20130429 TZHC Iringa

IN THE HIGH COURT OF TANZANIA AT DODOMA PC CIVIL APPEAL NO. 2 Of 2012 (ARISING FROM CIVIL APPEAL NO. 23 OF 2011 OF THE DISTRICT COURT OFDODOMA - ORIGINAL CIVIL CASE NO. 3 OF 2011 OF CHAMWINO PRIMARY COURT DODOMA) EMMANUEL K. KIBONA .................................. APPELLANT versus UPENDO JIMMY ...................................... RESPONDENT 6/11/2012 & 29.04.2013 JUDGEMENT HON. MADAM, SHANGALL J. -~ . The appell~nt' s marriage to the respondent was dissolved b{'•... ' . Chamwino Primary Court in Civil Case No. 38 of 2005 on 11/07/2005. The Primary Court also ordered for the distribution of matrimonial properties in that regard the respondent was entitled to ½ of the value of the matrimonial house and the appellant ½ of .. . , the value of the same. Other properties/items like household utensils, furniture arid livestock were to be divided equally to the parties pursuant to the order of the trial court. The appellant was aggrieved by the decision of the trial court in so far as the distribution of matrimonial assets is concerned and the fact that the trial court awarded the respondent custo,dy of children. Ori 1 appeal to the District Court it was ordered that, the matrimonial house should exclusively be owned by the respondent in that the respondent was experiencing hardship as such the house would help her to continue taking care of their four children whom the appellant abandoned for another wife. The district c0urt also found that the respondent was entitled to mainten<!:mce and the appellant was subjected to that responsibilit'J. ·Dissatisfied with that decision the appellant successfully appealed to this court in (PC) Civil Appeal No. 17 of 2009. This court (Hon. Kwariko, J) allowed the aP,peal on the grounds that the two lower courts erred to order for division of matrimonial properties and payment of maintenance while there was no evidence adduced to the satisfaction of, sections 114, 115 ( 1) and 116 (a) and (b) of the Law of Marriage Act. Secondly, the first appellate District Court erred in law and fact to order the custody of children in contravention of section 125 of Marriage 3 Act. The High Court observed that- the appellate District Court had n_o basis to put the Children under the custody of the respondent because there was no evidence adduced before the trial court to assess on whose custody the welfare of the four children would have been gudranteed in pursuant to section 125 (2) of the Law of Marriage Act. On both _grounds the High Court advised the parties to fil'e a proper case before the trial court seeking for the above said two reliefs upon adducing sufficient evidence. Following that decision of the High Court, the respondent opted to institute a civil suit against the appellant before the trial primary court in Civil Suit No. 3 of 2011 seeking for the maintenance of their four children and division of matrimonial property. "• , f In that suit, which is subject to this appeal the respondent prayed for maintenance of their four children in which case she prayed for TShs.600,000/= and division of matrimonial property. The respondent listed a lot of items allegedly to be the matrimonial properties including a matrimonial house situated at kikuyu area, a plot at Kisasa a farm at Kitelelo, Five head of cattle etcetera. On his part the appellant prayed to the trial court for 4 the sell of the matrimonial hovse and equal division of the proceed although he had rented another house where he was liberating with his new wife. The appellant also prayed to the trial court to have the custody of the children as he has the means to _provide the same with necessary needs while the respondent has nothing. The appellant told the Primary Court that he cannot afford to provide TShs.600,000/= as maintenance because his salary is TShs.850,000/= which after several loan deduc'fion he -remains . ~ with only TShs.350,000/=. The appellant's evidence as to his being incapable to provide the respondent with what he termed a huge amount for maintenance did not persuade the trial primary court for it ordered him to pay the respondent ½ of his salary (TShs.283,333/=) as maintenance for the four children. At the same time the trial primary court awarded the matrimonial house to the respondent together with some properties therein to enable her to take care of the four children of the marriage. The appellant was left with the plot at Kisasa and a farm and some . other properties which he had already grabbed from the house . when he left his family for another woman. The appellant was not satisfied with the decision of the trial Primary Court. He filed an appeal before Dodoma District Court vide Civil Appeal No. 23 of 2011. In its inquistorial and detailed decision the first appellate District Court ruled in favour of the respondent and found that the trial court was correct to award ½ -, 5 of the appellant's salary to the respondent and that there was no need of further inquiry on the salary of_ the appellant because it was the appellant who stated that his salary is TShs.85O,OOO/= and the calculation 9ught to be made from that amount regardless of the qppellant' s other· personal commitments. Also the first appellate District Court joined hands witl71 the trial primary court when it held that the stand of the appellant to insist for the sale of the matrimonial house without considering the interest and welfare of his own four ~hildren connotes selfishness on his side ·because if the house is sold the children would remain homeless and destitute while. he is having a goodtime with his new find. The firft appellate District Court found that the trial primary -col!.lrt was 1 right to rest the custody of the children to the ( respondent because there is evidence that at the time when the marriage_ started to climb rocks, it was the appellant who decided to leave the matrimonial home leaving the respondent and children in the house without his care or assistance. In all that period of the conflict the respondent was able to c0re for her children and the said children who were still young were willing to stay with their biological mother to avoid the tortures from the alleged step mother. '. .The appellant was again not satisfied with the decision of the first appell~te District Court. · With the legal services from Mr. Nyabiri, learned advocate, the appellant has filed this second appeal on the following reasons. - . First, the appellant argues that the suit before the.,.. trial primary courr,Civil Case No. 3 of 2011 ought not to have b"een filed and entertained because the matter had already been dealt with by the High Court in (PC) Civil Appeal No. 17 of 2009. In other wards the appellant was actually saying the matter was res- judicata because some issues like the distribution of Matrimonial property and maintenance of children were determined and nullified by the High Court. The appellant also complained that it was wrong for the lower courts to grant the respondent maintenant:e at ½ of his salary when in fact there was no fair • inquiry of 1he same given that there was no consideration as to the appellant's survival after the deductions. The appellant submits further that the lower courts had no legal right to guarantee the respondent exclusive right over the matrimonial house when the same was obtained by joint efforts of the parties. The appellant contends further that it was wrong for the lower courts to award custody of children to the respondent when she has no means to guarantee their welfare. 7 In reply, the respondent told° this court that the lower courts were right in granting the respondent maintenance, custody of the children and the right to matrimonial house as the respondent and her children were living a terrible life with no financial assistance to accommodate the four children after the appellant ·::t has left them for another wife. The respondent also said the hov_se was rightly . given .. to her because she would have suffered a terrible difficult experience in lit~ with children if the house was sold. and compelled to rent a house. . . The respondent who was represented by Njulumi and company, Advocates went on to tell the court that the children will be safe. . with her and not the appellant for the appellant has , married another wife and the children had once already experienced hardship in her custody. The.respondent also stated that her suit before the primary court in Civil Case No. 3 of 2011 was not res-judicata because it was filed in compliance with the court advice in the (PC} Civil Appeal No. 12 of 2009. In his rejoinder submission the appellant said that, the respondent did not sufficiently responded to his submission and asked this court to consider his arguments. ,_ 8 I have carefully and seriously gone through this appeal and . found that the suit for respondent in Civil Case No. 3 of 2011 was not res-judicata before the trial primary court for the appellant was trying to ma.ke the most of her second chance to do what she did not do before the first trial court. In other words she complied with the advice of the court in the (PC) Civil Appeal No. 17 of 2009 where she was advised to file a fresh suit for division of mGtrimonial assets if she wished. It is also evident that in the same decision (judge,ment) of the court at page 12, the court advi;'ed the parties to file a fresh suit seeking for the grant of custody of children of marriage. Therefore there was nothing to be termed re-judicata in this matter. The law provide that where a decree of separation or divorce is granted, it shall include provision for the maintenance and custody of the infant's children of the marriage if any. In this • case the qippellant is already married or living with another woman and he is comfortably living somewhere else. His ex-wife, respondent who is jobless is still living with their four children in their once matrimonial house. It is undisputable that for several years since their matrimonial conflict started and the appellant eloped · from the matrimonial home, the respondent · has . been single handed taking care of the children who are still young and schooling. However, having divorced the respondent the appellant has been insisting on the sale of the matrimonial house 9 and equal division of the proceeds without any consideration or concern on the position of his innocent issues of the marriage. No wonder he was labled selfish. The courts below did seriously consider the right of those ch)ldren ori the basis of the paramount . interest of the children and undesirability of disturbing their life by changing of custody and eventually ordered the respondent to remain in the house with the children. In fact the reasoning of the lower courts in this matter sound very impressive when they s.tated that the basis of the ·matter is not solely about maintenance of a spouse after the dissolution of marriage but maintenance of the respondent in order to care and raise the four children of the marriage. The first appellate District Court found that section 1 15 and 116 of the Law of Marriage Act which deals with maintenance of wife after dissolution " of marriage and assessment of maintenance of the • , spouse are~not relevant in the circumstances of this case. < Consequently I hold that ½ of the appellants salary will help the respondent to care for the children under her custody. It is that so because the appellant was also not able to counter the respondent's claim that the children ever experienced hardship under the custody of the appellant's new wife. I also find myself not offending the provisions of section 125 (2) of the Law of . ;, 10 Marriage Act but rather protecting and promoting the welfare of . . the children by not letting them under the custody of the appellant's wife~ whose allegations as to mistreatment of the respondent's children have ·not been disapproved by the appellant. The case of Ramesh Rajput vs Mrs. Sunanda Rajput (1988) TLR 96 is pertinent here. The welfdre of the children can not solely base on financial capability but as well as their safety and security. As regards the· complaint by the appellant that it was wrong for the lower court to grant exclusive right to the respondent over the matrimonial . . house situated at Kikuyu thereby d~priving him of his right to a share thereof, I find that pursuant to the provision of section 114 ( 1) of the Law of Marriage Act, the trial court in Civil Case No. 3 of 2011 was consistent With the welfare of the four children whom in " . its opinion. would comfortably be under the custody of the respondenf as pointed above. The children's welfare cannot be guaranteed by rendering them homeless and destitute while their biological father, the appellant is enjoying life with his new find. There is evidence that the appellant has managed to rent a house somewhere else but he is insisting to the ?ell of matrimonial house to the detriment of his own four children. At any rate, section 114 ( 1) of the Law of Marriage Act does not say it is wrong for either of the parties to have exclusive right over a certain property if the circumstances please. After all the appellants right . 11 - over the matrimonial properties was properly considered by the lower courts when he was given several properties inciuding a farm at Kitelelo and a plot at Kisasa area within Dodoma Municipality. The appeal is hereby dismissed for lack of merits. Each party to s'houlder its costs. M.S. SHA~4u 1t JUD(;E I 29/04/2013 Judgernent delivered to-date 29 th April, 2013 in the presence ~ of Mr. Ny<ilbiri, learned advocate and in absence of the respondent and her advocate. ,/? ,[/ ,;,\ M.S. SHJJ;J~;- ,,,. i -- I , >> JUDGE l 29/04/2013