimonial Cause No. 640 of2022 in Temeke Primary Court at One Stop Judicial Center) BOSCO SEVERINE CHAILA.............................................. APPELLANT VERSUS TUSAJIGWE BOSCO CHAILA..................................... RESPONDENT JUDGMENT Date of last order: 09/10/2024 Date of Judgment: 12/11/2024 OMARI, J. Dissatisfied with the decision of the Temeke Primary Court at One Stop Judicial Centre at Temeke in Talaka No. 640 of 2022 Tusajigwe Bosco Chaila appealed to the District Court of Temeke at One Stop Judicial Centre at Temeke through Matrimonial Appeal No. 121 of 2023 frdhting seven grounds of appeal. The said'seven grounds were later consolidated to make the following four grounds: 1. That the trial court distributed the matrimonial properties unequally while disregarding the contribution of. each. 2. The trial court left some properties undivided which were mentioned as matrimonial properties to wit: Plot No. 46 Block 5 located at Kigamboni, Had Miiiko No. 6MNY/319 located at Soiya KHimatinde Manyoni Singida, House No. MKB/KBJ/101 and 110 located at Kibonde maji B, House No. 102 located at Kibonde Maji B, Unsurveyed land estimated 49 hecters located at Soiya Manyoni Singida, Land at Soiya Kiiimatinde unsurveyed measuring 100 hecters located Mvumi Manyoni Singida, 70 heders of landing at Mvumi Manyoni Singisa, Land Rover T898ANK and pigs. 3. That tile division of matrimonial properties is bases on assumptions and not in percentage. 4. That the trial court failed to order the Respondent to pay maintenance and house rent to the Appellant. The first appellate court broached the issue as to whether the trial court was just and proper in dividing the matrimonial properties with regard to the contribution made by the parties. The learned magistrate first established that both parties had contributed to the acquisition of the properties. However, he also found that the court's distribution was not fairly made with regards to the contribution made by each party as there was no justification by the trial court as regards the distribution vis a vis the parties' contribution. It is on this basis that the first appellate court went on to vary the trial court's order of distribution the way it did. Thus, it allowed the appeal only to the extent of varying the distribution of matrimonial properties dismissing the remaining grounds. Both parties are now dissatisfied, and have filed appeals as both are aggrieved with the decision emanating from Matrimonial Appeal No. 121 I. of 2023 in the District Court of Temeke at One Stop Judicial Centre Temeke. For ease of reference, Tusajigwe Bosco Chaila (hereinafter referred to as Tusajigwe) has filed PC Civil Appeal No. 6905 of 2024 and Bosco Severine Chaila (hereinafter referred to as Bosco) has filed PC Civil Appeal No. 6857 of 2024. Tusajigwe Bosco Chaila has advanced the following four jgrounds of appeal: 1. That the District Court of Temeke at Temeke at One Stop Judicial Centre Temeke as the first appellate court erred both in law and fact by her failure to analyse the evidence tendered in the trial court as a result reached into a unjust decision for failure to issue order of maintenance to the Appellant before divorce. 2. That the District Court of Temeke at Temeke at One 'Stop Judicial Centre Temeke erred in law and in fact when it divided the matrimonial properties by assumption instead orw dividing by ii rations or percentage as per the parties contribution towards their acquisition hence reach to unequal division of fAe|| matrimonial properties. 3. That the District Court of Temeke at Temeke at One\Stop Judicial Centre Temeke erred in law and in fact by upholding the trial court's order of division of matrimonial properties to remain undisturbed save for the variation made while the trial court order of division of the assets was not equal to the parties although both equally contributed to their acquisition and development of the said matrimonial properties. 4. That die District Court of Temeke at Temeke at One Stop Judicial Centre Temeke erred in law and fads by leaving out some matrimonial properties undivided though they were mentioned during trial as matrimonial properties which include the following: i. Unsurveyed Plot of land located at Mwongozo Kigamboni. ii. Unsurveyed plot of land estimated hectares (hekari) 49 located Sofya Manyoni Singida. Hi. Unsurveyed plot measuring hedares (hekari) 70 located at Mvumi, Manyoni Singida. On the basis of the above grounds Tusajigwe is praying for orders that the Judgment and decree of the District Court be partly reversed to the extent that affects the division of matrimonial properties and the properties be divided equally. She is also praying that the Respondent be ordered to pay maintenance of the Appellant before divorce up to the date of the judgment and, that he be ordered to pay rent of the house occupied by her up to the date of judgment. Furthermore, she is praying that all properties that were left undivided and those not mentioned in the judgment be included in the list of matrimonial properties and divided equally among the parties. Meanwhile, Bosco also filed four grounds of appeal to wit: 1. That, the honourable distrid court magistrate erred In law and fad for failure to examine and analyse properly evidence as given in the primary court resulting into erroneous decision. 2. That the honorable district court magistrate erred in law ana ract for failure to consider that the Appellant had contributed fhore in the acquisition of matrimonial assets than the Respondent resulting into unproportioned division of matrimonial assets. 3. That the honourable district court magistrate erred in iawpnd fact for failure to observe the rules of procedure for welcoming issues not determined In the primary court. 4. That the honourable district court magistrate erred in iaw\ and fact for failure to answer the ground of appeal argued for and against the appeal resulting into an erroneous decision. 1 On the four grounds of appeal, he prayed that the appeal be allowed and the decision of the District Court of Temeke at One Stop Judicial Centre Temeke be quashed and set aside. At the hearing Tusajigwe was represented by Magreth Kissbka learned advocate while Bosco had the services of Nickson Ludovick also a learned advocate. The appeal was argued by way of written submission. I shall commence with the parties' counsel submission in PC Civil Appeal No. 6857 of 2024 then go to PC Civil Appeal No. 6905 of 2024. Mr. Ludovick argued the first and second grounds jointly, submitting that it is a principle of law under section 110 of the Evidence Act; and case of Mary Agness Mpelumbe v. Sheikha Nasser Hamad Civil Appeal No. 136 of 2021 that he who alleges must prove. He aroued that Basco contributed more than Tusajigwe in acquisition as can be. seen in the proceedings of the trial court and she did not show how she! contributed. What is more, she showed no evidence of being engaged in businesses by way of licenses and the like, and thus could not be trusted as to the existence of the business as it was stated in the case of Leornad Dominic Rubuye T/A Rubuye Agrichememical Supplies v. Yara Tanzania Limited, Civil Appeal No 219 of 2018. Counsel argued that, not only is Tusajigwe given more properties than Bosco as she was given all the properties that are in her name in addition to the other properties despite not contributing to the extent warranting such distribution a fact that was not considered by the first appellate court. He also argued that in trial Tusajigwe had stated that she did not know the extent of her contribution. As regards the third ground of appeal counsel complained that the house at Manyoni and Sollya Farm Kilimatinde were neither part of the division in the primary court nor part of the record yet the district court divided them thus welcoming issues not determined in the trial court. On the fourth ground of appeal Mr. Ludovick submitted that according to the case of Nyakwama Ondare @Okware v. The Republic, Criminal Appeal No. 507 of 2019 and that of France Michael Nyoni v. Republic, Criminal Appeal No. 505 of 2020 the appellate court is bound to consider the grounds of appeal before it, address and resolve the complaints of the appellant jointly or separately depending on the circumstances of the case, failure of which renders the judgment a nullity. He submitted that instead of dealing with the 7 grounds of appeal the district court raised one issue and disregarded the other grounds of appeal without giving reasons, making the judgment nullity and necessitating the same to be auashed and set aside. He then prayed for the appeal to be allowed. In reply, Ms. Kissoka commenced her submission stating that; the district court was right to vary the division of matrimonial properties biased on the extent of contribution made by parties in the acquisition of the properties. She asserted to hold this view because the trial court heard the parties on how the assets were obtained which led the first appellate court to recognize the joint efforts of the parties and varied the division though refrained from making it equal. She argued further that Tusajigwe's share is based on her contribution both domestically and through economic activities as per the trial court's proceedings and as elucidated lin the cases of Bi Hawa Mohamed v. Ally Seif [1983] TLR 32 and Bibie Maurid v. Mohamed Ibrahim [1989] TLR 162. Furthermore, Ms. Kissoka disputed the assertion that TusajogWe was given more properties than Bosco stating that the trial court acknowledged the contribution of both parties but failed to evaluate the said contribution vis a wsthe division; Likewise, the allegation that she did not know how she contributed is not true because this is reflected her testimony and the judgment. Counsel argued further that it is also recognized by the first appellant court. She contended that Bosco and his advocate did not refute that she worked and was doing business at the trial. Then, according to counsel, these cannot be issues before the second appellate court. Replying to the third ground of appeal Ms. Kissoka explained that, what Bosco was referring to as the house that was acquired jointly and that Hati Miliko ya Kimila No. 66/MNY/3191 was tendered during the hearing and was subject to division by the first appellate court; thus, not a new issue. She then argued on the last ground of appeal stating that the first appellate court considered all the grounds of appeal in the manner they were in the parties' submission. Counsel then prayed for the appeal to be dismissed for lack of merit. In respect of PC Civil Appeal No. 6905 of 2024, Ms. Kissoka commenced her submission with an argument that even after it had re-evaluated the evidence the first appellate court did not divide some of the properties equally. She contended that the first appellate court after scrutiny did not consider the evidence as in the case of Stanslaus Rugaba and A.G v. Phares Kabuye [1982] TLR 338 as it came up with improper division that was unequal. Counsel also made reference to the case of Hassan Mzee Mfaume v. R [1981] TLR 167 and sought for this court to step onto the shoes of the first appellate court and divide the assets equally in accordance to the parties'joint efforts and after re-evaluation of the evidence come to its own conclusion as per the cases of Director of Public Prosecution v. Jafari Mfaume Kawawa [1981] TLR 149 and Salum Mhando v. R [1983] 170. When jointly submitting on the second and third grounds oflappeal Ms. Kissoka argued that the first appellate court varied part of the' trial court's decision by concentrating on issue of the extent of contribution made by the parties. She argued further that the first appellate court recognized the joint efforts but failed to correctly adjust the model of division, Tusajigwe not only took care of the children but also engaged in commercial and domestic activities for the development of the family entitled her to an equal share. Counsel cited the cases of Bi Hawa Mohamed v. Ally Seif [1983] TLR 32 and Bibie Maurid v. Mohamed Ibrahim [1989] TLR 162 to cement her argument. Ms. Kissoka further submitted that the properties that were left undivided without ascribing any reasons by the trial court and by the first appellate court. These are the unsurveyed plot at Mwongozo, Kigamboni, an unsurveyed plot of land estimated at 49 hectares at Solya Manyoni Slngida and a unsurveyed plot measuring 70 hectares at Mmvumi Manyoni Slngida. According to counsel, these assets were wrongly left undivided. And, that the first appellate court unproportionally distributed the properties without assigning reasons as to why Tusajigwe got a smaller portion contrary to her contribution. Counsel argued that she was given only 30% of the Mining Plot located at Londo Manyoni Singida (QSD 123/3) while the Respondent received 70%. She argued further that while the district court appreciated Tusajigwe's contribution to the jointly acquired assets it failed to award equal distribution contrary to section 114 of the Law of Marriage Act, Cap 29 RE 2019 (the LMA) and the cases of Bi Hawa Mohamed v. Ally Seif (supra) and Bibie Maurid v. Mohamed Ibrahim (supra) where it was held that the principle underlying the division of matrimonial property is one of compensation. Submitting on the fourth and last ground of appeal Ms. Kissoka explained that Tusajigwe prayed to be given maintenance and payment of rent since Bosco had deserted her. She insisted that the first appellate court was wrong to desist from entertaining this ground as Bosco had a duty to maintain her as per section 63(a) of the LMA thus should have been awarded maintenance as per section 115(1) of the LMA which was not awarded by the trial court. Counsel concluded her submission by praying that the properties be equally divided. Contesting the grounds of appeal as argued by Tusajigwe's counsel Mr. Ludovick commenced his submission by asserting that this court lacks the jurisdiction to entertain Tusajigwe's appeal for it is based on properties that she is alleging to be matrimonial but were neither existing nor proved to be existing during the trial. These are new issues and facts making her in contravention of the case of Hassan Bundala@)Swaga v.|j Republic, Criminal Appeal No. 386 of 2015 and Hadija Ally v. George Masunga Msingi, Civil Appeal No, 384 of 2019. He then went on to submit in on the cross appeal stating that it was not true that she got a few houses while he got seven houses. Citing Rule 2(1) of the Magistrates Court (Rules of Evidence in Primary Courts) Regulations GN. No. 22 of 1964 and the case of Berelia Karangirangi v. Asteria Nyalwambwa,Civil Appeal No. 237 of 2017 he argued that it was she who had the burden of proving that he got more, that is the seven houses. He also refuted that Bosco got more frames in the division. LiKewise counsel refuted Ms. Kissoka's argument that her contribution to the acquisition was not considered stating that she did not prove to work or know her contribution. He cited section 114 of the LMA and the case of Sixbert Bayi Sanka v. Rose Nehemiah Samzungu,Civil Appeal No. 68 of 2022 which । I provides guidance for division of property. Furthermore Mr. Ludovick argued that although Ms. Kissoka claims that her client mentioned some properties and some title deeds of what she calls matrimonial properties but the same were never recorded by the court. According to;i counsel, the I legal position of the sanctity of court records was stressed in I the cases of Nestory Ludovick v. Merina Mahindu, PC Civil Appeal No. 96 of 2020 and Halfani Sudi v. Aibeza Chichi (1998) TLR 527. As for the question of maintenance and rent payment counsel argued that the same was never claimed in the trial court and, thus could not be raised now, and even so the first appellate court could not order payment of maintenance and the rent debt not proved during trial. Lastly, counsel explained that the allegation of not dividing some of the properties is untrue because the mining site at London! Manyoni is the same land that contains 15 frames at London! Manyoni as referred to on page 14 of the judgment. The remaining properties that is the Kilimatinde and Mwandege properties were as per page 15 of the judgment of the trial court not matrimonial properties and thus could not be divided. He then went on to pray that the cross appeal be dismissed for lacking merit and that the decision of the trial court be left to stand. Having considered the rival submission by the advocates the issue for my determination is whether the appeals have merit. The bone of contention in both appeals in the manner in which the matrimonial properties were divided and how the two lower courts arrived at that decision. In order to arrive at a decision, I scrutinized the record of both lower courts casting an extra glance at the evidence that was adduced in the primary court and how it analysed and applied the same and how the first appellate court subsequently did the same. In the trial court, three issues for determination were framed; one of which was whether there were joint properties and how they were to be divided to the parties. To this end, the trial court listed what it considered the I matrimonial properties from page 7 through to 9 of its judgment, a list of I 27 items. The learned magistrate explained that he listed the 27 items and group of items because they were obtained during the subsistence of the I marriage and by the parties' joint efforts. As part of the analysis of the evidence before him the trial magistrate observed: । I " Hapajawa na uthibitisho wa mchango wa moja kwa moja kama wa kifedha kutoka kwa mdaiwa katika upatikanaji wa mail lakini kama mke na mama hakuna shaka kwamba afikuwa mchango mahsusi" It is further stated that Tusajigwe could not recollect how she contributed but stated she was a wife and mother and had also worked at Heinken Chemicals. Guided by the cases of Bi Hawa Mohammed v. Ally Seif (supra} and Safia Hamad Tabiade v. Said Ally Mchanama, Civil Appeal No. 90 of 2019 the lerned trial magistrate recognized Tusajigwe's role as a wife and mother, farming and livestock keeping as well as the husbands work and various economic ventures and went on to divide the properties 1 amongst the parties. In the said division, the learned magistrate stated: " Kwa kuzingatia sababu ainishwa kuhusiana na mgawanyo wa mali uamuzi wa mahakama ni kwamba: a) Mdaiwa apewe mali zifuatazo: (i) Nyumba katika eneo lenye Leseni ya Makazi Na. TMK/SDL/SDL/11/72 SandaH, Temeke-Dar es Salaam/ Kama ionekanavyo katika kielelezo P19. (ii) Ng'ombe 50 (Hi) Mbuzi 50 (iv) Vyombo vya ndani: Vitanda 12, Magodoro 14, Solar 1 na Vyombo ya kupikia (v) Gariaina ya Land Rover Na. T527BCE (vi) Gari aina ya Land Rover Na. T818ANK(vii) Trekta Na. T 302 BUT (viii) Cages za kufugia kuku (ix) Kiwanja kilichopo Chamwino, Dodoma (ukubwa mita 70 kwa mita 70)/ inaonekana katika kielelezo P8 (x) Kiwanja kimoja kilichopo Chamwino kilicho nunuiiwa kwa TSh. 1,600,000/= million moja na iaki sita (hakija pimwa)/ Inaonekana katika kieieieo P9 (xi) Kiwanja Kilichopo chamwino, kilichonunuliwa kwa Tsh. 1,300,000/= miiioni moja iaki tatu (hakijapimwaj/kinaonekana kifeiezo PIO (xii) Kiwanja kilichopo Chamwino kilichonunuliwa TSh. 1,600,000 milion moja na iaki tatu (ukubwa mita 82 kwa mita 68)(hakijapimwa)/ Kienekanacho katika Kielelezo Pll(xiii) Shamba lenye ukubwa wa ekari 19 HH/opo Chamwino, Dodoma iiiinunuiiwa kwa Tsh. 7,600,000/= miiioni saba na iaki sita mwaka 2017/kama inavyonekana katika kielelezo P12 (xiv) Shamba lenye ukubwa wa ekari 13 iiiiionunuiiwa kwa Tsh. 5,200,000/= miiioni tano na Iaki mbili lililopo Chamwino,Dodoma/ Kama ionekanavyo katika kielelezo P13 (xv) Kiwanja chenye ukubwa wa mita 70 kwa mita 70 kilichonunuliwa kwa Tsh. 1,300,000/= miiioni moja iaki tatu kilichopo Chamwino, Dodoma/Kama kinavyonekana katika Kielelezo P14. (xvi) Bata 30 na Kuku 1000 (xvii)Mpunga gunia 400 mahindi gunia 50. b) Mdai apewe mali zifuatazo: (i) Gari aina ya Kfuger T570 DWX (ii) Karasha ia kusagia madini (Hi) Nyumba katoka kiwanja Na. 633Kitaiu 71" Yombo, Temeke Dares Salaam (iv) Fremu 15 ziiizopo London! Singida (v) Nyumba mbiii (Na. 281 na Na. 283) Mbagaia Zakhemu, Temeke Dar es Salaam (vi) Shamba la Mwandege Na. 755, 756, na 757 (vii) Kiwanja Na. 498 Kitalu'T' Yombo, Temeke Dar es Salaam (viii) Mashine ya kusaga (ix) Ngombe 100 (x) Mbuzi 50 (xi) Trekta Na. T472APA" As already explained, dissatisfied with the above distribution Tusajigwe filed Matrimonial Appeal No. 121 of 2023 with grounds resonating around the division of the properties, that is; the division was not equal and is not in accordance percentage of contribution; left out some matrimonial properties that were mentioned but not considered in the judgment, Bosco got 7 houses while Tusajigwe got 1 without considering her contribution; I that she did not get any of the 28 frames that is 13 in Vituka and 15 in London! without considering her contribution. After canvassing the submission of both parties, the first appellate court I went back to the basics and observed that as per the Sixbert Bayi Sanka v. Rose Nehemiah Samzungu (supra) case, the parties must establish the extent of contribution made by each to enable the court to fairly and justly determine the respective apportionment of the shares. The first appellate court then took to the record and the parties' testimonies as regards the matrimonial properties, observing that Bosco was! of the view that some of the properties were mentioned but not matrimonial properties. The magistrate then went on to discuss what constitutes .matrimonial properties as per the LMA and precedent. As for the division of the said properties once ascertained the district court also sought guidance from I the cases of Bi Hawa Mohamed v. Ally Seif {supra} and Nimrod Kurwijila v. Theresia Hassan Malongo, Civil Appeal No. 102 of 2018. He then went on to state: I i "In resolving the issue of the extent of contribution made by the parties in this appeal, the court will mostly rely on the evidence adduced by the parties to prove the extent of the contribution. This was also stated in the case ofShaki/a Lucas v. Ramadhani Sadiki, Civil Appeal No. 349 of2020 Court ofAppeal Mwanza (unreported). In addition to that it has been stated by the higher courts that the extent of contribution by a party in a matrimonial proceeding is a matter of evidence. Mere assertions cannot therefore be entertained. Once there is no evidence adduced to that effect, the appellant cannot blame the court for not considering the same in its decision " I have quoted this very extensive passage for it explains what the court considers when dividing matrimonial assets and how the same is a function of evidence and not mere assertions, averments or conjuncture. This is essential since as the first appellate court the district court is charged with the obligation to go back to the evidence and re analyse it and rehash it where appropriate. This is what the first appellate court did as can be seen in its judgment. After concluding that Tusajigwe's complaint as regards the distribution can be entertained because the learned trial magistrate did not express the basis of the distribution. The district court then went on to observe that while a house wife's contribution can be taken as minimal compared to one who works in addition to being a wife as was observed in the case of Helmina Nyoni v. Yeremia Magoti, (Civil Appeal No. 61 of 2020) [2022] TZCA 170. In the present case, Tusajigwe was not only a house wife but also a business woman and was employed. This, according to the district court means both parties contributed to the acquisition of thef properties. He then went on to state and order as follows: "Being satisfied that the distribution is not fairly made with regard to contribution made by each. Having said, I have confidence to vary the trial court order ofdistribution as follows: - A farm with 12 hectares located at KHimatindeSingida is also a matrimonial property subject to be divided equally. This is shown under item "0" at page 8 Ibf the typed judgment of the trial court that it was acquired jointly by the parties hence subject to be divided between 50/50 shares. Plot No. 6 at Block E Mkuranga is also a matrimonial property and is to be divided equally. This is shown under item "Q" at page 9 of the typed judgment of the trial court that it was acquired Jointly by the parties hence subject to be divided between 50/50 shares. The trial court at page 9 of the typed judgment clearly stated that the above properties were Jointly acquired hence it should be divided a? indicated above. The order of division of 15 frames awarded to the respondent is varied. The appellant to have 5 frames whereas the rest is left to the Respondent. I said so because since the trial court has acknowledged that it was acquiredjointly there was nojustification given on why the appellant was not given share among *15 business frames. It is the naked truth that the appellant was unjustly denied hence 5 frames will make justice smile on her side. Houses located at Plot No 281 is varied and is hereby given to the appellant whereas the respondent ,to remain with a houses located at Plot No 283 Mbagaia Zakiem Temeke Dar es Salaam. Plot No 5 Block 46 located at Kigamboni /s| a matrimonial property. The same can be seen deary under page 38 of the typed proceedings of the trial court where a title of the same was tendered in court and was not contested by the respondent. There is also no Justification on why the trial court did not include this property during the division of the property acquired jointly. It is therefore divided between 60% to the respondent and the appellant to have die remaining 40% shares. In the course of carefully scrutinizing the evidence, I have noted that and as allured by the appellant there are other two houses located at Solya Village Singlda that were not considered by the learned trial court magistrate. The same is clearly shown underpage 37 oftiie trial court typedproceedings. The so called had ya shamba was tendered in court and was admitted as Exhibit "Dl'j ie No 66/MNY/319. It deserves as well to be divided in the sense that each is given a house in that area. The rest of the division order made by the trial court shall remain undisturbed. The tides ofeach items to be surrendered to the awarded part during the execution process." This irked both parties, Tusajigwe is insisting her's was a contribution that warranted an equal division. At the same time Bosco is vehemently disagrees to the extent of suggesting that some of the properties were never dealt with by the trial court thus should not be in the purview of this court. Having gone through the proceedings of the lower courts and the evidence the parties adduced during trial I agree with the district court that Tusajigwe contributed to the acquisition of the matrimonial properties. However, as implied by the district court the said contribution could not have led the court to divide the properties equally. Considering her own admission that she does not recollect how she contributed and the fact that she was at some point employed at Heineken Chemicals and her taking part in keeping some livestock, which from the testimonies was a family venture more than her own business there is no other evidence|for the first I appellant court to act upon so as to make the division to be 50% to each of the parties. I have also gone through the alleged properties that were not divided by the district court, I have gone through the list of what the trial court listed as matrimonial properties and what was divided and the variance that was done and see no fault. The court could not have divided properties that do not belong to the parties or those that were not part of the proceedings in the primary court. As a result, I find the second, third and fourth grounds of appeal without merit and dismiss them accordingly. On the first ground of appeal, I have also gone through the trial court's record and in congruence with Rule 44 of GN. No. 310 of 1964 and GN.NO. 119 of 1983 the trial court after consultation with the parties on what is at issue and what is not recorded only three issues that werej in dispute between the parties. None of those issues was as regards maintenance or payment of the rent debt. It is on this basis that I agree with the district court that because this is an issue that was not tried in the tral court; it could not deal with the same and the same goes for this court as ;it concerns a matter that was not at issue at the trail thus, cannot be brought up at the appeal stage as per the case of Richard Majenga vslspecioza Sylivester, (Civil Appeal No. 208 of 2018) [2020] TZCA 227 wnere me Court of Appeal held: 'It is a settled principle of the law that at an appellate level the court only deals with matters that have been decided upon by the tower court' It is in that regard that I also find the first ground of appeal fielded by Tusajigwe without merit and dismiss it. This leaves me with the four grounds of appeal as fielded by Bosco. As regards the first two grounds of appeal which were argues jointly, having discussed what I have already stated above I find it futile to state that the district court as the first appellate court did not properly analyse the evidence adduced during the trial. The district court after having gone through the evidence reached its own conclusion that led to the variance of the division of the matrimonial properties albeit desisting from granting Tusajigwe's prayer for equal division. It is in testimony and not contradicted that Tusajigwe was a little more than a house wife and therefore had contribution that cannot be equated to one who is a housewife albeit there being no actual evidence of her contribution over the years, during trial Bosco did not do much by way of contradicting her testimony that she contributed to an extent. As already pointed out, while I concur with Ms. Kissoka that Tusajigwe had a contribution I do not subscribe to the argument that the said contribution warrants a 50% of all the ^matrimonial properties. This is why I find that the district court properly analysed and applied the evidence thus, varied the distribution to the extent already referred to above. Therefore, the first and second grounds of appeal as fielded by Bosco fail for lacking merit. Moving on to the third ground of appeal, having gone through the record of the trial court and having gone through the first appellate court's file I could not gather what is the new issue that the first appellate court । welcomed and determined without being determined by the! trial court. The first appellate court dealt with and divided the properties which were subject to the trial court, thus this ground of appeal fails. On the last ground of appeal which concerned the first apoellate court's failure to answer the grounds of appeal, I shall not let this ground detain me since the grounds of appeal encircled two issues, that is the division of matrimonial properties and that of maintenance and the rent debt. And, my reading of the submission by the parties and the resultant judoment clearly show that the court dealt with both issues. In that regard this ground also fails for lacking merit. Consequently, both PC Civil Appeal No. 6905 of 2024 and PC Civil Appeal No. 6857 of 2024 are found to be without merit and are dismissed. Due to the parties' relationship and the nature of this matter, I make no orders as to costs. It is so ordered. A.A. OMARI JUDGE 12/11/2024 Judgment delivered and dated 12th day of November, 2024 in the presence of Fabian Joseph advocate for Bosco Severine Chaila who is also present, Tusajigwe Bosco Chaila and Ms. Theresia Sheshe-RMA. A.A. OMARI JUDGE 12/11/2024