raphael shirima vs lydia shirima 2008 tzhc 210 5 march 2008

IN T H E HIGH C O U R T OF TAN ZA N IA AT ARUSHA (PC ) CIVIL APPEAL NO. 49 OF 2003 (Originating from Arusha District Court Civil Appeal No. 14/2003) RAPHAEL S H IR IM A ........................... APPELLANT Versus LYDIA SH IR IM A ................................ RESPON DENT (Appeal from the decision of the D/Court of Arusha) (D.S. MLAY - P P M ) Dated 1st September, 2003 In Civil Appeal No. 14 of 2003 1 U D G M E N T OF THE C O U R T R.SHE1KILI. This is a second appeal, from a decision of the Arusha District Court dismissing an appeal from a decision of the Arusha Urban Primary Court. Briefly the facts of this matter are as follows: The appellant and the respondent are husband and wife. They were married in 1989, the marriage heaving been and celebrated in Christian form at the Saint Theresa Church in Arusha. They cohabited and there are two issues of the marriages, born in 1990 and 1996 respectively. On 21/01/99 the appellant assaulted and seriously injured one of the children. As a result of the assault the respondent left the matrimonial home taking with her both the children and w ent to live w ith her parents. On 22/02/2002, the respondent filed a suit for maintenance fore the children against the appellant. The Arusha Urban Primary Court entered judgment in her favour and made an order for child maintenance ordering the appellant to pay the respondent shs. 100,000/= per month as maintenance expenses for the tw o issues of the marriage. Dissatisfied with the decision and order of the Primary Court the appellant appeal to the Arusha District Court. The District Court upheld the decision of the Primary and dismissed the appeal. Since dissatisfied he has now come to this court. The petition of appeal raises three grounds of appeal in which he is basically contending that the District court had as a first appellate court in upholding the decision of the trial court, and in finding that the appellant was not fit to have the custody of any of the tw o issues on grounds of cruelty. In the w ritten submission filed in support of the appeal, learned counsel for the appellant (the then Tanzania Legal Corporation submitted that the first appellate court had failed to evaluate the evidence before the trial court. It was argued that although in her evidence the respondent said she would bring the child who was illegally assaulted by the appellant to testify in court, the child was not called and no reasons wrere given. The appellant also complained that the sum of Shs. 100,000/= fixed as monthly maintenance by the trial court was manifestly and was not supportable on evidence excessive, that the trial court had wrongly made a finding that as the appellant is major in the annoy the sum of 100,000/= fixed as maintenance expenses was reasonable, that the appellant is a major in the annoy cannot be a basis for the assessment of the amount payable as maintenance. The appellant further contended that the trial court did not take into account his means or abilities to pay such an amount or consider his salary slips for the years 1999 and 2000 which were tendered at the trial, there was no proof of income to justify the order of maintenance in the sum ordered by the trial court. On the other hand the respondent has maintained that the two respective judgments ol the lower courts cannot be faulted, that order of maintenance was made upon proof of the appellant’s financial ability to pay the same. As the main complaint advanced by the appellant is to the elfect that the two lower courts failed to properly evaluate the evidence, 1 have thoroughly re-evaluated the entire evidence before the trial court. At the outset I will say that as custody of the tw o children or either of them was evidently not an issue before the trial court, ground 2 of the grounds appeal which deals w ith the complaint regarding custody is misconceived and w ithout merit. As regards the issue of maintenance and w hether or not the appellant’s has the ability to pay the maintenance fixed by the trial court 1 am satisfied that on the evidence the respondent had proved her claim for the sum awarded on a balance of probabilities. It is not disputed that the respondents and the tw o issues of the marriage are living with the respondent’s parents, and that the parties are estranged due to marital problems that had arisen, even if the appellant denied having assaulted his child. It is also not disputed that the appellant is an officer, a major in the annoy nor has he challenged the evidence, the salary slips for 1999 and 2000 tendered by the respondent to support the claim that the appellant’s income was sufficient to enable him to pay the monthly maintenance oi 3 shs. 100,000/= for his tw o children. According to the salary slip for November 2000 the appellant was receiving a gross salary of shs. 223.080/= and a net salary of shs. 145,339/=. The case was filed in 2002, and the hearing proceeded in May 2002. According to the record the appellant was asked to submit his current salary slip, but he failed/ neglected to do so, thereby leaving the court w ith no option failure to provide evidence about his income per month to counter the evidence brought by the respondent but to rely on the salary slip of 2000 produced by the appellant in determining in 2003 the ability oi the appellant to pay the maintenance claimed. The court is entitled to draw an adverse inference against the appellant due to his the case of NASIBU HAMIS Vs ARAFA SHABAN (1982 T.L.R, 91) cited by the appellant is inapplicable to the instant appeal. 1 am also in agreement with the appellate District Court that the undisputed fact that the appellant is a major in annoy shs. 100,000/= per month maintenance for his two children cannot be said to be excessive or beyond his means to pay. As provided in S.129 (1) of the Law of Marriage Act 1971, it is the duly of the father to maintain his infact children whether they are in his custody or the custody of another person. The fact that the parties are estranged and living in separation does not in any wTay absolve the appellant from his obligation to maintain the tw^o issues of the marriage. For the above reasons 1 find that the appeal is devoid of any merit and must fail. It is accordingly hereby dismissed with costs. Sgd R. SHEIKH JU DG E 5/ 3/2008 4 13/3/2008 Coram: G. Herbert, Ag.DR For Appellant: Absent For Respondent: Present in person B/C C o u rt: Judgment delivered in presence of Respondent while appellant counsel notified. Sgd G. HERBERT, AG.DR 13/ 3/2008 5