hussein issa ramadhani vs zaineta moris patric 2022 tzhc 13753 7 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 22 OF 2022 (Arising from the decision ofDistrict Court o f Temeke at Temeke One Stop Judicial Centre in MatrimonialAppeal No.44 of2021 delivered by Hon. SwaiS.O., SRM on 0h April, 2022 and originated from Matrimonial Cause No.218 o f2021 ofUkonga Primary Court) HUSSEIN ISSA RAMADHANI...............................APPELLANT VERSUS ZAINETA MORIS PATRIC............................... RESPONDENT JUDGMENT 30th September & 7th October, 2022 A.P. KILIMI. J.: The appellant and respondent presumed the marriage as husband and wife since the year 2004 up the year 2020 when their union ended after misunderstanding raised between them. During the said period they were i blessed with two children. Ramadhan Hussein and Shaban Hussein aged 15 and 9 years respectively. The respondent to escape being remained empty handed after this unite disintegrated, sought for the division of properties jointly acquired at Ukonga Primary Court and maintenance of children vide Matrimonial Cause No.218 of 2021. It was her contention at the trial court that, in their union they acquired one plot at Dodoma, one house at Kitunda Dar es salaam, two Tailoring machines and one motorcycle. The Primary Court after heard them on merit, ordered the house to be divided to the appellant and respondent at 70% and 30% respectively, each to get one Tailoring machine, a motorcycle given to the appellant, custody of children was placed to the respondent while the appellant was ordered to provide maintenance at the rate or Tshs. 80,000/= per month and necessaries such as school fees and medical care. Appellant dissatisfied with above decision appealed to the District court of Temeke situated at One Stop Judicial Center Temeke, this court decided by raising the percentages in respect to the house jointly acquired and ordered after valuation the house be sold and each to get fifty percent. In regard to other orders issued by Primary Court remained undisturbed. The appellant being again aggrieved knocked the door of this court with the following grounds; 1. The Appellant Court erred in law and in fact for ordering equal distribution of the house with no base and which is not a matrimonial house and further that the Appellant has neither has a house in Kitunda nor in Chanika making an assumption decision. 2. The trial Court erred in law and in fact for failure to take into consideration of the testimony by the Appellant and his witness and that the Primary Court failed to admit the sale agreement without any justifiable reasons. 3. The trial Court erred in law and in fact for continuing to order the payment of Tshs. 80,000/= as maintenance to the Respondent while the Appellant is living with their children. At the hearing of this appeal both appellant and respondent were unrepresented, thus appeared in person. It was the appellant submission that, they have no any house whether at Kitunda or Chanika, the house alleged belong to his uncle, who was the witness at the trial court, he wanted to tender evidence of the sale agreement which shows that he is the owner but the trial court refused to take it. He further submitted that; he is the one who stays with all children; therefore, he is wondering why is ordered to pay maintenance to the respondent. In responding, the respondent submitted that, the court was right because the house is there, and was jointly acquired because she contributed to buy a plot and later to build the house. She also submitted, at the trial his uncle was having no exhibit showing that he owns the said house and the magistrate asked him whether he has any exhibit, the witness said he was not prepared, so she insisted that, they have a house which is subject to division. The respondent in respect to maintenance submitted that, the trial court made an inquiry to the children and concluded by granting custody to her, therefore was rightly ordered to pay her Tsh. 80,000/= each month as maintenance. In rejoinder the appellant said, the day they went at the trial court respondent made a trick for the children to escape his home and went to court so that she could secure money for maintenance by the order of the court. Having considered the above submission, before dealing with the grounds let me highlight the principle of presumption marriage and its consequences when the same is rebutted. It was in the case of Fatuma Amani v. Rashid Athuman (1967) HCD No. 173 where the court stated that, presumption of marriage is a common law principle which raises a presumption that prolonged co-habitation of parties creates a valid marriage where circumstances to the contrary do not arise. This common law principle is incorporated in our laws under section 160 (1) of the Law of Marriage Act, Cap 29 R.E 2019 which provides as follows: "Where it is proved that a man and woman have lived together for two years or more, in such circumstances as to have acquired the reputation o f being husband and wife, there shall be a rebuttable presumption that they were duly married. " Therefore, in the eye of the law the parties under this presumption is seen to be dully married, this mean when their union is broken, issues of custody, maintenance and whatever property acquired by each of the parties or jointly is required to be taken as matrimonial property until when is proved otherwise. I wish to refer the case of Hemed S. Tamimu V. Renata Mashayo, [1994] TLR 197 where it was held that: - "Where the parties have lived together as husband and wife in the course o f which they acquired a house, despite the rebuttable o f the presumption o f marriage as provided for under section 160(1) o f the Law o f Marriage Act the courts have power under section 160 (2) o f the Act to make consequential orders as in the dissolution of marriage or separation and division of matrimonial property acquired by the parties during their relationship." [Emphasis added]. I have considered what transpired at the two courts below, I concede with the decisions that the appellant and respondent their union qualified under this principle. Now, back to the grounds of appeal, in my view the first and second grounds deal with the prove of properties jointly acquired and I wish to discuss them together while the third ground which is in respect to custody and maintenance will be discussed separately. In determining the first two grounds, two questions appear to me very crucial, that is whether in their union acquired the matrimonial house, if this is answered in affirmative then second question whether the. same was rightly equally distributed by the first appellate court. Before dwelling on these issues, I wish to highlight principles which will guide me. In the case of Shomari Matambo vs Shamilla Ally Civil Appel No.149 of 2019 (unreported), the court had this to say: "For an asset to be regarded as a matrimonialasset, the party making the assertion has to prove that the respect asset was acquired or substantially improved in subsistence o f marriage and throughjoint efforts." Furthermore, a property subject to division must pass three tests, which are enshrined by section 114 of the Law of Marriage Act Cap 29 R.E. 2019. First, it must be a matrimonial property, Second, it must have been acquired by the joint efforts of the parties and third is the extent of contribution. The appellant at the trial court, vehemently rejected that they did not acquire any house during the life time of their union, He contended that the house belongs to his uncle one Bruno Benedict Ndege (SU2), who also testified before the trial court that he merely invited the appellant to his land and build a small house for him. Also, according to typed proceeding of trial court at page 3, the respondent testified that they started to build the alleged house since 2005 and 2008 they started dwell in now is about 12 years. This was supported by one Bemad James Namalia (SM2) who as Masonry built one room and sitting room. The appellant in his submission argued that his uncle wanted to tender evidence of the sale agreement which shows that he is the owner but the trial court refused to take it. As rightly observed by the appellate court I have perused the trial court record nowhere it is shown said uncle attempted that act of tendering exhibit. As this argument rejected by the first appellate court, I also see it devoid of truthfulness. It is settled law that court's record is always presumed to be accurately representing what actually transpired in the court. In legal parlance, this is referred to as the sanctity of the court record. See the case of Flano Alphonce Masalu @ SINGU v. The Republic, Criminal Appeal No. 366 OF 2018 (CAT) Dar es Salaam. This is also substantiated at the trial court judgment at page 7 when the trial Magistrate had this to say; "Kama SU1 na SU2 wanadai nyumba hiyo si ya wadaawa ba/i ni ya SU2 watihitajika watete 8 uthibitisho wa hati ya umiliki au hati ya ununuzi wa kiwanja unaonyesha jina kla SU2 kwani nafasi ya ku/eta uthibitisho huo wa/ikuwa nayo ba/i waiitoa maeiezo yao ya mdomo biia uthibitisho wowote, wakati wadaawa waiianza kukaa katika nyumba hiyo takribani miaka 12 biia matatizo yoyote wa/a walikuwa hawaiipi kodi" I have considered the decision and reasoning of the trial court which was affirmed by the first appellate court, I agree with them, when decided that the said house is a matrimonial property having regard that, the respondent did prove to the balance of probabilities than the said uncle who had an ample time as a witness to prove that the house belong to him but he did not. However, to put the record clear the house proved to belong to parties at the trial is situated at Kitunda, these is by virtue of evidence tendered and not Chanika as said in the judgment and order of the trial court. As it appears the district court observed this and rectified it when stated at page 7 of the typed Judgment and I quote; " Hivyo basi amri ya Mahakama ya Mwanzo juu ya mgao wa nyumba ya Kitunda inatenguiiwa na badaia yake amri ya mgao sawa kwa sawa, yaani asilimia hamsini kwa kila upande inawekwa. " This being the first appellate court was right to locate where the matrimonial dispute is after scrutiny on evidence tendered. I wish to fortify my view by saying, it is trite law that a first appellate Court 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). It is therefore my considered opinion that the said house was proved to be matrimonial house, thus the first question is answered in affirmative. Now, to the second question whether the same was rightly equally distributed by the first appellate court. In the case of Gabriel Nimrod Kurwijiia v. Theresia Hassan Malongo Civil Appeal No. 102 of 2018(CAT). The Court of Appeal held inter- alia that: "The issue o f extent contribution made by each part does not necessariiy mean monetary contribution, it 10 can either be property or work or even advise towards the acquiring o f the matrimonialproperties. The Court went on stating that: It is dear therefore that the extent of contribution by a party in the matrimonial proceedings is a question o f evidence. Once there is no evidence adduced to that effect, the appellant cannot blame the High CourtJudge for not considering the same in its decision. In our view, the issue o f equality o f division is envisaged under section 114 (2) o f the LMA cannot arise also where there is no evidence to prove extent o f contribution”. Having these principles in mind, in lieu of this matter, the District court divided the said house equally while the trial court divided between the appellant and respondent at 70% and 30% respectively. I have considered the reasoning of the learned District Court Magistrate to reach the said division, and having looked the evidence on record, I am persuaded to believe that the district court magistrate was right to award division be equally in respect to the house of Kitunda. The district Magistrate considered very keenly at page 6 of the Judgment that the respondent despite of being a house wife caring for children, she participated in building the said house li by money she obtains by selling fishes and cooking for persons built the said house. Also discussed her contribution on moral support geared to peace of mind and advices which caused family stability hence family development. In view thereof I am satisfied that the first appellate court performed his legal duty. (See Future Century Ltd v. TANESCO (supra)) Given the above findings I find that the first and second grounds devoid of merits and I accordingly dismiss them. In respect to the third ground, the appellant is contesting that, the trial Court erred in law and in fact for continuing to order the payment of Tshs. 80,000/= as maintenance to the Respondent while the Appellant is living with their children. Before I dwell in in this ground, I wish to highlight some principles of granting custody and order of maintenance. The law puts it mandatory under section 125 of the Law of Marriage Act Cap 29 R.E.2019 (LMA) factors to be considered before awarding custody to children. Nonetheless, the Law of the Child Act Cap 13 R.E.2019 provides for such mandatory requirement in determining all issues involving children under section 4(2) of the Law of the Child Act, [Cap 13 R.E 2019]. The section reads; - 12 "4. (2) The best interests o f a child shall be a primary consideration in all actions concerning children whether undertaken by public or private social welfare institutions, courts or administrative bodies." From these requirements of law, courts also have construed the above provision and I wish to refer when this court in considering court's duty on determination of the best interest of the child, this was in the case of Neema Kulwa Mvanga Versus Samson Rubele Maira, Civil Appeal No. 1 of 2018, where it was observed that; "Having this in mind courts should proceed to focus on the best interest o f the Child and determine the suitable parent to give the custody. In doing this court has to investigate the circumstances around the case so as to establish whether the child has suffered or is likely to suffer any harm if custody is given to mother or father. Court may also consider the age, gender, religious background o f the child, parent-child relationship bond, parenting ability, each parent mental, physical and emotional child's health etc. " 13 In view of the above principle, the question is whether the Trial Court did consider the best interest of the child in the course of determining his custody. According to the record it seems the inquiry in respect to custody was heard after the trial, this is because, before the trial Magistrate proceeded to write Judgment wisdom directed him to hear children wishes. For purpose of clarity, I reproduce what transpired at page 15 of typed proceeding of the trial court; "Mahakama: shauri Hnakuja kwa ajiii ya kuwahoji Watoto juu ya mapendekezo kuwa wawe chini ya uangalizi wa nani endapo talaka itatolewa nao wanasema. 1. Ramadhani Hussein Miaka 13: Ninapenda niishi na mama 2. Shabani Hussein Miaka 10: Ninapenda niishi na mama Saini: Hakimu 18/10/2021 Amri: Shauri hadi21/10/2021 saa saba mchana Saini: Hakimu 18/10/2021" 14 On the date ordered above, the case came for judgment and the court ordered custody to all children to the respondent, the trial court reasoned that since they have chosen to stay with their mother, the said court has regard to their welfare and granted custody to their mother. With respect I think the trial court misguided on the requirement of the law. In essence the court relied on only one factor to be considered which is the wishes of the child, section 125 of LMA must be read and dealt as a whole, not only on wishes of the children, all factors must be considered, that is when it is regarded that the welfare of the children has been dealt with. However, taking regard of the age of the children, it is my view also section 136(1) of the Law of Marriage Act, [Cap. 29 R.E 2019] could have been invoked by the trial court, by engaging the social welfare officer, who after making inquiry of all the circumstances surrounding the children could have opine to court for the court to decide on whose custody should the children be placed to. A social investigation report may assist the Court to establish a number of issues that are important in ascertaining best interest of the child in a particular case. 15 Having observed above to that extent, I am of considered opinion, the evidence on record about the inquiry made by the court to the children, does not contain any information that would have assisted the Court in determining the best interest of the child within the law. I therefore quash the inquiry and proceeding of Primary court on inquiry dated 18/10/2021. Having said so, I proceed to set aside the order of maintenance awarded at Tshs 80,000/= to the appellant, I order to be assessed later after the issue of custody is settled. Therefore, this ground is found with merit and allowed to that extent. In conclusion thereof, the appeal is partly allowed, as being said it is hereby ordered as follows: 1. The decision of District Court in respect to division of matrimonial house of Kitunda is hereby affirmed. 2. With regard to custody of mentioned children, I order return of the case file to the trial court for compliance with section 125(2)(b) and 136(1) of the Law of Marriage Act, [Cap. 29 R.E 2019] before deciding on the custody of the child. I further direct that depending on the outcome of the inquiry the child's rights such as maintenance, education, shelter, health and his wellbeing in general should be considered. 3. The rest of the orders of the trial court remains undisturbed. 16 4. Having regard to the nature of the case that it involves family matters. Each party shall bear his/her own costs in this appeal. It is so ordered. DATED at DAR ES SALAAM this 7th day of October, 2022. o/? 7/10/2022 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 7/10/2022 17