lucas chahoza annarehema swai 2023 tzhc 20081 11 august 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA DISTRICT REGISTRY AT DODMA PC CIVIL APPEAL NO. 19 OF 2022 (From the District Court of Dodoma in Matrimonial Appeal No 20 of 2021: Original Matrimonial Cause No. 45 of 2021- Chamwino Ikulu Primary Court) LUCAS CHAHONZA.......................................................... APPELLANT VERSUS ANNAREHEMA SWAI................................................... RESPONDENT JUDGMENT Last Order: 01st August, 2023 Judgment: 11th August, 2023 MASABO, J.:- The appellant in this second appeal is disgruntled by the decision of the District Court of Dodoma in Matrimonial Appeal No. 20 of 2021 which allowed the respondent's appeal from the decision of Chamwino Ikulu Primary Court in Matrimonial Cause No. 45 of 2021. The nucleus of this appeal is a matrimonial dispute between the parties, a couple married in 2016 in accordance with Christian rites. During the subsistence of their marriage, they were blessed with one issue who has now turned six years (when the matter was before the trial court the child was only four years). Page 1 of 10 The respondent moved the trial court praying for divorce. In support of his prayer, he told the court that there has been misunderstandings between him and the respondent and between the respondent and his parents, notably his mother. He explained that the respondent was not taking good care of him and his relatives and was disrespecting his mother whom she suspected and accused of bewitching her child. Convinced that the marriage was broken down irreparably, the trial court dissolved the marriage and ordered division of matrimonial assets. The ancillary orders for distribution of matrimonial assets enraged the respondent. She appealed to the District Court of Dodoma, the first appellate court, which in turn reversed the division of matrimonial properties, placed the issue under the custody of the respondent and ordered the appellant to pay maintenance fee to the tune of Tshs. 80,000/= per month and to pay the necessary fees for child's education. Aggrieved by these orders the appellant has filed this appeal on the following grounds: - 1. That, the Honourable Magistrate in 1st Appellate court erred in law and facts by disturbing the distribution of matrimonial properties which was well done by the primary court and without taking correct analysis of the evidence tendered at primary court. 2. That, the Honourable Magistrate in first appellate court erred in law and fact by giving the high assessment of the maintenance of the child without taking consideration that the appellant has no permanent means of earnings as he is a mere peasant. Page 2 of 10 Hearing of appeal proceeded by way of written submissions. Submissions by the appellant were drawn and filed by Mr. Fred Peter Kalonga, learned counsel whilst those of the respondent were drawn and filed by Mr. Lucas Komba, learned counsel. In support of the first ground of the appeal Mr. Kalonga submitted that, the first appellate court erred in disturbing the trial court's, order for distribution of matrimonial assets. He argued that the evidence on record shows that the couple had two undeveloped plots received as wedding gifts from their parents and another one on which has a mud house. Therefore, the trial court correctly distributed the plots as it gave each of them one of the plots gifted to them during their wedding. The first appellate court erroneously overturned the distribution, while it was not certain as to which plain plot was not reflected in trial court's finding to be taken by the respondent. On the second ground of appeal Mr. Kalonga argued that, the ground maintenance order is alien to the appeal as it was not raised or determined by the first appellate court. He argued that, it is trite law that the 2nd appellate court cannot consider or deal with an issue not raised at the lower courts. On this he cited the case of Farida and Another vs. Domina Kagaruki, Civil Appeal No. 136 of 2006, CAT (unreported). He argued further that, this issue ought to have been claimed, substantiated and assessed at trial stage and not at appellate stage. Page 3 of 10 With regard to the merit of this ground he argued that, the maintenance order offended section 44 and 45 of the Law of the Child Act and rule 85 of the Law of the Child (Juvenile Court Proceedings) Rules which require the court while determining maintenance prayers to have due consideration of the economic capacity of both parents and the social inquiry report. Replying to the submission in respect of the first ground of appeal, Mr. Kornba argued that the trial court proceedings shows that the parties had two plots one located at Kambarage within Chamwino District whilst the other is located at Mshikamano also within Chamwino District. During subsistence of their marriage, they managed to build a house in the plot located at Kambarage while the plot at Mshikamano remained vacant and that this fact was not disputed by the appellant. He did not cross examine the respondent when she testified in relation to those two plots and this left her testimony on the plots uncontested. He argued further that the respondent prayed to be given the house and the court correctly gave it to her as she has custody of the issue of marriage who apart from being young has a mental illness. On the second ground of appeal, Mr. Kornba submitted that omission to frame issues is not fatal. He cited the case of Norman vs. Oversees Motor Transport (Tanganyika) Limited (1956) E.A 131 and argued that, the omission to frame the issue on maintenance did not occasion injustice to the parties, hence curable. On the issue of custody of the child, he argued that the court considered the best interest of the child, her age and her mental Page 4 of 10 illness. Regarding the issue of maintenance, he argued that the law imposes absolute duty to the father to maintain the <child whether or not the child is in his custody. He supported his submission with section 129 of the Law of Marriage Act, Cap 29 R.E 2019. Based on this he submitted that, the first appellate court was justified to order the appellant to provide maintenance at the tune of Tshs. 80,000/= per month. In rejoinder, Mr. Kalonga reiterated his submission in chief. I have considered the grounds of appeal, the records and submissions of both parties. Starting with the first ground of appeal the issue for determination is whether the division of matrimonial assets made by the primary court was fair and just. The law regulating division of matrimonial assets subsequent to the decree of divorce or separation, is fairly settled. The assets liable for distribution are those acquired by the spouses during the subsistence of marriage and assets acquired by one spouse prior marriage but substantially improved during the subsistence of marriage are acquiescent to distribution. This is in line with Section 114 of the Law of Marriage Act, Cap 29 RE 2019 which reads that: - 114 (1) The Court shall have power when granting or subsequent to the grant of a decree of separation or divorce to the division between the parties of matrimonial assets acquired 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 sub section (1), the Court shall have regard to- Page 5 of 10 a) The customs of the community to which the parties belong; b) The extent of the contribution made by each party in money, property or work towards the acquisition of the assets; c) Any debts owing by either party which were contracted for their joint beneifit; d) The needs of infant children, if any, of the marriage and subject to those considerations, shall incline towards equality of division. A court called to determine distribution of assets between a divorced couple, is therefore required by law to consider whether, the asset in question is actually a matrimonial asset, the contribution made by each of the parties in the acquisition of such asset, the debits of the family, if any and the needs of the infant children if any. As held by the Court of Appeal in Yesse Mrisho vs. Sania Abdul, Civil Appeal No. 147 of 2016, [2019] TZCA 414 (TANZLII): ".... proof of marriage is not the only factor for .consideration in determining contribution to acquisition of matrimonial assets as propounded by the second appellate court.. There is no doubt that, a court when determining such contribution must also J scrutinize the contribution or efforts of each party to the marriage in acquisition of matrimonial assets." As there appear to be a misunderstanding on the actual assets available, I find it to be of utmost relevant at this point to ascertain the assets as they appear in the trial tribunal's record. In this adventure, I have observed that testifying as PW1, the appellant who was the petitioner in the trial court told Page 6 of 10 the court that, the assets acquired jointly by the couple comprise of one mud house situated at Kambarage Chamwino, 20 iron sheets and 17 bags of maize. The respondent did not cross examine him on this fact which presupposes that she found the fact correct. Asked for clarification by a court assessor, the appellant stated that the house is constructed at plot which they acquired from their parents. On her part, the respondent described the matrimonial assets to comprise of a one house, two plots, 600 blocks, household utensils, a bicycle, 17 bags of maize, 5 iron sheets, one lorry of sand. Cross examined by the appellant; she maintained that the two were acquired on their wedding day being gifts from parents of both sides. Based on this evidence, the trial gave the appellant the mud house, ' I I - distributed the iron sheet in ration of 10 for the appellant, 15 for the respondent, equal share of the bricks, 9 bags of maize to the appellant and 8 to the respondent and each of the couple was given one of the two plots. Slightly reversing this order, the first appellate court gave the respondent the undeveloped plot, all the bricks and 5 iron sheets while it gave the appellant the mud house. The appellant wants the restoration of the trial court's order which had distributed the two undeveloped plots equally. Much as the respondent is discontented and her counsel has passionately argued that the house is situated in one of the two plots acquired as gifts at their wedding, the submission seems to contradict her testimony as during her testimony, she mentioned the house separately from the two plots which she stated, they were passed to them as gifts. In view of this, I find merit in the appellant's submission and find it fair that the two plots be distributed Page 7 of 10 equally to the couple. The order of the trial court that the respondent retain the plot given to them as gift by her parents and the appellant maintain the one received from his parents, is reinstated. The reminder of the appellate court's orders for distribution of the assets shall remain intact. For clarity, each of the parties shall retain the plot given as a gift by her/respective parents; the appellant shall retain the mud house; the respondent shall retain all the bricks and the 5 iron sheets. As for the orders for custody and maintenance, just as the order for distribution of matrimonial assets, orders for custody and maintenance of issues are ancillary to the decree of divorce and separation. A court dissolving a marriage of a couple with children below 18 years, would invariably address itself and make ancillary orders for custody and maintenance of such issue and in so doing, minimize the adverse effect of the separation or divorce on the welfare of such children and their best interest. In the present case, there is no dispute that the couple were blessed with one child who aged below 7 years during the dissolution of marriage. Thus, it was incumbent that issues related to the custody and maintenance of this child be addressed and resolved at the trial stage. Surprisingly, they were neither pleaded or address in the course of testimony and in consequences, no court orders were made in respect of these two issues. They emerged for the first time before the appellate court and after hearing both parties, the court found it proper to place the child under the custody of the respondent while it ordered the payment of maintenance fee which has disgruntled him. Page 8 of10 The appellant's counsel has fervently argued that the first appellate court erred in entertaining these two issues as they were not canvased at the trial court and in fortification, he has cited the case of Farida & Another v. Domian Kagaruki, Civil Appeal No. 136 of 2006, CAT unreported. Indeed, this is the law as it currently stands. Moreso, in this case where the law requires the court determining the custody of the child to have due consideration of the suitability of the parent in whose custody the child should be placed and the welfare and best interest of the child which, as per the law should be the paramount consideration (see section 125 of the Law of Marriage Act) and in respect of custody to have due consideration of such factors as the duty of a man to maintain his children (section 129 of the Law of Marriage Act), the responsibility of both parents to maintain their child, the income and wealth of both parents, the financial responsibility of the parents, and the costs of living among others (see sections 8 and 44 of the section 8(3) of Law of the Child Act Cap 13 RE 2019). Ascertainment of these factors requires evidence in the absence of which, the orders might appear as if they were plucked from their air. In the foregoing, I am of the settled view that the appellate court misdirected itself by entertaining the prayer for custody and maintenance. The second ground of appeal is found with merit. Accordingly, the appeal partially succeeds to the following extent: Page 9 of 10 1. The appellate court's order in respect of distribution of matrimonial assets is partially reversed to the effect that, the order of the trial court that the respondent retain the plot received by couple as a wedding gift from her parents and the appellant retain the one received as wedding gift from his parents is reinstated. The reminder of the appellate court's orders for distribution of the assets shall remain intact. For further clarity, the appellant shall retain the mud house and the respondent shall have all the bricks and the 5 iron sheets. 2. The orders for custody and maintenance of the issue are quashed and set aside. The parties are at liberty to make fresh applications for custody and maintenance under the Law of Marriage Act or the Law of the Child Act. 3. The parties shall bear their respective costs. DATED and DELIVERED at Dodoma this 11th day of August 2023 J.L. MASABO JUDGE Page 10 of 10