20090715 TZHC Arusha

) IN THE HIGH COURT OF TANZANIA AT ARUSHA j (PC) CIVIL APPEAL NO. 49 OF 2003 (Originating from Arusha District Court Civil Appeal No. 14/2003) I I . RAPHAEL SHIRIMA .:'.. ..................... APPELIANT I Versus I LYDIA SHIRIMA ............................... RESPONDENT 1 ' I (Appeal from the decision of the D/Court of Arusha) I I ' (D.S. MLAY - PDM) 1 I Dated 1st September, 2003 l ' In Civil Appeal No. 14 of 2003 I JUD GM EN:' T OF THE COURT R.SHEIKH, J. . j 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. l Briefly the facts of this matter 'are as follows: I The appellant and the respondent are husband and ,vife. They were .I 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 I issues of the marriages, born in 1990 :and 1996 respectively. I On 21/01/99 the appellant ass·aulted and seriously injured one of the children. As a result of the assault the respondent left the matrimoniai home taking with her both the children and went to live with her parents. I I I 1 I On 22/02/2002, the respondent filed a suit for maintenance fore the children against the appellant. The ¼.rusha Urban Primary Court entered judgment in her favour and made anl order for child maintenance ordering l the appellant to pay the responc:lent shs. 100,000/= per month as maintenance expenses for the two iskues of the marriage. Dissatisfied with the decision and order of the Primdry Court the appellant appeal to the Arusha District Court. The Distri6t Court upheld the decision of the I 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 Distric~ court had as a first appellate court in upholding the decision of the trial o~urt, and in finding that the appellant 1 was not fit to have the custody of any of the two issues on grounds of cruelty. In the written submission filed in support of the appeal, learned l counsel for the appellant (the then ~ anzania Legal Corporation submitted ' ' that the first appellate court had failed to evaluate the evidence before the 1 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 l testify in court, the child was not tailed and no reasons were given. The j 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 abn.oy the sum of 100,000/= fixed as I maintenance expenses was reasonable, that the appellant is a major in the I annoy cannot be a basis for the c1: ssessment 1 of the amount payable as maintenance. The appellant furthet contended that the trial court did not 2 take into account his means or abilities to pay such an amount or consider his salary slips for the years 1999 and iooo which were tendered at the trial, I 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 of the lower churts cannot be faulted, that order of pay the same. i maintenance was made upon proof bf the appellant's financial ability to As the main complaint advanc. d by the appellant is to the effect that the two lower courts failed to p+perly evaluate the evidence, I have thoroughly re~evaluated the entire e ·dence before the trial court. At the outset I will say that as custody of the two children or either of them was evidently not an issue blefore the trial court, ground 2 of the grounds appeal which l deals witli. the complaint regarding custody is misconceived and without merit. As regards the issue of m intenance and whether or not the appellant's has the ability to pay thb maintenance fixed by the trial court I am satisfied that on the evidence tJe respondent had proved her claim for the sum awarded on a balance of p~obabilities. It is not disputed that the respondents and the two 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 tJe appellant denied having assaulted his . I child. It is also not disputed that the appellant is an officer, a major in the annoy nor has he challenged the evikence, the salary slips for 1999 and 2000 tendered by the respondent to supp~rt the claim that the appellant's income was sufficient to enable him t I pay the monthly maintenance of 3 shs.100,000/= for his two 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 else was filed in 2002, and the hearing proceeded in May 2002. According to ie record the appellant was asked to submit his current salary slip, but hd failed/ neglected to do so, thereby leaving the court with no option failiure to provide evidence about his income per month to counter the evidehce brought by the respondent but to rely on the salary slip of 2000 producJd by the appellant in determining in 2003 the ability of the appellant to pa1 the maintenance claimed The court is entitled to draw an adverse inferenoe 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 idstant appeal. I am also in agreement with the appellate District Court tha+he 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 excestve or beyond his means to pay. As provided in S.129 (1) of the Law of ~arriage 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 uhat the parties are estranged and living in separation does not in any way ab/solve the appellant from his obligation . . the two issues to ma1nta1n . I. of t he mam~iage. . For the above reasons I find thlat the appeal is devoid of any merit and must fail. It is accordingly hereby di!missed with costs. . ~gd R.,SHEIKH }unGE 5/ /2008 4 13/3/2008 Coram: G. Herbert, Ag.DR For Appellant: Absent For Respondent: Present in person B/C Court: Judgment delivered in presence , f Respondent while appellant counsel notified. Sgd ~. I G. HERBERT,AG.IDR I 13/3/2008 t I I I hereby certify this to be a true copy oft t e original