mussa simoni kijazi vs habiba shabani 2011 tzhc 2092 30 september 2011

IN THE HIGH COURT OF TANZANIA AT TANGA PC. CIVIL APPEAL NO.6 OF 2010 (Originating from Matrimonial Cause No.12 of 2010 at Mbaramo Primary Court and Civil Appeal No.2 of at Muheza District Court) MUSSA SIMONI KIJAZI............. ...APPELLANT VERSUS HABIBA SHABANI.......... !!......;... RESPONDENT JUDGMENT Date of last order: 12/08/2011 Date of judgment: 30/09/2011 Teemba, J; The Respondent, Habiba Shabani successfully instituted a Matrimonial Cause No.12 of 2009 at Mbaramo Primary Court for divorce, division of Matrimonial properties and maintenance for their two children. The trial court granted the prayers and ordered that the two children Rajabu Mussa 7 years and Salma Mussa be placed under the custody of the Respondent; the appellant to pay the Respondent Tsh.40,000/= per month as a maintenance for the two children; and the Respondent be given two cows out of four as her share of Matrimonial properties. Dissatisfied, the appellant lodged the appeal at Muheza District court Challenging the orders of quantum of maintenance and the division of their cattle. The district Court at Muheza confirmed the trial court's decision and dismissed the appeal for lack of merit. Still dissatisfied, the appellant filed this appeal challenging the lower court's decision under the following grounds of appeal; that the Magistrate erred in law and fact to place the children in the custody of the Respondent; that, the order to pay Tshs.40,0000/= per month to the Respondent was made without considering the income of the appellant; and that, the division of cattle was made without considering the physical and mental inputs of the parties towards acquiring them. At the hearing of this appeal both parties appeared in person unrepresented. As to the first ground of appeal, the Appellant submitted that their children are now old enough to stay with him. He added that both of them are 11 and 9 years old respectively. He urged this court to place them under his custody. The appellant also resisted the payment of Tshs.40,000/= to the Respondent on account that he only earns Tshs.20,000/= per month and it is difficult for him to pay Tshs. 40,000/= per month. As to the distribution of the cattle, the appellant submitted that it was not fair for the Respondent to be given one* cow and a calf as the couple had only two cows and two calves. In reply, the Respondent insisted that the children remain in her custody as one of them is sick with mental disorder and he needs extra care and' the appellant can not take care of a child as he is very busy. The Respondent also insisted that the appellant is capable of paying Tshs.40,000/= per month as he earns 20 literes of milk per day and each litre is sold at Tsh.600/=. She added that the appellant is healthy and can do other reproductive activities to maintain his children. As to the distribution of cattle, the Respondent submitted that it was fairly divided as she left the matrimonial home with four cattle. In conclusion, she urged this court to consider the evidence on record. In rejoinder, the Appellant insisted that he can take care of the children as to date he still provides them with medical and school Uniforms requirements. He concluded by urging this court to place the children under his custody. Having considered the submissions of the parties and the evidence on record, it has settled in my mind that this appeal has no merit It is clearly indicated in record that the welfare of children were considered before placing them under the custody of their mother - Respondent. Although I agree with the appellant that the children may now be placed under his custody, the question of their age is not the only determinant factor. 2 The best welfare of the child remains the paramount issue for consideration. One of the children is said to suffer mental illness and he needs special attention. The trial court together with the first appellate courts considered their mother, the respondent, to be fit to look after the children. I do not see any good reason to differ with the two courts below. The appellant claimed that the respondent is not in a position, financially to maintain the children. I am settled that his argument supports the decisions of the lower courts that he pays for their monthly maintenance. The order that he should be paying shs.40,000/= per month is justifiable and reasonable. Therefore, as the social and - economic factor of the appellant were considered by the Trial Magistrate, such order of payment can not be faulted in this second appeal. Furthermore, the record clearly shows that when the Respondent left the matrimonial home, they had acquired five cattle and one of them was sold by the Appellant without the consent of the Respondent, his wife. The appellant contests that the respondent did not deserve one cow and one calf as a share of matrimonial property. It is a principle of law that contributions made by each party in acquiring the matrimonial assets should be taken into account when dividing the matrimonial assets. In this case, it is on record that the Respondent was the one who was feeding the animals in question. It is on record that the appellant was busy with other economic activities in another family. That being the position, I am of the considered opinion that the distribution of cattle was fair. Moreover, it was decided by the Court of Appeal of Tanzania in the case of Bi. Hawa Mohamed V. Ally Sefu (1983) TLR 32 that the contribution of spouses has to be taken into account when dividing the matrimonial assets. For better clarity, it is hereby reproduced in extensio. "Since the welfare of the family is an essentia! component of the economic activities of a family man or woman it is proper to consider contribution by spouse to the welfare of the family as contribution to the acquisition o f matrimonial or family assets" In their decision, the Court of Appeal, justices were considering the provisions of section 114 (2) (b) of the Law of Marriage Act, (Cap. 29 R.E. 2002}. From their decision, it is settled that the spouses may get even half share of the property depending on the extent of their contribution in acquiring the property. In view of the above position, I have no reason to disturb the orders made by courts below. This appeal has no merit. It is hereby dismissed. This being a matrimonial cause, I give no orders to costs. 30/09/2011 4