hadija ramadhani kifua vs khamisi baruani swedi 2022 tzhc 13540 5 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB - REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE PC CIVIL APPEAL NO 39 OF 2022 (Arising from the decision of District Court of Temeke at Temeke One Stop Judicial Centre in Civil Appeal No.13 o f2022 delivered by Hon. Swai S. O., SRM on 9thJune, 2022 and originated from Matrimonial Cause No.102 of2021 of Temeke Primary Court) HADIJA RAMADHANI KIFUA.....................................APPELLANT VERSUS KHAMISI BARUANI SWEDI................................... RESPONDENT JUDGMENT 29th September & 5th October, 2022 A.P. KILIMI. J.: The appellant petitioned for divorce, division of Matrimonial properties, Custody and maintenance of children at Temeke Primary Court at One Stop Judicial Center. The respondent mentioned above conceded for decree of ✓ divorce be issued at the commencement of the triai. The trial court proceeded with other prayers and at the conclusion ordered the valuation to be made for their house at Kinondoni, another house and farm at Mkuranga be sold, the trial court further ordered the proceeds after sale be divided to the appellant and respondent at 35% and 65% respectively. Further the trial Court ordered Respondent to pay Tsh. 150,000/= to the appellant each month as maintenance to two children. The responded aggrieved filed an appeal at Temeke District Court at Temeke One Stop Judicial Center. In conclusion thereat, the first appeal reduced the amount supposed to be paid by respondent for maintenance to be Tshs 100,000/= per month and other order in respect to division remained undisturbed. To ease understanding of the context founding the instant appeal, it is pertinent to present its background albeit in brief, as revealed by the evidence adduced at the trial. The appellant and respondent were wife and husband who celebrated Islamic marriage on 4/05/2003. The marriage was blessed with two issues namely Baruani Hamisi aged 17 years and Nurath Hamisi aged 6 years. It was the contention of the appellant at the trial, that she and the respondent had acquired several assets during the existence of their marriage. These involved joint effort because she was doing business of selling clothes, shoes and perfumes. Through above mentioned contribution with the respondent who was the Police Officer, they managed to get three houses situated at Kinondoni Hananasifu, Kigoma and the other situated at their farm at Kisemvule Mkuranga. Moreover, she said after the Respondent has retired, they had a house at Bukoba which they sold at Tsh 27,000,000/= and agreed to be divided among themselves, therefore she does not dispute it. In this court, the appellant aggrieved by decisions of the courts stated above has moved this court basing on the following; , 1. That the Honorable Senior Resident Magistrate erred in law and fact by making decision without considering the evidence of the Appellant. 2. That, the Honorable Senior Resident Magistrate erred in law and fact by holding that the matrimonial properties be divided into 65 percent for the Respondent'and 35 percent should go to appellant. 3. That, the Honorable Senior Resident erred in law and fact by allotting Tshs 100,000/= as maintenance of the children. Wherefore, the appellant prays that, this appeal be allowed, the decision of the District court of Temeke at One Stop Center be set aside and quashed with costs. During the hearing of this appeal both appellant and respondent argued themselves. It was the contention of the appellant that, the first appellate court did not consider evidence to vary the amount of maintenance from Tshs. 150,000/= to Tshs 100,000/=. Further the appellant submitted that She contributed much on that properties and struggling to maintain'children without respondent care, so she says the trial court giving her 35% was not fair. The appellant further submitted that in fact she prays to get her share as decided by the trial court, since the respondent has started selling land they used to own together. This is evidenced once she got message of Tshs 2,000,0000/= entered in her account, when she asked the respondent, he replied that is her share in the said division of matrimonial properties after selling a part of their land at Mkuranga. Nonetheless despite of informing him that she has secured purchaser of land to a reasonable price, the respondent refused to sell land so that they can divide proportionately. The respondent in reply submitted that, the trial court was right to award him more percentage because as a policer officer earned much money than the appellant, also he stays with his son Buruhan Hamis who was taken recently by the appellant. The respondent further said appellant refused to give him custody of their young child, while in respect to the farm he submitted that in 2020 he sold part of their farm atTshs.8 million and gave the appellant Tsh.3,500,000/= , then after the trial court case, he sold again • a piece of land at Tshs 4,850,000/= for the purposes of sending the child to school, he also gave the appellant Tshs 2,000,000/= as maintenance for children, In respect to the house of Kinondoni respondent said is in bad condition and they were told that is among of houses the government has plan to demolish them, therefore the house can cannot be purchased. In rejoinder the appellant submitted that she stays with all two children, aged 18yrs and 7 yrs. Respectively. She also conceded that the house of Kinondoni is in bad condition and cannot be sold, she insisted to contribute much to the acquiring of matrimonial properties and showed evidence at the trial. Having considered the rival submissions of the parties and grounds of appeal raised, it is my wish now to merge the first two ground because they talk on the same issue, which is whether division of matrimonial properties ordered by the trial court and affirmed by the first appellate court was justifiable. It is a trite law that the extent of contribution by a party in the matrimonial proceedings is a question of evidence. Once there is no evidence adduced to that effect, the appellant cannot blame the High Court Judge for not considering the same in its decision. In our view, the issue of equality of division is envisaged under section 114 (2) of the LMA cannot arise where there is no evidence to prove extent of contribution. (See Gabriel Nimrod « Kurwijiia v. Theresia Hassan Malongo Civil Appeal No. 102 of 2018 CAT (unreported)) It is also my opinion when considering evidence of joint effort to the contribution, the court should also regard matrimonial obligations or work or intangible considerations such as love, comfort and consolation of wife to her husband, the peace of mind the husband gets from a loving wife and the food she prepares for him. (See also the case of Bi Hawa Mohamed v. Ally Seif, (1983) TLR, 32 and Chakupewa v. Mapenzi and Another EALR (1999) 1 EA 32) Having highlighted the above guiding principles in this matter, what I glanced from the record, It is undisputed that those properties mentioned were proved to be matrimonial properties, the trial court considered the nature of work for each spouse towards the contribution of acquiring those properties, It was evidenced that respondent was a police officer and appellant a moderate businesswoman but also caring for children and home, in doing so the respondent managed to do other bigger things than the appellant, nevertheless what she did cannot be ignored to the acquisition of those things which in law of course remains to be matrimonial properties. This envisaged in law that, the issue of extent of contribution made by each part does not necessarily mean monetary contribution, it can either be property or work or even advise towards the acquiring of the matrimonial properties. (See Gabriel Nimrod Kurwijiia v. Theresia Hassan Malongo supra). In the conclusion the Primary court after assessing the evidence tendered was of the view, the appellant and respondent to have 35% and 65% respectively after valuation. I have considered the opinion of the trial court in reaching the said per centum, and the fact it was evaluated by the first appellate court and concurrently reached on the same decision. I am satisfied that the trial Magistrate properly analyzed the evidence availed before her and reached to an appropriate conclusion, hence there is no justification for me to interfere with the decision of the two courts below. In view of the aforesaid, I find the first and second grounds of appeal to be devoid of merit and are hereby dismissed. (See the case of Cecilia Mshamu V. Dick Kawogo, [2001] TLR 318). In regard to the third ground, the first appellate court altered the order of maintenance from Tshs.l50,000/= to Tshs.l00,000/=. It is trite law that a first appeal is in the form of a rehearing. The first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings of fact, if necessary. See the decisions of the Court of Appeal in Future Century Ltd v. TANESCO, Civil Appeal No. 5 of 2009, and Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (all unreported). The Court of Appeal held in Future Century Ltd v. TANESCO, (supra) that: - "It is part o f ourjurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision." The first appellate on reaching the said amount considered the monthly income of the respondent who is now a retired police officer and the other child who is now a grown-up person of 17 years. I have considered the reasoning of this court; it is my considered opinion; this court was justified to reach the said amount after scrutiny. Therefore, I hold the third ground also devoid of merit and is hereby dismissed. In conclusion thereof, I am satisfied that the trial Magistrate properly analyzed the evidence availed before her and reached to an appropriate conclusion of division of matrimonial properties to the percentages ordered, hence there is no justification to interfere with the two decisions of the courts below. In regard to maintenance the order of the District court which require respondent to pay Tshs. 100,000/= is hereby sustained. In view of the aforesaid, I find the entire appeal to be devoid of merit, and is hereby dismissed. Taking the nature of the dispute no order as to cost granted. It is so ordered. DATED at DAR ES SALAAM this 5th day of October, 2022. A.P. KILIMI JUDGE 5/10/2022 Court: Judgment delivered in chambers in the presence of both appellant and respondent. Right of Appeal dully explained to them. Sgd: A.P. KILIMI JUDGE 5/10/2022 9