24 ocr TANZLII MARANDU

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB - REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 22846 OF 2024 (Arising from a decision of a District Court of Temeke at One Stop Judicial Centre in Matrimonial Cause No. 120/2023) CAREN MELKIZEDECK MARANDU.............................................. APPELLANT VERSUS DIDAS FRANCIS URIO............................................................. RESPONDENT JUDGMENT 21/11/2024 & 20/12/2024 M.MNYUKWA, J. Cruelty and extra marital relationships were the reasons the parties' marriage drowned into a pool of misunderstanding, as a result, appellant filed a matrimonial cause at the trial court seeking for dissolution of their marriage, division of matrimonial properties, custody and maintenance of their three children. It is on record that the parties had lived for more than 10 years from 2012 when they sacred their relationship into a holy marriage contracted under Christian rites. In these years of their marriage, they were blessed with three issues and several properties. Records bear testimony of the parties' efforts to reconcile their matrimonial disputes being in vain as evidently by Exhibit P16, a certificate from Kawe reconciliation board certifying that they failed to reconcile the parties. As I have stated hereinabove, the appellant was the one who initiated the matrimonial proceedings at the trial, and after a full trial, their marriage was dissolved and decree of divorce was granted. Matrimonial properties were distributed to the parties and an order for custody and maintenance was issued where, custody of the children was placed to the appellant, while respondent was ordered to pay monthly maintenance of Tsh. 300,000/=. This decision by the trial court did not amuse the appellant, who was aggrieved by the distribution of the matrimonial properties and an order for maintenance, she then decided to appeal in this court on three grounds that; 1. The trial magistrate erred in law and fact issuing unfair assessment of the division of matrimonial properties between the parties herein. 2. The trial magistrate erred in law and fact by failing to take into account evidence adduced by the petitioner in respect of her contribution in building and purchasing of matrimonial properties of the parties herein. 3. The trial magistrate erred in law and fact by issuing an order for maintenance of the children at Tsh.300,000/= without considering the costs of living of where the children are residing and current income and wealth of the parent. ■ M She therefore prayed for the decision of the trial court to be quashed and set aside, and costs of this appeal to be borne by the respondent. At the hearing the parties were represented. For the appellant, she was represented by Messrs William Haidary Hassan assisted by Yona Lucian Habiye both learned counsels, while Mr. Majura Magafu learned counsel, assisted by Mathew Kabunga learned counsel entered appearance for the respondent. A leave of the court was granted for this appeal to be heard by way of filling written submission after a prayer for the same from counsel William Haidary Hassan. It is highly appreciated that submissions were filed as scheduled. Supporting the appeal, learned counsel Hassan adopted the ground and prayers sought in the Memorandum of Appeal to form part of his submission. He argued jointly the 1st and 2nd grounds of appeal where he submitted that, considering the evidence on record, it was proved by the appellant at the trial that, the matrimonial properties at Plot No. 109 Block C Namanga, Arusha and matrimonial house at Makongo Juu Dar es Salaam were purchased and built by the appellant whose contribution was considerable higher than the respondent. He referred this court to exhibits Pl, P2,P3,P7,P13 and P14 which show the appellant's contribution on the said properties. In addition to that, he submitted that respondent failed to substantiate his allegations that his documents were taken by the appellant, leave alone proving his contribution to the acquisition of the properties. According to the learned counsel, he argued that though it is settled that the provision which guides division of matrimonial properties is section 114 of the Law of Marriage Act, Cap 29 R.E 2019 (the Act), but he faulted the trial court for being unfair in division of the parties' matrimonial properties. His argument is based on the mortgage to the matrimonial house to which, he argued that since this mortgage is serviced by the appellant giving her 60% from the said house is unfair since the trial court did not distribute the mortgage debt to the parties. The same argument was on the house at Arusha that 30% which was given to the respondent was unfair since he did not prove his contribution to its acquisition. Mr Hassan's view was that, the trial court ought to have given the appellant shares to the houses at Moshi and Chalinze the properties that were given to the respondent. To buttress his argument, he cited the cases of Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 CAT, Happiness Frank and Another vs Ahmad Said and Others, Civil Appeal No. 128 of 2018, HCT and Asha Peter Ngowi vs Abeid Amani Msele, (PC) Civil Appeal No. 13 of 2020 HOT and he therefore prayed for these grounds to be allowed. In response to these grounds Mr. Magafu learned counsel argued that, in assessing how much parties should get from matrimonial properties depends on extent of each party's contribution towards acquisition of the properties. He added that, consideration of parties' customs of the community they belong, debts are of essence in division of matrimonial properties. Learned counsel praises the trial court that it was right to distribute the properties the way it did, for what he believed that it considered the contribution of both parties. According to him, respondent had contributed much than appellant. He argued that, the plot at Makongo Juu to which the matrimonial house was built was purchased by the respondent for paying Tsh.25,000,000/= referring this court to the testimony of PW5. He submitted further that, even a plot at Namanga, respondent paid Tsh. 6,000,000, leave alone a loan which was taken by him from a SACCOS at a tune of Tsh. 33,000,000 which was used to build a house at Makongo Juu. Furthermore, it was the learned advocate's submission that, appellant had an ill motive for taking respondent's documents which could 5 v / I have helped him to prove his alleged contribution. Also, he added that, all what was testified by the appellant at the trial concerning acquisition of houses at Namanga and Makongo Juu were all lies, since, he said, the loan which was taken from Stanbic Bank was squandered by the appellant. He then added that, the division by the trial court was not fair to the respondent considering his contribution. He then prayed for these grounds to be dismissed. As for the third ground, learned counsel referred this court to page 71 of the trial court proceeding where, he argued that respondent knew the expenses of his family as he testified to being providing Tsh. 700,000 for maintenance in 2022. It was therefore the learned advocate's submission that the amount which was ordered to be paid as monthly maintenance is small compared to the current costs of living especially at Makongo where children are living with the appellant. For that matter, he prayed that respondent should be ordered to pay Tsh. 1,000,000 as monthly maintenance so that the children should not be disturbed by the sudden change of their style of life. To support this argument, he cited the case of George Ganchev Ganchev vs Hope Elizabeth Yussuf Abbebe, Civil Appeal No. 109 of 2019 (unreported). Disputing this ground ,it was Mr. Magafu learned counsel who argued in favour of the trial court that the amount which was ordered to be paid as monthly maintenance was reasonable and enough since respondent was also ordered to pay for school fees and medical expenses. He therefore prayed for this appeal to be dismissed. In rejoinder submission learned counsel did not submit anything new rather he reiterated what he submitted in his submission in chief. Having considered the grounds of appeal, submissions of the parties and lower court record, the only issue for determination is whether this appeal is merited. In determining this appeal, I shall deal with the grounds of appeal as presented, and in the same manner as argued by the parties. However, it is worth noting that, this is a first appeal to which, I am enjoined by law to re - evaluate facts and evidence found on record and come up with my own findings, but of course, guided by principles of law. (See the case of Herman Faida Vs. The Republic, Criminal Appeal No. 479/2019 CAT). Coming now to deliberation of this appeal, I shall start with consolidated ground 1 and 2, which raise the issue whether the trial court erred in distributing matrimonial properties without considering extent of parties' contribution. After considering the parties' submissions for and 0 M against these grounds, I shall dwell my thought on the principles enshrined under section 114 of the Act and what was stated by the Court of Appeal in the cases of Yesse Mrisho vs Sania Abdul, Civil Appeal No. 147 of 2016 and Bi Hawa Mohamed vs Ally Seif [1983] TLR 32, as to what amounted to matrimonial properties. In fact, it is settled that, properties are said to be matrimonial when they were acquired during the subsistence of marriage by the parties' joint effort. This includes those properties which were acquired by one spouse before marriage but was substantially improved during marriage by parties' joint effort as per section 114(3) of the Act. Going by the records of this case, it is undisputed that the properties to wit; a house at Plot No. 255 Block 1 at Makongo Juu, Dar es Salaam, two houses at Namanga Arusha, One Storey house and a small house at Chalinze, and One house at Kiaseri - Uru Moshi were properties acquired during the pendency of matrimony by joint efforts of parties. The question that I am called to determine and which is the basis of this appeal is, did the distribution by the trial court fair. The answer to this question is not far to fetch since the Court of Appeal in the celebrated case of Bi Hawa Mohamed vs Ally Seif (supra) ruled that in distribution of matrimonial properties, extent of contribution of the parties in work, money or property towards acquisition of the said properties is of a paramount consideration. In other word it can be said, assessment of what or how much share a party is entitled from the matrimonial properties depends on his/her extent of contribution towards acquisition of the same. And again, the law is settled in the case of Gabriel Nimrod Kurwijila vs Theresia Hassan Malongo, Civil Appeal No. 102 of 2018 CAT, that extent of contribution can be determined through evidence of the parties found in the records. Before going into analysis of evidences found on record concerning the parties' matrimonial properties, it suffices to note that, in civil cases proving facts alleged in court is on the balance of probability. That is to say whoever between the parties with cogent evidence wins, which therefore requires that, whoever alleges in court must prove. See section 110 and 112 of the Evidence Act, Cap 6 R.E 2019 and the case of Paulina Samson Ndawanya vs Theresia Thomas Madaha Civil Appeal No. 53 of 2017 CAT. Now, having all that stated above in mind, it is on record that appellant tendered exhibit Pl, P2, P3, P7, P13 and P14 to prove how she contributed in money when acquiring the property of Namanga and matrimonial house at Makongo Juu. It is undisputed that, appellant advanced a mortgage loan of which she will be paying by deducting her salary till 2038 and she used the same money in construction of the house and buying furnitures, the fact which was not disputed. On the other hand, respondent alleged to have bought a plot at Makongo Juu and using his expertise to design their matrimonial house at Makongo Juu, and that of Namanga, but these facts were not substantiated with evidence since he accused appellant for seizing his documents. As I have earlier on stated, it was not disputed that these properties were all acquired during the pendency of marriage therefore, with respect I hold that the trial court was right in distribution of the houses at Makongo Juu and Namanga, where it has given appellant 60% and 70% respectively, while respondent was given 40% and 30%. But it was improper for the trial court to not distribute the loan which was taken as mortgage to the said house, the allegation by the respondent that the said house was squandered by appellant was not supported by evidence. It follows therefore that, since it was not disputed that a mortgage was taken in respect of the house at plot No. 255 Makongo Juu is concerned, division a debt is inevitable. For that matter, I order division of a loan in respect of a house at Makongo Juu by holding that appellant should be responsible for repayment of 60% of a loan while respondent will be liable for 40% of the said loan. My disagreement goes also to the distribution of two houses at Chalinze where, there are one storey building and a small house, and one matrimonial house at Uru Moshi, these properties were given solely to the respondent without justifiable reason. It was not disputed that in these properties respondent contributed more than appellant but it was testified by the appellant that, she was the one who was taking care of the family all that time when respondent was away doing his engineering work, and her being an employee she also contributed in money into acquiring these properties. Considering the same, I vary the division of the trial court by giving appellant 30% share in the two houses at Chalinze and one house at Uru Moshi. Further to that, an argument of the learned counsel Magafu concerning Chaga customs on the parties' house at Uru is misconceived, since the parties testified to have built that house for themselves after they have already built a house for the parent of the respondent. These grounds are allowed to the extent explain hereinabove. As for ground 3 which appellant is disputing the amount ordered by the trial court to be paid by respondent as monthly maintenances for w complaining that the same is insufficient to cater for the current living costs. This ground should not detain me much, as it is settled that maintenance is a shared responsibility, that is every parent has a duty to maintain his or her children depending on, among other things, his/her financial capability. Therefore, considering the parties to this case, it is undoubted that they are all workers who have been earning income. Though I can agree with the learned advocate for the appellant that respondent testified to have been maintaining his family by paying Tsh. 600,000 or 700,000/= monthly which according to the respondent he seemed to have not being bothered with that amount, meaning he was comfortable paying it since there was no any fact stating otherwise (see page 71 of the typed proceedings). But, since respondent was ordered to pay for school fees and medical expenses, which as for medical expenses I think the trial court misdirected itself ordering the same, when it was testified by the appellant that their children are using medical insurance cover from her office which technically imply that appellant is somehow contributing. It is therefore clear that, respondent will be paying only for school fees, and that forced me to vary the amount payable on maintenance from Tsh. 300,000 monthly to Tsh. 600,000/=monthly. I am subscribing my stand to vary this amount considering the provision of section 26(l)(a) of the Law of the Child Act, Cap 13 R.E 2019 which states that "26(1) Subject to the provisions of the Law of Marriage Act, where parents of a child are separated or divorced, a child have right to- a. Maintenance and education of the quality he enjoyed immediately before his parents were separated or divorced". Now, guided the above provision, the evidence on record and what has been stated above, it is my humble view that it is just to vary an order for monthly maintenance as I did. Thus, this ground of appeal is allowed to the extent explained. Consequently, this appeal is allowed. I make no orders as to costs as the parties were spouses. It is so ordered. Right of explained to the parties., < M.MNYUkWA JUDGE 20/12/2024. Court: Ruling delivered in the presence of the counsel for both parties. M.MNtUK JUDGE 20/12/2024