CHARLES KOBA LUKOBA EDITED 22222222

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI PC CIVIL APPEAL NO.6282 OF 2024. (Arising from Civil Appeal No. 03/2024 of Babati District court, originating from Matrimonial Cause No. 02/2024 from Babati Primary Court). CHARLES KOBA LUKOBA........................ APPELLANT VERSUS KAHABI BAHATI MBUPU....................................... RESPONDENT JUDGMENT 1st August & 2nd September, 2024 Kahyoza, J.: Charles Koba Lukoba (the appellant) instituted matrimonial proceedings in the primary court against Kahabi Bahati Mbupu (the respondent) petitioning for divorce, custody of the two issues of marriage and division of matrimonial assets. The primary court granted the petition for divorce and custody of the children to Charles Koba Lukoba. It is not clear from the record if the trial court ordered distribution of matrimonial property. Aggrieved, Kahabi Bahati Mbupu appealed to the district court, which granted her custody of the children and ordered the distribution of the matrimonial assets, awarding a house to Kahabi Bahati Mbupu and awarding a motor vehicle and one Plot of land to Charles Koba Lukoba. A brief and material background is that; Charles Lukoba and Kahabi Bahati Mbupu celebrated their marriage under Christian rites on 1.8.2015. During their substance of marriage, the parties were blessed with two issues and acquired family assets. The parties do not seriously contest the issuance of divorce, rather, they locked horns on two issues; division of matrimonial property; and two, who should have the custody of their two children. Charles Koba Lukoba deposed that their first issue of marriage, Comrede Charles Lukoba was 7 years old and the second issue, Careen Charles Lukoba was 4 years old. As to the matrimonial assets, Charles Koba Lukoba deposed that during the subsistence of their marriage, they acquired one house, one motor vehicle and two plots at Komoto area within Babati town. Kahabi Bahati Mbupu contested the petitioner to be awarded custody of children. She prayed to be granted custody of the children alleging that Charles Koba Lukoba, the petitioner, was a short- tempered person who should not be awarded custody of children. She added these days men are not to be given custody of very younger children as they may sexually harass them. As to matrimonial property , she contended that, they acquired a house, a car and one plot of land. She stated that the plot of land recorded in their child's name was a gift from her brother to their first issue. There is no evidence that the parties were married couples and were blessed with two issues of marriage, the first 7 years and the second 4 years. It is also not in dispute that they acquired jointly one house, one motor vehicle and one plot of land. As to the disputed plot of land, which is registered in the name of the parties' first child is not the family property. Kahabi Bahati Mbupu, the respondent, deposed that the property was issued by her brother to the parties' first child. The appellant did not cross-examine Kahabi Bahati Mbupu regarding the evidence that second plot was issued to their first child by the respondent's brother. He, therefore accepted the evidence that Kahabi Bahati Mbupu's brother gave the plot to their first child. The Court of Appeal in Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019) held that- "Failure to cross-examine a witness on a particular important point may lead the court to infer that the cross examining party accepts the witness' evidence and it will be difficult to suggest that the evidence should be rejected. For instance, in Shadrack Balinago vs. Fikiri Mohamed @ Hamza, Tanzania National Roads 3 Agency (TANROADS) and Attorney General, Civil Appeal No. 223 of 2017 (unreported) it stated: "As rightly observed by the learned trial judge in her judgment, the appellant did not cross-examine the first respondent on the above piece of evidence. We would, therefore, agree with the learned judge's inference that the appellant's failure to cross-examine the first respondent amounted to acceptance of the truthfulness of the appellant's account" Charles Koba Lukoba's appeal raised four grounds of appeal, which culminates two issues; one, whether the district court was justified to grant custody of children to Kahabi Bahati Mbupu, their mother; and two, whether it was proper to award the house to the respondent. The parties argued the appeal by way of written submissions. Was the district court justified to grant custody of children to Kahabi Bahati Mbupu, their mother? The appellant complained and argued that the district court erred to set aside the consent judgment of the trial court. He contended that the parties consented before the primary court. He argued that consent judgment may be set aside only when, it has been proved that, the consent judgment was obtained by fraud or where it was obtained by 4 mis-representation or non-disclosure of a material fact for which there was an obligation to disclose, or where it was obtained under duress, or where it was executed under mutual mistake of fact or where the same was obtained without proper authority. He lamented that the first appellate court did not give reason for setting aside the consent judgment. The respondent replied that there was no consent judgment. She cited Motor Vessel Sepideh & Another vs Yusuf Mohamed Yusuf & Others (Civil Application No. 237 of 2013) [2015] TZCA 346 (1 July 2015) where the Court of Appeal defined a consent judgment as follows- "An agreement between two or more persons to settle matters in dispute between them; an agreement for the settlement of a real or supposed claim in which each party surrenders something in concession to the other - also termed com promise and settlement" She concluded to order that there was no consent judgement, hence the first appellate court was proper to order as it did. I will not dwell on this matter, as the record bears testimony that there was no consent judgment. The parties never consented on the issue of custody of the issues of marriage or division of matrimonial assets. The record shows that the appellant prayed to be given custody of the two issues of marriage and the respondent opposed contending 5 it was scarily to give a man custody of younger children as he may sexually abuse them. I find no merit in the complaint that the first appellate court set aside a consent judgment of the primary court as there was none. As defined by the Court of Appeal in Motor Vessel Sepideh & Another, consent agreement is said to exist when parties to a suit reach an agreement, file it in court and the court issues a consent order. The appellant and respondent did not enter into an agreement, file it or address the court regarding the agreement and nowhere did the primary court issue a consent order. The next question is whether the district court was proper to grant custody of the children of marriage to Kahabi Bahati Mbupu, their mother. The appellant testified that the issues of marriage were Comred who was 7 years old and Careen who was 4 years old. During the hearing of the appeal he submitted that Comred was 8 years old. He added that when considering the custody of the children the best interest of the children must be considered. He cited the provisions of the Law of Marriage Act and the Law of the Child Act, to support his contention. To further support his contention, he cited the case of Nacky Esther Nyange vs Mihayo Marijani Wilmore (Civil Appeal 169 of 2019) [2022] TZCA 507 (16 August 2022) where the Court of 6 Appeal highlighted the factors to consider when granting custody of children. It held that- "In applications for custody, the best interest of the child is determined in consideration of such factors as; the age and sex of the child, the independent views of the child, the desirability to keep siblings together, continuity in the care and control of the child, the child's physical, emotional and educational needs, the willingness of each parent to support and facilitate the child's ongoing relationship with the other parent (see sections 26 and 39 (2) of the LCA and Rule 73 (a) to (i) of the Law of the Child (Juvenile Court Procedure) Rules, GN No. 182 of 2016 (hereafter referred to as the Juvenile Court Rules)" The appellant submitted that he was a responsible person taking care of the issues of marriage and that the respondent was cruel to the children. He submitted that the respondent coached the children on what to say as the trial court noted. He added that he had close relationship to the children as the trial court noted. The appellant added that section 26(1) of the LIMA, provides that a child has the right to live with the parent who is in the opinion of the court, capable of raising and maintaining the child in the best interest of the child. And that, on the other hand, section 26(2) of the LIMA provides for a rebuttable presumption that the child below the age of 7 years to be with the 7 mother. He contended that the respondent failed to prove that she was more suitable to live with their daughter than him. The respondent submitted that she was supporting the decision of the district court to give her custody of the children of marriage. She contended that the children of marriage were 7 years old and 4 years old, hence basing on section 26(2) of the LMA, she was entitled to have the custody of the children. She submitted that it was upon the appellant to rebut the presumption under section 26(2) of the LMA and not her responsibility. I agree that in determining the custody of the children, a court should strive to achieve what is in the best interests of those children but also the age of the children is a determinant factor. I agree with the parties that there is a rebuttable presumption that children below seven years to be in the custody of their mother. In the present case, I find it proved that the issues of marriage were 7 years old and 4 years old. The appellant's attempt to show that their first child was 8 years old has not ground to stand on for two reasons; One, it is in his testimony on oath that their first child was 7 years old. The appellant testified on 18.1.2024; Two, submission is not evidence, thus, the appellant contention in his submission that their first child was 8 years old cannot be taken as evidence to contrast his earlier evidence. 8 Given the fact that the children of marriage were 7 and below seven years, it is presumed under section 125(3) of the LMA, that it is for the good of a child below the age of seven years to be with his or her mother. That presumption may be rebated by tendering evidence to prove that the mother ought not to be granted custody of the children below seven years. Section 125(3) of the LMA states- (5J There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption i applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of the child by changes of custody. The appellant submitted that the respondent did not prove that she was more suitable to have the custody of the children than him. The appellant misapprehended the law. The court presumed that it is for the good of their issues of marriage below the age of seven years to be with their mother, the respondent. The appellant was not in support of that presumption for reasons known to him, he applied for custody of the children. For that reason, he had a burden to prove that he was more suitable to have the custody of the children than the respondent. The question is whether the appellant proved that he was more suitable to have the custody of the children than the respondent. The 9 record shows no evidence as to the suitability of the appellant to have custody of the children of marriage. He prayed to be given the motor vehicle so that he may use it to take the children to school. He submitted that the respondent was cruel and that the primary court found that the children were close to him than the respondent. He added that although, the children expressed that they wanted to stay with the respondent, the trial court was of the view that the respondent coached them. Like, the first appellate court, I find that the trial court took into consideration extraneous matters not found on record. The record does not show that the trial court gave an opportunity to the children of marriage to give their opinion with whom they wanted to stay with. It was wrong for the trial court to base its judgment on extraneous matters. In addition, to prove that the appellant was more suitable to stay with the children of marriage, the appellant adduced additional evidence in his submission and tendered documentary evidence. I will not reproduce the evidence or make a reference to such evidence. This is a second appeal; this Court is not mandated to receive and deal with new evidence or canvass on issues not dealt by two courts below. 10 It is the general principle that the appellate court cannot consider or deal with issues that were not canvassed, pleaded and not raised at the lower court. See Farida and Another v. Domina Kagaruki, Civil Appeal No. 136/2006 CAT. I will not consider new evidence. For that reason, I find that the appellant did not adduce evidence to prove that it is not for the good of their issues of marriage below the age of seven years to be with their mother, the respondent. I therefore, find that it is for the good of their issues of marriage to be in the custody of their mother, the respondent. I uphold the district court's finding. The appellant should give custody of the children of their marriage immediately to the respondent, and if, the appellant has taken them away from Babati, he is responsible to bring them to the respondent at his own costs. Is there any justification to award the house to the respondent? The appellant complained that the district court awarded the matrimonial house to the respondent without considering his contribution. He said that he was given a motor vehicle and one plot. He lamented that the district court distributed the property unequally. He submitted that the house was in his name. He submitted that he attached the title deed. 11 The respondent replied to the appellant's complaint that she was entitled to the house as she was ordered to have custody of the children. She added that the matrimonial property was divided basing on contribution. She cited the case of Nicolathar Ramadhani vs Azizi Mohamed Mbamba (PC Civil Appeal 118 of 2021) [2022] TZHC 13482 (16 September 2022). Division of matrimonial asset is and will remain a central dispute to spouses after dissolution of marriage. It is a wish of any of the spouse, that his former wife or her former husband left the matrimonial home empty handed. That is the reason why the law regulates division of matrimonial property after marriage is resolved. I agree with the parties that one of the principles governing division of matrimonial assets is that the division ought to be based on the parties' contribution to the acquisition of the property. The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to - 12 (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. In the present case, the parties agree that they contributed to the acquisition of the motor vehicle, the house and one plot. There is a dispute if the second plot was the matrimonial property. I made a finding that the second plot which was registered in the name of the parties' first child was not part of the matrimonial asset. Thus, the parties during the subsistence of their marriage, they acquired matrimonial property which are a house, a plot, and a motor vehicle. The appellant prayed to be given a motor vehicle. As to the house he deposed that he had no problem if the respondent stayed in the house. 13 The district court ordered the distribution of the matrimonial assets by giving the house to the respondent. It gave the motor vehicle and one plot to the appellant. There is no doubt that both parties contributed to acquire matrimonial assets. The evidence on record do not establish the contribution each party made to the acquisition of the property. The appellant deposed that without evidence that he may have contributed more than the respondent to the acquisition of the house. He added that they contributed equally to the acquisition of the motor vehicle and the plots. When examined by the court, the appellant deposed that- " Katika nyumba nimetoa mchango mkubwa zaidi kwani nimechukua mikopo zaidi ya mitatu Hi kukamilisha ujenzi, lakini sina neno tukigawana sawa kwa sawa naye alichangia. Katika gari sina uhakika Ha ni kama tuko sawa kwa sawa katika upatikanaji wake. Viwanja pia mchango ni sawa." The respondent on her part deposed that they contributed equally to the acquisition of the house. She testified- "nyumba kwe/i mchango wetu ni sawa." Thus, I will take it that parties contributed equally to acquire the matrimonial home. As to the distribution, the appellant prayed to be given a motor vehicle and the custody of the children. He deposed that he had no problem if the respondent was given the house. He said- 14 "Na ma/i zote hizi niHchangia asilimia zote na isitoshe sina neno na nyumba ikibaki kwa mjibu maornbi ila naomba Mahakama inisaidie gari na watoto.." The district court granted the appellant his wish. He has for that reason no ground to complain. In addition, the parties did not give the value of the motor vehicle and the house, thus, it was difficult for the district court to divide the asset based on the value of the assets. The appellant prayed the respondent to be given the house on a condition that she should not sell it. I do not find any reason for that the appellant was given a motor vehicle unconditionally why should the respondent be given a house on a condition that she should not sell it. I find no reason for the appellant to complain as he was given what he prayed for and the value of the assets were not given so the division would not be ordered based on the value of the property. It is hard to tell the value of the assets from the evidence on record. Depending on the state of the motor vehicle, it may have more value than a house. I find no merit on the appellant's complaint that the district court did not divide the matrimonial property equally. Before, I off, I wish to state that I perused the record to find out if there was evidence that the marriage had broken down irreparably and 15 found none. I wish to state that the parties did not make it an issue to this court or before the first appellate court. It is trite law that marriage may be resolved when and only when there is evidence that it has broken down beyond repair. Marriage is proved to be broken down beyond repair when any of the circumstances under section 107(2) of the LMA is proved. Section 107(1) and (2) of the LMA state that- 107.-(1) In deciding whether or not a marriage has broken down, the court shall have regard to all relevant evidence regarding the conduct and circumstances of the parties and, in particular shall- (a) unless the court for any special reason otherwise directs, refuse to grant a decree where a petition is founded exclusively on the petitioner's own wrongdoing; and (b) have regard to the custom of the community to which the parties belong. (2) Without prejudice to the generality of subsection (1), the court may accept any one or more of the following matters as evidence that a marriage has broken down but proof of any such matter shall not entitle a party as of right to a decree- (a) adultery committed by the respondent, particularly when more than one act of adultery has been committed or when adulterous association is continued despite protest; (b) sexual perversion on the part of the respondent; 16 (c) cruelty, whether mental or physical, inflicted by the respondent on the petitioner or on the children, if any, of the marriage; (d) willful neglect on the part of the respondent; (e) desertion of the petitioner by the respondent for at least three years, where the court is satisfied that it is willful; (f) voluntary separation or separation by decree of the court, where it has continued for at least three years; (g) imprisonment of the respondent for life or for a term of not less than five years, regard being had both to the length of the sentence and to the nature of the offence for which it was imposed; (h) mental illness of the respondent, where at least two doctors, one of whom is qualified or experienced in psychiatry, have certified that they entertain no hope of cure or recovery; or (i) change of religion by the respondent, where both parties followed the same faith at the time of the marriage and where according to the laws of that faith a change of religion dissolves or is a ground for the dissolution of marriage. The appellant petitioned for divorce on account that there was no harmony in the matrimonial home. The petition form titled as "Fomu Madai -2" reads- "...Mdaiwa /mjibu maombi wanaugomvi na mdai/ mwombaji kuanzia mwaka 2021 ha di sasa ha wan a maelewano ndani ya ndoa..." 17 The evidence is that the parties stated quarrelling in 2022. It was alleged that the appellant deserted the matrimonial home and went to live to a place best known to him. If it is true that the appellant deserted the family home, that would not be a ground for petitioning for divorce. He had no right to desert the matrimonial home and base his petition for divorce on that ground. No one is entitled to benefit from his own wrongdoing. See section 107(1) (a) of the LMA. I considered if the decree of divorce was issued because of the cruelty on the part of the respondent. The appellant deposed that the respondent threatened him. The respondent denied the allegation. I did not find any proof that the respondent, the appellant's wife threatened the appellant. As it is not an issue before this court, whether the parties marriage has broken down beyond repair, I leave it that at that. In the end, I find the appeal without merit and dismiss it with costs. I uphold the district court's decision and order for the division of matrimonial assets. As to the custody of the children I uphold the order that the respondent should be given custody of the issues of marriage. However, I do not subscribe to the district court's order that the respondent be given custody of the children for 15 years. She is given custody of the children until the younger one attains the age of seven is years. It is important for the benefit of the children to let them grow together. As the record bears testimony, no one prayed for an order of maintenance costs. For that reason, I will not order maintenance costs. Should the respondent wish to apply for maintenance costs, she may apply to the juvenile court. I order accordingly. Dated at Babati this 2nd day of September, 2024. John R. Kahyoza Judge Court: Judgment delivered in the virtual presence of the parties. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 2. 9. 2024 19