PC MATRIMINAL APPEAL 9719 OF 2024 HAWA MAHAMUDU VS MIKIDADI HALIDI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA PC. MATRIMONIAL APPEAL NO. 9719 OF 2024 HAWA MAHAMUDU APPELLANT VERSUS MIKIDADI HALI DI .. . . .. .. . . . RESPONDENT (Appeal from the Judgment and decree of the District Court of Kigoma at Kigoma) (H. M. Momba, PRM) Dated 5th day of May 2023 In (Matrimonial Appeal No. 6 of 2023) JUDGMENT Date: 05/06/ & 02/08/2024 NKWABI, J.: The appellant, sued the respondent in the trial court vide matrimonial Cause No. 6 of 2022 in which she claimed for division of matrimonial assets and maintenance of the issues of the marriage. She did seek for divorce to be confirmed because the respondent had issued her with divorce writ(s) ta/aka owing to misunderstanding between the parties to the marriage. After hearing the evidence, the trial court was satisfied that the marriage had broken irreparably and issued a divorce decree. It proceeded to divide the matrimonial assets at 20% to the appellant and 80% to the 1 respondent. It also gave an order for maintenance of the issues of the marriage, in that the respondent had to provide T.shs 6,000/= three times a week for the two children which the respondent used to pay for food and he was ordered to continue providing them with school needs and cater for the children's health services. This is a second appeal because the appeal by the appellant in the district court appears to have been dismissed though with a direction. The appellant preferred this appeal in which she lined three grounds of appeal which are: 1. That, the pt appellate Court erred both in law and in fact for not considering and dividing the other matrimonial properties which were jointly acquired by the parties during substance of their marriage to wit a forest (msitu) and two shops. 2. That, the pt appellate court erred both in law and in fact in failing to order equal division of matrimonial properties and in upholding the order of 20% to 80% by the trial court despite the cogent evidence by the appellant which proved that she has contributed much to the acquisition of matrimonial properties. 3. That, the 1st appellate court erred both in law and facts by failure to order the respondent to provide a sum total of Tanzania shillings 2 400,000/= per month as maintenance and medical insurance for his children. The appellant is eager to be availed with the below mentioned reliefs: 1. That this appeal be allowed with costs. 11. That, the court be pleased to order equal division of matrimonial properties jointly acquired during the substance of the marriage. 111. That, the court to order the respondent to provide maintenance of T.shs 400,000/= per month and medical insurance for his children. The appeal was heard by oral submissions. Both parties appeared in person, unrepresented. In submission in chief, the appellant contended that the respondent was ordered to maintain his biological issues. She said there was division of the matrimonial properties jointly acquired. She further maintained that the respondent did not hand over the properties to her. She also claimed that the respondent is not maintaining the children, so she needs assistance. The appellant added that the respondent has not built a house for her. At the end of her submission, she prayed for justice as per her 3 grounds of appeal. She also beseeched the Court that the farms be divided equally, and has to build a house for her. The respondent had a brief reply. He stated that there are exhibits as to payment of maintenance. He informed this Court that he pays T.shs 18,000/= per week. He was eager that the appeal be dismissed. The Appellant's rejoinder was short as wel. She stated that a at time she was reported like a thief when she went to harvest banana. She insisted she be availed with justice. I find it imperative to state that this is a second appeal. In the first appeal, the district court concurred with most of the findings of the trial court and slightly altered the verdict on the house that was allocated to the appellant. I would say that normally, verdicts issued by courts of law depend on the evidence that is available in the case file. I will start with the complaint about the amount of maintenance ordered by the trial court and supported by the district court. The appellant wants this Court to enhance it to T.shs 400,000/= per month. But there is no evidence to support the claim. In addition, the appellant herself said that 4 the respondent married another woman, that is allowed under Islamic religion. In considering the amount for maintenance that has to be considered just as rightly done by the first appellate court. I find no evidence that would justify interference with the decision of both lower courts in respect of the amount of maintenance. In doing so, I think I am well supported by Saidi v. Msamila [1970] H.C.D. No. 228 (PC), in which Makame Ag. Judge, as he then was, held that: "Respondent was responsible for the maintenance of the child. However, the figure the primary court magistrate tixed. Shs. 150/- per month was arbitrary in the absence of any knowledge of the respondents salary. "[Emphasis mine]. I turn next to consider and determine the 2nd ground of appeal. The discussion of this ground of appeal will also determine the 1st ground of appeal. In this ground, it is lamented by the appellant that the pt appellate court erred both in law and in fact in failing to order equal division of matrimonial properties and in upholding the order of 20% to 80% by the trial court despite the cogent evidence by the appellant which proved that she has contributed much to the acquisition of matrimonial properties. 5 -. The manner of conducting the division of the matrimonial assets acquired by joint efforts to the parties to a marriage is clearly stated in Gabriel Nimrod Kurwijila v. Theresia Hassani Malongo, Civil Appeal No. 102 of 2018 CAT (unreported) where it was clearly held: "The extent of contribution is of utmost importance to be determined when the court is faced with a predicament of division of matrimonial property.... It is clear therefore that extent of contribution by a party in a 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 viei,,v, the issue of equality of division as envisaged under section 114 (2) of LMA cannot arise also where there is no evidence to prove extent of contribution. // In this appeal, particularly in the trial court, the appellant proved nothing. She merely mentioned the alleged properties such as plots, houses, and businesses. She did not prove the value or size of any. It is difficulty to determine what amount to allocate to each. The trial court also found that according to exhibit D2, the respondent was a mere servant in the alleged 6 business and awarded the respondent only 20% of the properties jointly acquired. I do not find any ground to fault the trial court's finding. Rather, I find it troubling that the district court ordered the respondent to do a rehabilitation of a house without considering the income of the respondent. I quash that order of the district court. I affirm the decision of the trial court. Consequently, I dismiss the appeal because it is unmerited. Each party shall bear their own costs on account of the fact that this is a family matter. It is so ordered. 7