Honoratus vs Maria Santisma 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA PC CIVIL APPEAL NO. 4861 OF 2024 (Arising from Civil Appeal No. 70/2023 District Court of Muleba and Originating from Matrimonial Cause No. 19 of2023 OfMuieba Urban Primary Court) HONORATUS MWONGEREZI,.... ..................... APPELLANT VERSUS MARIA SANTISMA MPUMBYA................ ......... .......... .......... RESPONDENT JUDGMENT 22nd and 23rd August, 2024 BANZI/J.: The appellant and respondent were husband and wife who contracted their marriage under Christian rites on 12th May, 2007 at Rutabo Parish. Their marriage was blessed with three issues, two sons and a daughter. However, their anticipation to live together until death do them apart was not fulfilled after they entered into misunderstandings which led the respondent to leave the matrimonial home and start a new life in a rented house, leaving the appellant in their matrimonial home with all three children. Thereafter, the respondent petitioned for divorce, division of matrimonial properties and custody of children before Muleba Urban Primary Court (the trial court). Page 1 of 13 In her evidence before the trial court, the respondent contended that, there were a lot of quarrels in their family and one day their house was broken and the money belonging to a certain group was stolen. The appellant accused her for stealing that money. He beat her alleging that, she was the one who stole it. She decided to leave and rent a house but later she decided to go back to take care of her children. They went for reconciliation at the gender desk and In the church, however, quarrels continued and one day the appellant strangled her while she was asleep. She decided to start a new life by taking her belongings like bed and mattress, 8 pots, sofa set, and other home utensils. She further contended that, she was no longer fulfilling her conjugal duties to her husband because there was no peace for her to be ready for that. Concerning the matrimonial properties, she contended that, they have one house situated at Muleba Rural which they built together though she found him with the plot In his defence, the appellant denied to have beaten her contending that, she was not listening or obeying him as her husband and she wanted to do whatever she wanted in the house. On matrimonial properties, he contended that, the respondent found him with the plot which had a foundation. Finally, he urged the trial court not to grant divorce. After hearing both parties, the trial court was satisfied that, marriage between the Page 2 of 13 parties was irreparably broken down. In her finding's, the learned magistrate made for following orders; the matrimonial properties; the plot and a house to be sold and the product to be divided in 35% to the wife (respondent) and 65% to the appellant (husband) according to their contribution; children were placed under custody of the respondent and the appellant had to pay 250,000/= monthly for their maintenance. Also, the appellant was allowed to visit his children any time and the children were allowed to visit their father at any time they wish. Aggrieved by that decision, the appellant, unsuccessfully appealed to the District Court of Muleba (the first appellate court) hence this appeal which was predicated under the following grounds: 1. That the first appellate court erred in law and facts to decide that the appellant has failed to show the error committed by the court (trial court) for an order to place the children in the custody of their mother, the respondent; 2 That the first appellate court erred in law and facts to hold that the records of the trial court and evidence of the respondent speak volume of the irreparable break down of the marriage; 3. That the first appellate court erred in law and facts to hold that the trial court rightly assessed the contribution Page 3 of 13 each party made towards the development of the matrimonial house at 35% for the respondent and 65% of the appellant; 4. That both the lower courts erred in law to decide that marriage has broken down beyond repairs and failure to properly evaluate the evidence by the parties. At the hearing, the appellant who was also present, enjoyed the services of Mr. Peter Matete, learned counsel while the respondent appeared In person, unrepresented. Submitting on the first ground, Mr, Matete contended that, the evidence of the trial court shows that, the first child was 15 years, the second 14 and the third 12 years. Also, before filing for divorce, the parties had already separated and the children were living with their father. However, in its decision, the trial court ordered children to be under the custody of their mother, which was confirmed by the first appellate court, without giving reasons for changing the place of abode of those children. According to him, the children were old enough to express their independent opinion on their wishes of whom, between the appellant and the respondent, they would prefer to stay with considering that, the respondent is living in a rented house which is not described if it will enable her to stay with children in comfortable manner, as two of them are boys. He cited the case of Nacky Page 4 of 13 Ester Nyange vs Mohayo Marijani Wilmore (Civil Appeal No. 169 of 2019) [2022] TZCA 507 TanzLII which laid down the factors to be considered in granting custody of children which are similar to sections 26 and 39 (2) of the Law of the Child Act [Cap. 13 R.E. 2019]. Arguing the second and fourth grounds jointly, he submitted that, there was no proof that marriage was broken down irreparably because the cruelty that was alleged by the respondent was not proved. According to him, the alleged cruelty was an ordinary wear and tear of marriage life. For cruelty to be proved, there must be consistent pattern of behaviour. However, in this case, misunderstandings happened when the appellant was alleged to have stolen money from a certain group, the fact that made her to leave home. Hence, the trial court erred to issue divorce instead of separation so that the couple have time to cool down their temper and then re-unite to live together as husband and wife. Concerning the third ground, Mr. Matete challenged the distribution of matrimonial properties ordered by the trial court contending that, the appellant acquired the land and began to construct the foundation prior to their marriage, hence, improvement contributed by the respondent did not Page 5 of 13 worth 35% which she was awarded. Thus, he prayed for the appeal to be allowed by quashing the judgments of both courts below. Oh her side, the respondent prayed for the decisions and orders of the lower courts to be upheld contending that, there was no error committed by the trial court to grant custody of children to her because she was the one who was providing the children with food, clothes and education to the large extent. She also insisted that, she was not ready to continue with marriage because she has gone through a lot. According to her, she was often times, beaten and once she was strangled for three hours. Concerning the issue of contribution, she conceded to have found the appellant had bought the plot but With no foundation as the foundation built prior to their marriage was demolished. They started to build another foundation together and in the same land there is another unfinished house which she has contributed 90% of its construction. Finally, she prayed for the appeal to be dismissed by upholding the decisions and orders of the two courts below. In his brief rejoinder, Mr. Matete disputed the allegations by the appellant that, she was providing for food, clothes arid shelter to the children and being strangled for three hours as the same is not reflected on records. Page 6 of 13 After receiving the submission of both parties, and considering that parties are still fighting for custody of children, I found it prudent to summon all three children pursuant to section 29 (a) of the Magistrates Courts Act [Cap. 11 R.E. 2019] for purpose of obtaining their wishes under section 125 (2) (b) of the Law of Marriage Act [Cap. 29 R.E. 2019] ("the LMA") before final determination of the matter. Currently, the first born is 16 years old, the second child is 15 years old and the last born is 12 years old. Upon being asked by this court where would they wish to stay, all three expressed their wishes of staying where they are staying now, at their house with their father. Each one said to be happy and comfortable living with their father. Having thoroughly examined the records, grounds of appeal and submissions by both sides, the issues for determination are; first, whether marriage was broken down irreparably, second, whether matrimonial properties were properly distributed and third, whether the order for custody of children was justified. Starting with the first issue, it is undisputed that, the parties are no longer speaking the same language on the subsistence of their marriage. The respondent, on her side, is complaining that, there were unresolved quarrels between them and she has passed through a lot hence, she is not Page 7 of 13 ready to continue with marriage. On his side, the appellant denied to have ever beaten her contending that, she has her own plans. However, in his submission before this court, Mr. Matete contended that, the alleged cruelty inflicted upon the respondent were normal wear and tear in marriage life. Although the appellant denied to have beaten the respondent, in her testimony, the respondent explained how the appellant was beating her to the extent of strangling her. The fact the the appellant strangled the respondent was not cross-examined by the appellant. Since he failed to cross-examine her on that vital aspect, it connotes that, he accepted what was stated by the respondent. It is an established principle that, where a party fails to cross-examine a witness on crucial issue, he deemed to have accepted such evidence and the court should be hesitant to believe him at a later stage when rebutting that issue. In the case of Patrick William Magubo vs Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 TanzLII, it was stated that: ’’ ..it is trite law that, a party who fails to cross examine a witness on a certain matter is deemed to have accepted and will be estopped from asking the court to disbelieve what the witness said, as the silence is tantamount to accepting its truth" Page 8 of 13 In our case, the appellant accepted the evidence of the respondent about strangling her. Notably, beatings to the extent of strangulation cannot be termed as wear and tear of marriage life as suggested by the learned counsel for the appellant. In my considered view, and as it was held in the case of Julia Mazengo vs Jackson Leganga [1986] TLR 24 that, ill- treatment of the spouse cannot be described as the reasonable wear and tear of marriage life. The spouse is not expected to put up with the ill- treatment subjected to him/her. In the circumstance, considering that the parties have been in endless quarrels which necessitated the respondent to leave the matrimonial home, it is evident that, and as rightly concluded by the two courts below, marriage between the parties cannot be resurrected, hence, broken down irreparably. The second and fourth grounds are dismissed for being unmerited. Concerning the second issue, according to section 114 (1) of the LMA, the court is empowered, when granting or subsequent to the grant of a decree of divorce, to order the division between the parties of any assets acquired by them during the subsistence of marriage by their joint efforts. In doing so, it has to consider among other things, the extent of the contributions made by each party in money, property or work towards the acquisition of the assets and the needs of the children, if any, of the Page 9 of 13 marriage. See section 114 (2) (b) and (d) of the LNIA. Also, as it was stated in the case of Gabriel Nimrod Kurwijila vs Theresia Hassani Malongo (Civil appeal No. 102 of 2018) [2020] TZCA 31 TanzLII, the extent of contribution by a party in matrimonial proceeding is a question of evidence. In this case, the appellant is alleging that, there was no fair distribution of matrimonial properties as the trial court did not assess the contribution of the respondent before awarding her 35%. In her testimony before the trial court, the respondent stated that, she found the appellant with a plot and they built the house by their joint efforts. On his side, despite contending that, respondent found the plot with the foundation, the appellant has not disputed about the house being built during the subsistence of their marriage. Therefore, even if the parties did not contribute equally in erecting the said house, it is my considered view that, each party has contribution to the improvement of the matrimonial house either monetary or in Work form. Even maintenance in one way or another amounts to contribution. That being the case, the respondent deserved to be given 35% as her share in the said house. Reverting to the issue of custody of children, the learned trial magistrate granted custody of all children to the respondent on the reason Page 10 of 13 that, they are still young therefore, it is desirable for all of them to stay with their mother. Before the first appellate court, the appellant faulted that decision contending that, the children were living with him and the respondent knows nothing about them which indicates that, she does not need them. However, that complaint did not impress the learned magistrate to reverse the order of the trial court, consequently, he upheld the decision of the trial court. The fight for custody did not end there, before this court, the appellant is still insisting that, as the children were living with him during their separation and after divorce, it was an error to change their place of abode without giving reasons considering that, the respondent is living in a rented house which is not known if it would enable those children to live in comfortable manner as two of them are boys. As alluded above, this court had opportunity of summoning the three children in order to receive their wishes as they are all old enough to express their independent opinion. Upon being asked, all three expressed their wishes of staying where they are staying now, at their house with their father. Each one seemed to be happy and comfortable living with their father. However, they used to visit their mother once or twice per week depending on their school schedule. It has been held by this court in numerous decisions that, where the child is of the age to express his views, Page11 of 13 that views have to be sought before granting custody to any of the parents. See the case of Mariam Tumbo vs Harold Tumbo [1983] TLR 293. The rationale of seeking his views, is to make sure that the child is placed in a safe place, free of harms or abuse and where there is conducive environment for his/her better living. Therefore, where the views of the child are for his/her welfare, the court has to consider that wishes. Had the trial magistrate considered well the age of the children and gave them opportunity to express their views on whom they would wish to stay, she would not have reached into the decision of granting the custody to the respondent. In my considered view, the trial court erred to order custody of ail children to the respondent, without giving them the opportunity to express their wishes. Under the prevailing circumstances and since all children wished be where they are staying now, with their father, I don't find any compelling reason to change their place of abode where they feel are happy and comfortable. Thus, I find the first ground with merit and I allow it. In that regard, the appeal is partly allowed. All orders of the trial court are upheld save for the following orders. One, the custody order in favour of the respondent is quashed and in lieu, the appellant is granted with custody of all three children with right of visitation to the respondent. Two, the order Page 12of 13 of maintenance against the appellant is quashed. Three, considering that all children are living with their father, the order of sale of plot with matrimonial house is quashed and the appellant is ordered to pay the respondent the amount equivalent to 35% of the total value of the house after conducting valuation. Owing to the nature of the case, each party shall bear its own costs. It is accordingly ordered. I. K. BANZI JUDGE 23/08/2024 Delivered this 23rd day of August, 2024 in the presence of the appellant, the respondent both in person, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal duly explained. Page 13 of 13