Judgment Civil Appeal No 20947 of 2024

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM. CIVIL APPEAL NO 20947 OF 2024 (Arising from judgment and decree Matrimonial cause No.8971/2024 of District Court of Bagamoyo which was delivered by Honourable M.B Mmanya SRM on 27th July 2024) ELZABERTH STEPHANO…………………….…………. APPLELLANT

VERSUS PATRICK MWIKWABE SESE …………………………. RESPONDENT

JUDGMENT MKWIZU,J: The story of this case unfolds against the backdrop of a marriage that began with hope and promise. On November 15, 2013, in a sacred ceremony held at the Roman Catholic Church in Pwani Region, the appellant and respondent exchanged vows, united under Christian rites. Their union was blessed with two beautiful children: Maureen Patrick Sese, born on November 7, 2007, and Mercy Patrick Sese, born on October 13, 2011. In the initial years of their marriage, the couple enjoyed what many would 1 consider a harmonious relationship. The respondent, as a devoted wife, upheld her commitments with grace, embodying the ideals of a loving partner. However, as time went on, the tides began to shift. In 2014, the first signs of discord emerged when the petitioner was transferred from Bagamoyo District Council to Kibaha Town Council, leading to a physical separation that would define the trajectory of their marriage. Subsequently, the petitioner’s career took him from Kibaha to Geita Region and, ultimately, to Mwanza. Throughout these moves, the respondent remained behind, choosing not to accompany her husband for reasons she has kept to herself. This separation became a breeding ground for discontent. The appellant, feeling abandoned and isolated, began to exhibit troubling changes in behaviour. Reports from family members indicated that he had turned dishonest, straying

from the sanctity of their marriage by engaging in relationships with multiple partners. The matrimonial vows that once bound them now seemed frayed by misconduct and betrayal. The appellant sought assistance from the respondent’s family to salvage their relationship, hoping they could mediate and reconcile their differences. However, despite their efforts, the respondent's unwillingness to amend the situation only fueled the discord. Frustrated and out of options, the 2 petitioner ultimately escalated the matter to the Dunda Ward Marriage Conciliation Board. Yet, even this was to no avail; reconciliation proved elusive, and the couple found themselves at an impasse. Without any other options, the petitioner decided to file a petition, seeking divorce on the ground that the marriage had irreparably broken down, custody of the two children of the marriage, a declaration that the properties listed in paragraphs 1, 2, 3, 4, and 5 are not matrimonial properties but personal properties acquired by the petitioner and that the properties mentioned in paragraphs 6 and 7 are not marital assets but personal properties acquired by the respondent, along with any other relief that this honourable court may consider appropriate. Unfortunately, the appellant was not available for trial, meaning that the matter proceeded ex-parte with only the petitioner, now respondent, heard. Having

evaluated the evidence, the court found that the marriage between the parties had broken down irreparably, thereby granting the divorce decree. The petitioner(current respondent) was also granted custody of the two issues, XXM (17) and PPM (13), with the duty to maintain them with access rights to the appellant. The court was also convinced that the parties had not acquired property together during their marriage. It blessed the division proposed, with each property going with 3 the registered owner. In that regard, the petitioner, now respondent, was granted a house at Ukuni, plot no 21 and 23 block 7, plot no. 82 block N at Bagamoyo town, a plot no. 1236 block C at Nyegezi Mwanza with title no. 109732, a farm at Kiromo Chaga A Bagamoyo, a motor vehicle with Registration No. T. 903 DZE, Nissan Dualis. The appellant (original respondent) was granted a motor vehicle, Kluger, with Registration number T. 827 DWK, which is registered in her name and a landed property at Ikungi District Singida Region d as her personal property. The judgment and decree caused significant distress to the appellant, who filed an appeal with six distinct grounds of appeal. Mr. Karinjuna, an advocate, represents the appellant, whereas Mr. Magoti, also an advocate, represents the respondent. The hearing of the appeal was ordered to proceed through written submissions. Before the hearing, the

Appellant’s Advocate withdrew the 2nd, 3rd, and 4th grounds of appeal, leaving only the 1st, 5th, and 6th grounds of appeal as follows: follows; - 1. That the trial Magistrate erred in law and fact to hold that the respondent never made any contribution during the entire currency of their marriage towards the acquisition of properties which were enumerated under No 18 paragraphs 1,2,3,4,5,6 & 7 of the Matrimonial Cause No 8971 and judgment and decree. 4 5. That the trial magistrate erred in law and fact to solely rely on the petitioner’s allegations that there were resentments, the respondent was unfaithful and had various relationships with men, and she even got a child outside the wedlock without scientific proof that the child was born of wedlock.

6. That the trial magistrate erred in law and fact to grant custody of children, namely Maurine Patrick Sese (17) and Mercy, to the petitioner on the mere basis of being a government employee without taking into consideration the parenthood of the respondent as the mother of the said children. The appellant's counsel contended on the first ground that the trial magistrate neglected to acknowledge her contributions by awarding all the properties to the respondent under the pretext that they were solely in his name, irrespective of the fact that all properties were acquired during their marriage and, therefore, the appellant was entitled to a share in them. He cited the case of Bi Hawa Mohamed v Aly Seif (1983) TLR 32, where the Court of Appeal asserted that there must be an equal distribution of property acquired during a marriage, insisting that if the current situation persists, the appellant will be left destitute, with no home 5 or place to meet her children if all properties are granted to the respondent. The appellant's counsel claimed that the house in Singida allocated to the appellant is intended for her mother and that true ownership belongs to her mother. He pointed out that the respondent overlooked several properties impacting her situation and argued that enforcing the trial court's order would create a financial burden for her. She emphasised the need for equality

in property distribution and sought the court's intervention to resolve these issues. Regarding the fifth ground, concerns the custody of the couple's two children he noted that it is generally understood that when there is matrimony, all children born are recognised as part of that marriage, and the respondent failed to seek scientific proof from the Ministry of Health to establish the status of the third child who is alleged to have been born out of the wedlock. He faulted the trial magistrate for not inviting the respondent to present scientific evidence demonstrating that this child did not belong to him claiming that the trial court's decision, which stated that one child was born out of wedlock, lacked substantiation and resulted in the child being without custody from either party, as only two of them were placed under the respondent's care, leaving the other child without 6 anyone to care for . He went further to criticize the trial magistrate for placing the two children with the respondent solely due to his government employment without taking the necessary steps to inquire about the children's preferred guardian. Lastly, he requested the court to set aside the distribution made to the respondent because the appellant contributed to their acquisition, seeking a declaration order that the child alleged to have been born out of wedlock was a legitimate child of the

marriage and that the appellant be recognized as such custodian. On the other hand the respondents counsel finds the first ground of appeal regarding the distribution of matrimonial assets lacks bases and the submissions made thereto by the appellant contradict those raised in the ground of appeal itself. He said, this matter was heard ex parte; therefore, the appellant's evidence was not presented in court, and the trial court did not distribute the properties but rather it merely declared that the listed properties were acquired separately, with each spouse owning their own. Therefore, it is incorrect to assert that the trial court's distribution was made without considering the appellant's contribution, as this was not the case more so because the law under section 58 and 60 of the LMA allows each spouse to own property separately. 7 He added that the contention by the appellant's counsel that the distribution of matrimonial assets must take into account each party's contribution to property acquisition is misplaced because in this case nowhere has the appellant shown her contribution to acquiring the said assets . So even if this court resorts to distributing the asserts, it will have no basis upon which to weigh the contribution by the appellant and even know which property was acquired during the subsistence of their marriage. He also queried the appellant's complaint for

being directed only to the properties in the respondents' names, leaving behind the properties in her name.He believed that the appellant's contention that the house in Ikungi Singida, belongs to the appellant's mother constitutes new evidence presented at the appellate stage, which ought to be disregarded. He insisted that first ground would have been valid had the appellant sought to set aside the ex parte judgment and pursue a retrial, allowing the appellant time to present evidence demonstrating her contribution to the stated assertions. On the fifth ground of appeal regarding custody, the respondent stated that the appellant's counsel did not mention the child's name related to this ground. To have scientific proof, the appellant was required to cooperate during the trial; however, she willingly refused to attend the 8 proceedings, and the court could not force her to appear and that this is not an appropriate forum to contest the issue of a child born out of wedlock without proper evidence. Regarding the sixth ground of appeal, the respondent’s counsel submitted that the appellant's advocate's submissions contradict the wording stated in the ground itself. However, he believes that, custody matters are well guided by the law of the child where the child's best interest is paramount. According to sections 4 and 37 of the Child Act, custody of the child may be granted to

either parent or an alternative individual. As the child’s father, the respondent has the right to request custody of the children from their marriage. It is also undisputed that the father provides all the necessary support for their needs.They also stayed with their father throughout their schooling until they completed Standard Seven and Form Four, respectively, at which point the appellant took them, irrespective of the court's order. Thus, the court properly considered all relevant factors and granted the appellant visitation rights. He maintains that this is not the appropriate forum for the appellant to argue why she should have been awarded custody. He contended that summoning the children to express their preferences regarding where they wished to stay was unnecessary, as they were at school. Therefore, 9 this did not constitute valid grounds for appeal; no law compels the court to seek the children's opinion on their preferred custody arrangements. He strongly opposed the appellant's prayer to be declared custody of the issue claiming it as a factual issue that cannot be granted at this stage without first hearing the requisite evidence. Appropriately, he argued, the appellant should have sought to set aside the ex parte judgment so that her request could be considered after presenting proof. In a rejoinder, the appellant's counsel emphasised that the trial

magistrate failed to address the crucial DNA evidence before declaring that the child was born out of wedlock. He further highlighted the importance of consulting the children regarding their preferred custody arrangement, a fundamental legal requirement conspicuously overlooked in the proceedings and that the trial court did not consider the appellant's contributions, which is a significant aspect being challenged in this appeal. He assertevhyd that the grounds of appeal are valid and warrant adjudication by this court, noting that the trial court's actions amounted to a distribution of matrimonial assets rather than a proper declaration. He insisted on the principle of equality reiterated in numerous court decisions, reflecting the legal framework established by sections 114(1) 10 and (2) of the Marriage Act. In conclusion, he expressed concerns regarding how the ex-parte judgment was reached, arguing that spousal disputes should not justify awarding one party all the properties while leaving the other empty-handed. He lastly urged the court to allow the appeal in pursuit of a just resolution. I have considered the rival submissions. The present appeal is directed against an ex -parte judgment rendered without first setting aside the preceding ex -parte judgment. While the laws governing our jurisdiction permit such procedural actions, it is critical to understand that

this pathway is restricted exclusively to the merits of the appeal and not beyond those parameters. In the case of Dangote Industries Ltd Tanzania v. Warnecom (T) Limited, Civil Appeal No. 13 of 2021 the Court of Appeal at Dar es Salaam, provides substantial clarification on this matter that an appellant possesses an automatic right to appeal and is not encumbered by the obligation first to seek an order to set aside the ex-parte judgment. However, a party who opts to appeal without first applying to set aside the ex-parte judgment is precluded from contesting the validity of the ex-parte hearing itself. Rather, the focus of the appeal must remain squarely on the substantive merits of the case. I will thus go by the above guidance in this appeal. 11 Fortunately, the decree of divorce granted by the trial court is not one of the contested issues in this appeal. This means that the parties agree on it and would not want to continue their marriage. The first grounds challenge the trial court's distribution of the matrimonial assets in disregard of the appellant’s contribution to the acquisition of the listed matrimonial assets. This ground is expressed in a manner that unequivocally asserts the trial magistrate's oversight to give appropriate weight to evidence of the appellant’s contributions, both direct and indirect, which are essential in assessing the true nature of the

marital partnership and the equitable division of assets acquired during the union. As previously noted, the appellant did not participate in the trial hearing process, making her evidence unavailable for the court's consideration. The impugned decision relied exclusively on the evidence presented by the respondent. In addressing the distribution of matrimonial properties, the respondent, as the original petitioner, informed the court that the parties did not possess any jointly held properties. Instead, he asserted that each party had independently acquired properties registered in their respective names and evidence was tendered to establish the fact. On this basis, he requested that the court issue an order affirming that each party should receive their own share of the properties listed under their names. 12 The trial court blessed the prayer as nothing was at his disposal to counter such evidence. It is true, as right submitted by the respondent’s counsel, that no matrimonial properties were distributed in this case. Therefore, it is inaccurate to assert that the trial court's distribution overlooked the appellant's contribution. After all, no evidence has been presented to establish the appellant’s contribution. The situation would have been different had the appellant testified in court, countering the respondents’ evidence on the issue. Thus, in this instance, the trial

court lacked material upon which to assess whether the properties were acquired through the spouses' joint efforts and to evaluate the appellant’s contribution. Again, the appellant’s advocate contention that the house in Ikungi belongs to the appellant’s mother constitutes new evidence at this appellate stage, as stated by the respondent counsel which cannot alter the trial court's outcome. The first ground is, therefore, baseless. The fifth ground of appeal challenges the court's declaration regarding one child being deemed born out of wedlock, asserting that such a pronouncement was rendered without the requisite scientific evidence to substantiate the claim. It is apparent that the petition for divorce by the 13 respondent filed at the trial court mentioned only two issues, the third child was not part of the pleadings. And since no reply was filed in court, it would appear that the trial court had no basis to decide upon a fact not pleading in the pleadings. This is so because, as settled, parties are bound by their pleadings, and the court is, by this principle, barred from going beyond what a party has brought for determination. I understand that there is in the evidence, and so the judgment a mention of a child purportedly born out of wedlock but this mention arose solely during the petitioner’s (now respondent's) attempt to characterise the appellant's alleged

infidelity not an issue brought officially for the courts determination. Therefore, the inclusion of the third child should not have been relevant to the trial court’s judgement and decree , as it was introduced merely to illustrate the appellant's traits rather than to raise an issue for formal consideration. Thus, the need for scientific proof was irrelevant to the matter making the entire complaint a misconception of the trial courts proceedings and judgment. The sixth ground challenges the reasons for granting the petitioner custody of the children. According to the appellant, the decision was based solely on the respondents ' being Government employees without taking into consideration the respondent's parenthood as the mother of 14 the said children. I also don’t find validity on this ground. As right stated by the respondent counsel, under sections 4 and 37 of the Child Act, custody of the child may be given to either parent or an alternative individual. This tells that as the child’s father, the respondent had the right to request custody of the children from their marriage. However, regardless of who is in court for the said order, the paramount consideration is the child's best interest. This is the position in section 125 (2) (a), (b) of the Law of Marriage Act, which states that in deciding in whose custody an infant should be placed the paramount

consideration shall be the welfare of the infant. Section 4(2) of the law Child also establishes the principle that the best interests of a child shall be a primary consideration in all actions related to children, whether undertaken by public or private social welfare institutions, courts, or administrative bodies. On custody, section 26 (1)(b) of this law upholds a child's entitlement to reside with the parent deemed by the court to be best suited for raising and caring for the child; Section 37(4) requires the courts to consider the child's best interests when granting custody and Sections 26 and 39(2) of the Law of the Child Act, along with Rule 73 (a) to (i) of the Law of the Child (Juvenile Court Procedure) Rules, GN No. 182 of 2016, further enumerate the factors to be considered when assessing the child’s best 15 interests in determining who should be granted custody. These factors include age, sex, independent views of the children, sibling unity, continuity of care, and their physical, emotional, and educational needs. Additionally, consideration is given to each parent's willingness to support the child's relationship with the other parent. In the determination of custody awarded to the respondent in this case, the court analyzed both the evidence and the applicable law in relation to the best interests of the children, ultimately concluding on the

appropriate custodian. In this analysis, several pertinent sections were examined, notably sections 4, 37, 39, 44, and 45 of the Law of Child Act [Cap 13 R: E 2019], in conjunction with sections 129(1) and 130 of the Law of Marriage Act [Cap 29 R: E 2019] and his reasoning reflects consideration of several : firstly, the fact that the children were enrolled in boarding school during the relevant period; secondly, the ages of the children, being 17 and 13, both exceeding the age of 7 years; thirdly, the petitioners' demonstrated accountability throughout their lives, as it was noted that the petitioner has consistently provided for their needs; fourthly, the economic capacity of the petitioner, who is employed by the government and is thus positioned to support his children adequately; and lastly through not so expressly stated, the expressed desire of the 16 petitioner, articulated through his request for custody and maintenance of the two children. The court duly considered all relevant circumstances and granted the appellant visitation rights. I find nothing wrong with this order. The appellant's assertion that the decision to award custody was predicated solely on the respondent's status as a government employee is unfounded. The answer to whether I should reverse the custody order is negative. As an appellate court, I see no evidence in the record to support the appellant's request, as this court lacks the necessary materials to justify reversing the existing custody order. The appellant's appeal lacks merit and is, therefore, entirely dismissed. Each party shall bear its own costs. DATED at DAR ES SALAAM, this 14TH MARCH 2025 E.Y. MKWIZU

JUDGE 17