JANETH J

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CIVIL APPEAL NO. 4971 OF 2024 (Arising from the Judgment and decree of District Court of Dodoma in Matrimonial Cause No. 02 of 2023 dated 22/12/2023) JANETH JOHN SAM……...…………………….….……….…………………….APPELLANT Versus STANSLAUS VENANCE MREMA…..….…………….……………....………RESPONDENT JUDGEMENT Date of last order: 03rd September, 2024. Date of Judgment: 18th October, 2024. E.E. KAKOLAKI, J. In this appeal the appellant is dissatisfied with the decision of the District Court of Dodoma in Matrimonial Cause No. 02 of 2023 handed down on 22/12/2023, ordering for division of matrimonial properties jointly acquired with the respondent at the ratio of 50% each and unspecified orders for maintenance of issues of their relationship with the respondent after its findings that, their alleged marriage relationship that lasted for more than ten (10) years is rebuttable. She has expressed her grievances in five (5) grounds of appeal as stated hereunder: 1. That, the trial Court erred in law and facts by ordering the division of matrimonial properties without considering that some of it does not belong to the parties. 2. That, the trial Court erred in law and fact for failure to determine the proper contribution made by the parties in acquisition of matrimonial properties. 3. That, the trial Court erred in law and fact by failure to observe the law. 1 4. That the trial Court erred in law and fact for failure to show at what extent the respondent should maintain the three issues. 5. That the trial Court erred in law and fact for not explaining right to appeal in the judgment. Briefly the appellant and respondent who met for the first time in 2011 fell in love and started living together but did not contract a formal marriage recognized by the law. In the course of their relationship the two managed to acquire several assets by joint efforts as others were private properties. God also blessed them with three issues whom they had an opportunity to raise together before their relationship turned sour hence a petition by the appellant before the District Court of Dodoma in Matrimonial No. 02 of 2023 for orders that, one, presumption of their marriage was rebuttable, second, their relationship was irreparably broken down and an orders for its dissolution, third, custody of children to the appellant, fourth, division of jointly acquired properties, fifth, costs of the petition and any other reliefs as it pleases the Court. In his defence the respondent denied to have legally married to the appellant despite of siring him the said three issues. He also disclosed in his evidence that, some properties were acquired jointly and others were privately owned. Having considered both parties evidence the trial court found that, there was no marriage legally contracted by the parties qualifying to be dissolved instead held that the appellant (petitioner) would be eligible to apply for maintenance as provided under section 160(2) of the Law Marriage Act, 2 [Cap. 29 R.E 2019] (the LMA). The court was of the further findings that, save for the plot at Mlimwa C and the one acquired from Joel Lusinde privately owned by the respondent and the two gifted plots to the children by the appellant as her private properties located at Kambarage Street and Nyamhanga street Makutupora area, the rest of the properties were matrimonial assets jointly acquired hence to be shared on 50% basis upon being valued. It was also ordered that, each party should continue to live in matrimonial home he/she was living at the time of judgment and the respondent to provide maintenance and education needs to the three issues whose custody was placed to the appellant while the respondent allowed to access them. It is that order for division of the matrimonial assets jointly acquired and the uncertain order as to the extent of maintenance regarding the three children that aggrieved the appellant hence the present appeal on the above narrated grounds. When the appeal was called for hearing the appellant appeared represented by Ms. Luciana Nyondo, learned advocate while the respondent hiring services of Mr. Moses Masami, learned advocate and both parties were heard viva voce. I took time to internalize the rivalry submission made by the parties in support and against this appeal and seized an opportunity to revisit the evidence adduced by the parties before the trial court. In this judgment I am intending to consider each and every ground of appeal as argued by the parties since the 5th ground was dropped by the appellant. 3 In her address to the Court in support of the 1 st ground it was Ms. Nyondo’s contention that, the trial court erred to divide some of the properties not belonging to the parties. For instance, she argued, the house in which the appellant was ordered to continue living in does not exist since she is living in a rented house as there is also evidence on record to the effect that she prayed the court during the trial to move from matrimonial house and shift to rented house. She also mentioned the house in plot No. 30 at Mji Mpya in which the appellant contributed to its acquisition after selling her farm land at Moshi to be part of matrimonial assets jointly acquired by the parties and subject of division as it was not respondent’s private property. In his response to this ground Mr. Masami retorted that, the contention that the appellant is living in a rented house and that, she requested to leave the matrimonial house are new facts which never featured in the trial court. She however contended that, when the respondent was cross examined by the appellant told the court that, the appellant moved from the matrimonial house and went to live in the house located at Kambarage area that was gifted to the children as per exhibit D5. And that, she shifted therein on 26/08/2023 when the petition was still going. According to him that piece of evidence exhibited that, appellant is not living in a rented house as claimed. As regard to the alleged contribution by the appellant in acquisition of the property in Plot No. 30 located at Mji Mpya, Mr. Masami countered that the assertion was untrue as the plot was bought by the respondent in 2014 as exhibited in 4 exhibit D3 and is yet to be developed as confirmed by the appellant herself in her evidence in chief. Under normal circumstances the money raised in 2021 from appellant’s sold plot at Moshi through sale agreement exhibit P1, could not have contributed in purchase of the said plot as claimed by the appellant hence no proof on her contribution towards its acquisition, Mr. Masami insisted and so submitted. In rejoinder submission Ms. Nyondo reiterated her submission in chief while insisting that, the appellant is living in a rented house. On contribution in acquisition of plot No. 30 in exhibit D3 she said the appellant witnessed the sale agreement hence proof of her contribution. I have considered the fighting submission in respect of the 1 st ground of appeal. The settled law is that he who alleges has a burden of proof as per section 110 (1) and (2) of the Evidence act, Cap. 6 [R.E 2022]. It is equally elementary that in civil matters, the standard of proof is on a balance of probabilities which simply means that the Court will sustain such evidence which is more credible than the other. See also the cases of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 and Paulina Samson Ndawavya Vs. Theresia Thomasi Madaha, Civil Appeal No. 53 of 2017 (both CAT-unreported). In this case I note there no single evidence adduced by the appellant during trial of the case to the Court’s satisfaction as correctly submitted by Mr. Masami that, the appellant was living in a rented house. Apart from her contention which I agree with Mr. Masami to be a new fact for not being canvassed before the trial court, 5 the only available and unchallenged evidence is that of the respondent during his defence when cross examined by the appellant and responded that: ’’…the family house at Kambarage was built by our joint efforts. The house was built as from 2020 up to 2023. The house has two rooms and one interior toilet. The parents reconciled us more than twice. She moved in that house on 26/08/2023. I am ready to be accountable for what I say under oath. I am the one with great earning between me and the petitioner. …There is a house at Kambarage. I am ready to move to the house at Kambarage. From the above excerpt in the respondent’s evidence, it is to this court’s satisfaction that, when the impugned judgment was delivered the appellant was not living in a rented house as claimed by Ms. Nyondo, instead at Kambarage Makutupora in the house in which the respondent testified to have contributed in its construction though his extent of contribution remained unestablished. However, as per exhibit D5 (sale agreement) the said plot was bought by the appellant as her private property before she transferred it in March 2023 to her children through deed of gift (exhibit P6) when the petition was already filed. The fact that it was her private property was also confirmed by the respondent when cross – examined during his defence and said: ’’…The plots the petitioner bought had no signature of mine. The plot at Kambarage was bought from Tito Masinga at the price of Tshs. 1,300,000/=.’’ 6 Much as it is now proved that the said plot was appellant’s private owned property and given the fact that, the respondent failed to demonstrate the extent of his contribution toward its improvement, I find the trial court was not justified to divide it to her as part of matrimonial assets jointly acquired. Had the trial magistrate paid regard to this fact I am sure he would not have arrived to the decision he reached. As to the acquisition of the land in Plot No. 30 there is no dispute that, the same was bought by the respondent as per the sale agreement exhibit D3 and witnessed by the appellant and further that the same remained undeveloped. Witnessing purchase of the said property I hold does not necessarily prove appellant’s contribution towards its acquisition as there is also no proof that in the year 2014 when the same was purchased the two had acquired the status of husband and wife. Contribution by the appellant under the circumstances, I hold ought to have been proved by monetary contribution only. As regard to appellant’s monetary contribution the contention by Ms. Nyondo that, the money used was realized from the sale of her plot in Moshi in 2021 as exhibited in exhibit P1, I find is wanting in merit. I so view as there is no possibility that the said money obtained in 2021 could have contributed to the acquisition of the property bought in 2014. Again, such assertion contradicts her own version when claimed that, the money from the sold land of Moshi plus other loaned money from the Saccos was the one used to build the business park. In view of the above said save for the land in plot No. 30 (exhibit D3) which does not form part of the 7 matrimonial property for being respondent’s private property I partly find merit in this ground in that the trial court erred to divide the house at Kambarage Makutupora to the appellant which is her private property. Next for determination is the 2 nd ground where Ms. Nyondo submitted that, the trial court was in error for failure to determine properly the contribution made by the parties in acquisition of matrimonial properties. According to her, evidence was adduced on how the said properties were acquired after the appellant had established her source of income from the bar business and tendered the exhibits proving on how she contributed towards their acquisition. She told the Court that, at page 8 of the impugned decision it is shown on how the respondent was dealing with pigs keeping only but not the extent of his contribution. In her submission, section 114(1) of the Marriage Act empowers the court to divide properties to parties after consideration of the extent of contribution of each part on the said properties. In this matter she contented, the trial court divided the properties by 50% shares to each party without consideration of each party’s contribution towards their acquisition. She prayed the Court to find merit in this ground which she submitted further that the same also covers the third ground of appeal. Countering the submission by the appellant in respect of the 2 nd and 3rd grounds of appeal faulting the trial court for division of matrimonial assets without paying regard to parties’ contribution towards their acquisition Mr. Masami argued that, the properties were correctly divided to the parties as 8 there is cogent evidence that the same were in deed acquired out of joint efforts. He said, was so arguing as there is evidence from both parties to the effect that each of them had his/her own private properties and that is why the trial court decided to divide the business park by 50% to each party guided by the provision of section 114 of the LMA. He thus pressed the Court to find the two grounds are lacking in merit too and dismiss them. In rejoinder Ms. Nyondo resisted the submission by Mr. Masami on division of business park arguing that, there is no dispute that the appellant contributed much on it than the respondent after injecting the money realized from the sale of her land at Moshi and the loan secured from other sources, hence its division could not be equal as the respondent did not prove the extent of his contribution. I have dispassionately considered the fighting submission by the parties regarding division of jointly acquired properties by them allegedly without consideration of their contributions as submitted by the appellant in respect of the 2nd and 3rd grounds of appeal. The law governing division of matrimonial assets jointly acquired as submitted by Mr. Masami is section 114 of the LMA. I find it imperative to reproduce the said section 114 of LMA which provides that: 114.-(1) The court shall have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any assets acquired 9 by them during the marriage by their joint efforts or to order the sale of any such asset and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; (b) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) any debts owing by either party which were contracted for their joint benefit; and (d) the needs of the children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. From the above exposition of the law, it is evident to this Court that, in considering party’s efforts towards acquisition of matrimonial properties the extent of contribution of each party is the prime factor. The assets to be determined might include those owned by one party but improved by joint efforts. See the case of Bi. Hawa Mohamed Vs. and Ally Seif (1983) TLR 32 and Yesse Mrisho Vs. Sania Abdul, Civil Appeal No. 147 of 2016 (CAT). In the present matter viewing from both parties’ submission there is no dispute that the house at Veyula and Business Park in the plots which were purchased by the respondent as per sale agreements in exhibit D2 and D4 10 respectively, were jointly improved by the parties hence qualifying to be matrimonial assets and eligible for division. Parties part their ways when it comes to shares in which each party is entitled to as the appellant claim to have contributed more than the respondent hence entitled to more shares than him while the respondent holds a contrary view in that, there is cogent evidence in his contribution towards their acquisition. Having glanced at the said exhibits D2 and D4, the true fact is that the same were bought by the respondent from his own sources, the appellant being his witness. As to the extent of contribution in their improvements the appellant in her testimony before the trial court disclosed that, she used Tshs. 10,000,000/- obtained from the inherited plot at Moshi (exhibit P1) and the loaned money from SAYUNI community group as per loan forms in exhibit P5 collectively, to finance improvement or construction of the said house and business park. On the other hand, apart from buying the two plots at Tshs. 2,000,000/- each, the respondent told the court to have contributed Tshs. 48,000,000/ out of Tshs. 60,000,000/-, the total value of the business park as he was conducting business of keeping and selling pigs. Apart from the sale agreement which in aggregate is Tshs. 4,000,000/- the respondent presented no any other evidence to justify the alleged contribution of Tshs. 48,000,000/-. However, this court still believes that he contributed more than Tshs. 4,000,000/- in acquisition of the said house and business park as the only established evidence on the extent of appellant’s contribution is Tshs. 10,000,000/- only 11 earned out of the sold plot at Moshi as per exhibit P1 since the purported earnings through loaned money from the SAYUNI as per exhibit P5 collectively, I hold does not constitute part of the evidence. I so hold as the reasons for its admission reserved by the trial court were never assigned in its judgment as promised during admission hence leaving them illegally admitted. Thus, I cannot consider them in this judgment for being improperly admitted. The Court of Appeal faced with akin situation in Ismail Rashid Vs. Mariam Msali, Civil Appeal No. 75 of 2015 (Unreported) where the appellate court had relied on the evidence wrongly admitted to overturn the decision of the subordinate court had the following observation to make: “In the light of the aforesaid, it is clear to us that, the decision of the first appellate court which reversed the decision of the trial court and held in favour of the respondent was wholly influenced by the evidence not properly before the court ….’’ The above being the position of the law, in this case the remaining evidence in support of appellant’s extent of contribution towards acquisition of the two assets is Tshs. 10,000,000/- only, which I however find no direct evidence proving that the same was spent whole in erection of the said properties. In view of the above analysis of evidence I am in disagreement with Ms. Nyondo’s proposition that the appellant contributed more than the respondent towards acquisition of the two properties. With the above evidence, this court having weighed the evidence from both sides on the extent of contribution towards acquisition of the matrimonial house at Veyula and the business park 12 is convinced and therefore arrive at the findings that, the weighing scale balances in between both parties in that their contribution towards acquisition of the two properties was equal. As to who is entitled to what, since I have already found that, the house at Kambarage Makutupora was wrongly divided to the appellant for being privately owned property, I vary the trial court’s decision on division of the matrimonial house of Veyula to respondent only and in lieu thereof make an order that, the same is divided to both parties at equal shares of 50% upon its value being established or else either party may pay off the other party the value of his/her shares. As regard to the business park the trial court’s order remains undisturbed. In view of the above decision, I partly find merit in these two grounds of appeal. Lastly is the 4th ground where Ms. Nyondo faulted the trial court for not explaining the extent to which the respondent shall be contributing as maintenance for the three issues of their relationship whose custody was placed in appellant’s hand as a mere order that, the respondent should maintain them and cover their education expenses without specifying the amount renders it hard to execute. She contending was so arguing as the respondent was irresponsible in covering costs of children’s education and health care. She therefore prayed this Court to find merit in this ground and proceed to allow the appeal. In response Mr. Masami challenged Ms. Nyondo’s submission arguing that, section 129(1) of the LMA is categorical on what should be considered before 13 issuance of maintenance order in favour of the issues regard being to father’s income. According to him the law does not specifically dictate that, maintenance should be in monetary terms as can also be in terms of provision of shelter, food, medical care, education and the like. In this case he said, there is no evidence worth proving that the respondent failed to discharge his duty of providing maintenance to his children hence a submission that, the trial court was not bound to issue maintenance order in monetary terms only. In his view, an order for maintenance of children in monetary terms could only be issued under the circumstances provided under section 130 of the LMA. Since this Court does not receive evidence and cannot for that matter be in position to establish whether the respondent has failed to execute court’s order, Mr. Masami prayed this Court to dismiss this appeal without costs. In rejoinder Ms. Nyondo elucidated that, appellant’s concern was in respect of the extent of maintenance to be offered by the respondent to the issues of their relationship and not monetary value as submitted by the respondent. She therefore prayed the Court to allow this appeal by setting aside trial court’s judgment. I have carefully followed the contending submission by the parties regarding the extent of maintenance in which the respondent was supposed to be ordered to provide to the three issues sired by him to appellant. The law under section 129 of the LMA places a mandatory duty to a man to maintain his children, whether they are in his custody or the custody of any other person, 14 either by providing them with accommodation, clothing, food and education as may be reasonable, the regard being paid to his means and his station of life as he may do so by paying the costs thereof too. The man with such duty will only be ordered by the Court to provide maintenance to his children under the circumstances provided in section 130(a) to (d) of the LMA. To appreciate the discussion under this ground I find it imperative to reproduce the said provision of section 130(a) to (d) of the LMA reading thus: 130.-(1) The court may, at any time, order a man to pay maintenance for the benefit of his child- (a) if he has refused or neglected to adequately provide for him or her; (b) if he has deserted his wife and the child is in her charge; (c) during the pendency of any matrimonial proceedings; or (d) when making or subsequent to the making of an order placing the child in the custody of any other person. In this matter having revisited the evidence adduced by the appellant on 24/10/2023, this Court is satisfied that, the issue of respondent’s refusal to provide for his children as provided in section 130(a) of the LMA surfaced in her evidence and the same was never challenged by the respondent during cross-examination. Under the unchallenged and prevailing circumstances I hold it was not enough for the trial court to merely order the respondent to provide for maintenance of the three issues without specifying the extent to which such maintenance could be provided. As alluded to above man’s duty to provide for his children depends on his means and the station of life. The 15 law under section 44 of the Law of the Child Act, [Cap. 13 R.E 2019] provides for aspects to be considered by the Court before an order of maintenance is issued. Section 44 of the Law of the Child Act, reads: 44. A court shall consider the following matters when making a maintenance order- (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child; (b) any impairment of the earning capacity of the person with a duty to maintain the child; (c) the financial responsibility of the person with respect to the maintenance of other children; (d) the cost of living in the area where the child is resident; and (e) (e) the rights of the child under this Act. From the above exposition of the law the mandatory terms are that, for the Court to consider issuing maintenance order to the father or any person legally bound to maintain the child the following factors must be taken into consideration. One, income and wealth of both parents to the child or the person legally responsible to maintain the child, second, earning incapacity of the said person if any, third, financial responsibility of the said person in respect of maintenance of other children and fourth, cost of living in the area of residence of the child and fifth, any other rights of the child. In this matter glancing at the adduced evidence by both parties there is no sufficient materials to enable this Court gauge and/or access both parties’ income and other factors to be considered before coming up with a maintenance order 16 that will befit the respondent by specifying coverage of maintenance, after considering his means in all aspects of life. I so view as under section 130(2) of the LMA, the court upon assessment and being satisfied that, the woman is financially stable than the man to provide for the children can order her to solely maintain children or contribute towards their maintenance costs. As the Court has to consider all above mentioned factors before issuance of maintenance order to the man and since this court cannot receive evidence from the parties at this stage, the remedy is to remit back the case file back to the trial court for the same to receive evidence from the parties supporting the factors to be considered under section 44 of the LMA and proceed to issue proper orders for maintenance of the three children. I therefore find merit in this ground and uphold it. All said and done this appeal is party allowed to the extent that, the trial court’s order dividing the house located at Kambarage Makutupora in which the appellant and her children are accommodated is varied for being a private property. Equally the order dividing the matrimonial house located at Veyula to the respondent alone is varied and substituted with an order for its division to both appellant and respondent at 50% shares with an option for one party to buy off the other party upon its value being established. The maintenance order is set aside as the case file is remitted to the trial Court for issue of proper maintenance order after hearing both parties’ evidence on that aspect. Otherwise, the rest of the decision of the trial court remains undisturbed. 17 Depending on the nature of the matter, each party is ordered to bear own costs. I order each party to bear own costs. Order accordingly. Dated at Dodoma this 18th of October, 2024. E. E. KAKOLAKI JUGDE 18/10/2024. Court: The Judgment has been delivered at Dodoma today on 18 th day of October, 2024, in the presence of Ms. Luciana Nyondo, Advocate for the appellant, the appellant in person, Mr. Moses Masami, Advocate for the Respondent, the respondent in person and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 18/10/2024. 18