Judgment Civil Appeal No 32902 of 2024 BWIRE

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM. CIVIL APPEAL NO 32902 OF 2024 (Arising from judgment and decree Matrimonial cause No.17296/2024 of District Court of Kibaha at Kibaha which was delivered by Honorable F.E NG’HWELO, RM on 2nd December 2024) KELVIN BENARD BWIRE. .................................... . APPELLANT VERSUS SALMA RAMADHANI MSENGI ............................. RESPONDENT JUDGMENT MKWIZU, J On January 6, 2016, the parties entered a civil marriage, during which they were blessed with one child, Jeremiah Kelvin Bwire, born on September 30, 2016. The parties enjoyed a period of marital harmony just a few months after their 2016 union. It is in the petition that in 2016, just five months after their marriage, the respondent left the matrimonial home and returned later; however, in 2018, the respondent vacated the matrimonial home but returned later that same year, leading to a 1 temporary reconciliation. In 2019, the respondent again left the matrimonial home and did not return, despite the petitioner’s multiple efforts to persuade her to resume cohabitation. It was not until 2021 that the respondent re-entered the matrimonial residence through a forcible break-in. This act further strained the relationship, resulting in an irreconcilable difference between the parties. In light of these circumstances, the petitioner filed a petition for divorce in the District Court of Kibaha, seeking relief that included the dissolution of the marriage, custody of the child and costs of the suit. In her response to the petition for divorce, the respondent acknowledged the dissolution of the marriage but contested the petitioner’s request for custody of the child. Instead, she sought an order for custody of the child and maintenance of TZS 200,000 per month, as well as an equal division of the matrimonial property, specifically the house located on Mwambisi Street in the Kongowe area. After the trial, the trial court determined that the parties' marriage had irretrievably broken down; accordingly, it issued a decree of divorce while simultaneously granting custody of one child to the respondent along with a stipulation that the Appellant shall remit maintenance for TZS 100,000 2 per month. It allotted 10% of the matrimonial properties to the respondent and 90% to the Appellant. The appellant feels aggrieved. He has instituted this appeal, asserting a total of three grounds as follows: - 1. That the trial court erred in law and fact by holding the respondent should get 10% of the share in the property, while there is no evidence for her contribution towards the acquisition and/or improvement of the appellant’s property contrary to the finding, judgment at page 5 in 1st paragraph and evidence of the appellant which shows that the appellant contributed 100% for the acquisition and improvement of the property. 2. That the trial court erred in law and fact foe awarding the custody of the child to the respondent without heeding in mind the best interest of the child in terms of education, shelter, peace and clothes. 3. That the honourable magistrate erred in law and fact by holding the appellant should provide maintenance of Tshs 100,000/= per month without considering that the appellant’s income cannot afford such a high amount. The appeal was resolved through written submissions. 3 In the first ground, the appellants contested the trial court’s award of 10% to the Respondent as her share in the matrimonial property, on two main grounds; lack of evidence supporting her contribution to the acquisition and/or improvement of the property, which contradicts the court's findings on page 5, paragraph 1 of the impugned judgment, acknowledging that the petitioner had contributed 100% of the funds used to construct the house. And improper classification of the house as matrimonial property. To him, for a property to be considered matrimonial property, it must have been acquired during the subsistence of the marriage and/or a spouse must have contributed to its development or improvement, even if it was acquired before the marriage. The property at issue, he insisted, was acquired and constructed by the appellant before the marriage, and thus, the Respondent's status as the legal wife does not entitle her to a share in the property. He distinguished the case of Bi Hawa Mohamed v. Ally Seif, [1983] TLR 32, by the years spent by the spouses, stating that in the present case, the spouses spent only two years, from 2016 to 2018, when the respondent left home; the property was acquired and the appellant constructed house before the celebration of marriage, unlike the case of Bi Hawa Mohamed v. Ally Seif,( supra) where the properties were acquired during the subsistence of the parties marriage and parties had lived long before they parted. He was of the 4 view that the title of being a wife does not grant a wife the right to share in her husband’s property during the division of matrimonial assets if she has not contributed adding that the appellant established a salon for the respondent, which adequately met the future needs of the appellant, and therefore she is not entitled to claim an additional share in the house situated in the Mwambisi Kongowe area - Kibaha District.. He relied on Tumaini M. Simoga Versus Leonia Tumaini Balenga, Civil Appeal No. 117 of 2022( Unreported), insisting that he is entitled to all 100% shares of the said house. In the second ground of appeal, the appellant criticised the trial court for awarding custody of the child to the respondent without adequately considering the child's best interests, particularly in terms of education, shelter, peace, and clothing. He argued that granting custody to the respondent would have an adverse effect on the child's educational development and overall well-being. The appellant asserted that the respondent's lifestyle is questionable and that she lacks good moral character. The appellant also stated that the evidence presented during the hearing indicated that the respondent resides in an unsafe environment, which poses significant risks to the child’s development and well-being. 5 He believes that the respondent influenced the child’s views, as the child was living with the respondent, which contradicts the provisions of section 125(1) and (2) of the Law of Marriage Act and section 39(2)(d) of the Law of the Child Act, [Cap 13 R. E 2019], stating that, in making a custody order, they were not independently obtained. He cited for court's consideration the case of Glory Thobias Salema v Allan Philemon Mbaga, (Civil Appeal No. 46 of 2019) [2020] 7ZHC 3794; (13 November, 2020) emphasising that the child's opinion, although significant, should not be viewed in isolation, especially since the child had just come from the respondent at the time of expressing this desire. He also said that the appellant's claim of insufficient support was unproven, as the evidence indicated that he was meeting his obligations through his mother. The appellant claimed that as the biological father, he was entitled to custody under section 39(2)(c) of the Law of the Child Act, [Cap 13 R.E 2019] as the evidence does not show any abuse by him, and he is capable of caring for the child. He argued that it is now the right time for him to obtain custody, rather than the mother, who had custody after their separation. The third ground is a complaint over the amount of Tshs. 100,000/= per month granted as maintenance costs, which he says was given 6 without making findings on the Appellant’s income, contrary to sections 44 and 45 of the Law of the Child Act, read together with section 129 of the Law of Marriage Act. He was of the view that the trial Magistrate was required first to inquire about the income and wealth of both parents of the child through the social welfare officer. The social welfare officer's report would enable her to offer a just and fair order of maintenance. He relied on Denis Eiias Nduhiye v. Lemina Wilbad, Juvenile Civil Appeal No. 6 of 2019 (U reported). He lastly urged the court to allow the appeal with costs. In response to the first ground of appeal, the respondent contended that the trial court acted properly in determining that she is entitled to an equal share of the jointly acquired matrimonial property, including a house located on Mwambisi Street in Kibaha district. She cited the case of Bi. Hawa Mohamed vs. Ally Seif (1983) TLR 32 in support of her argument. She maintained that the three plots and the matrimonial house were acquired and built during their cohabitation, which began on July 12, 2012, and was formalised on January 6, 2016. Before they moved into the matrimonial house in 2018, they had lived together. However, the appellant deserted the home in 2021. She emphasised that their time together before marriage, amounting to three years and several months, 7 should not be excluded when calculating the duration of their marital relationship, as Section 160(1) of the Law of Marriage Act presumes two years of cohabitation to establish a marriage. While conceding that she did not keep evidence of her financial contributions, she argued that it is evident she maintained the matrimonial house during their time living together. She reiterated that both the three plots and the matrimonial house were acquired during their union, both presumed and formalised, and brought up the case of Tumaini M. Simoga vs. Leonia Tumaini Balenga, Civil Appeal No. 117 of 2022, which affirms that contributions to a marriage extend beyond financial input to include support and companionship. By these arguments, she urged the court to recognize her rights to the property based on both case laws and the nature of their relationship. In addressing the second ground of appeal, the respondent argued that the trial court correctly awarded her custody of the child, having considered the child's best interests. She stated that the court acted within the legal parameters and carefully considered the child's welfare in making its decision. The respondent agreed with the appellant's cited case, Glory Thobias 8 Salema vs. Allan Philemon Mbaga, Civil Appeal No. 46 of 2019 (2020) [ZHC 3794], in relation to the child custody and Section 4(2) of the Law of the Child Act, on the importance of the child's interests. She noted, however, that the trial magistrate took these interests into account, especially given the appellant's abandonment of the matrimonial home and his failure to provide for the child's needs since leaving in 2021. The respondent indicated that she is unaware of the appellant's current living situation, as he has not disclosed it, and they only meet in court for various legal matters. She argued that granting the appellant custody would not be in the child's best interests and could adversely impact the child's well-being and development. In response to the final ground of appeal, the respondent asserted that the trial court did not err in law by ordering the appellant to provide maintenance, insisting that he is capable of paying Tshs. 200,000 per month. She cited section 129(1) of the Law of Marriage Act Cap. 29, R.E. 2019, which establishes the appellant's responsibility to maintain his child, adding that despite the appellant's claims that the maintenance amount is excessive, he failed to substantiate his inability to pay with details of his income. The respondent, who is familiar with the appellant's financial circumstances, contended that he has sufficient income to meet the 9 maintenance obligations and requested that the court dismiss the appeal, order an equal division of the matrimonial home, uphold her custody of the children, and increase the maintenance amount from Tshs. 100,000 to Tshs. 200,000, as well as grant any other relief that the court considers appropriate and just. The appellant reiterated his main argument, adding that the issue of presumption was neither pleaded nor framed, and the parties did not address it in court. Consequently, the appellate court cannot consider matters not raised during the trial court. He cited the case of Hotel Travertine Limited & 2 others vs National Bank of Commerce Limited [2006] TLR 133. He invited the court to allow his appeal for a 100% share for the appellant and quash the 10% share given to the respondent. He requests that the child be placed with the appellant and that maintenance be reduced from TZS 100,000 to TZS 30,000. I have considered the evidence and the appellant's grounds. I propose to start with the third ground, which appears to challenge the validity of the maintenance order on the basis that it was issued without considering the appellant's economic status. According to Section 8 of the Child Act, maintenance is a shared responsibility between the child's parents, depending on their financial capabilities and other relevant factors. To 10 establish the appropriate maintenance costs to be paid by the parents or any one of them , section 44 of the same Act outlines specific factors that courts must consider, including: (a) The income and financial capacity of both parents; (b) Any impairment of the earning ability of the parent required to maintain the child; (c) The financial responsibility of the parent towards other dependents; (d) The cost of living in the area where the child resides; and (e) The overall rights of the child under the Act. This position was also discussed in Festina Kibutu vs. Mbaya Ngajima [1985] TLR 42, where the court held that maintenance orders must be reasonable and consider the financial capacity of both parents.See also Denis Eiias Nduhiye v. Lemina Wilbad( Supra) I have revisited the trial court's records, and no evidence was presented to indicate the parties' economic status in this case, which would have allowed the court to determine the appropriate amount for maintenance costs. Additionally, the trial court's order does not explain how the TZS 100,000 figure was reached at. The order was simply that:- “…the petitioner shall provide maintenance at the tune of One 11 Hundred Thousand Shillings (100,000/=) Only as maintenance per month. This duty shall come to an end when the child attains the age of majority.” This is contrary to the law and would not have served the purpose. As the first appellate court, it is expected to assume the role of the trial court by evaluating the presented evidence, analyzing the facts, and drawing appropriate conclusions based on that assessment. However, in this instance, the lack of evidence, whether voluntarily provided by the parties or solicited by the trial court, limits this court's ability to make an informed decision. This is so because the role of the appellate court is not to fill evidentiary gaps or to speculate on what might have been presented had the parties chosen to provide complete information as doing so would run contrary to the foundational principles that court's deliberations must rely on a clear and robust evidentiary foundation to ensure just and equitable outcomes. Given the circumstances in this case, I am compelled to allow this ground and declare the judgment rendered by the trial court and the resultant decree null and void for lacking any essential evidence. On the way forward, I believe the appropriate step is to invoke the revisional powers of this Court and quash the impugned judgment of the trial court, setting aside the resultant decree as I hereby do. The file is 12 remitted back to the trial court to hear the parties' evidence regarding their financial status and responsibilities in respect to the maintenance order in accordance with the law, including involving the social welfare officers in the process pursuant to section 45 of the Law of the child Act before composing a new judgment. And since this order necessitates the formulation of a new judgment, which is inherently appealable as a matter of right, I shall refrain from addressing the remaining grounds of appeal at this juncture. Considering the nature of the appeal, the dynamics between the parties involved, and their respective roles in contributing to the identified errors, I hereby direct that each party shall bear its own costs. It is so ordered. DATED at DAR ES SALAAM, this 28th MARCH 2025 E.Y. MKWIZU JUDGE 13