NALISIS ARCHARD NGEMELA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CIVIL APPEAL NO. 000005848 OF 2024 BETWEEN NALISIS ARCHARD NGEMELA.............................................................. APPLICANT VERSUS MARY HOSEA MAJESHI.................................................................... RESPONDENT JUDGMENT OF THE COURT 17/10/2024 & 25/11/2024 Kafanabo, J.: This is a judgment in respect of a second appeal that emanates from a decision of the District Court of Musoma (E.G. Rujwahuka, SRM) dated 22/11/2023 in Matrimonial Appeal No. 01 of 2023. The appeal in the District Court of Musoma also emanated from matrimonial cause No. 67 of 2022 of the Musoma Urban Primary Court (hereinafter the trial court). A brief background of the matter is that the parties herein were husband and wife who lived in tranquility since they contracted their civil marriage in 2019. It is also on record that the marriage of the parties herein was blessed with two issues of the marriage. However, when it reached 2020 the misunderstandings began in the parties' union. The peak of the wrangles was in April 2022 when the families of the parties were involved in an attempt to resolve the dispute between them, nonetheless, no amicable solution was reached by the parties. i It is also on record that the dispute was referred to the Marriage Conciliation Board of the Kamnyonge Ward, in Musoma Municipality. On 31st October 2022, the said conciliation board issued a certificate declaring failure to settle the dispute between the parties herein. It followed that on 21st November 2022, the Appellant herein instituted Matrimonial Cause No. 67 of 2022 in the Musoma Urban Primary Court. The matter was duly heard and on 23/12/2022 the decision of the trial court was pronounced granting divorce as requested under section 107(2)(d)(e) of the Law of Marriage Act, Cap. 29 R.E. 2019 (hereinafter referred to as the 'LMA'), because the court was of the view that the marriage had irreparably broken down. Correspondingly, given the age of the two issues of the marriage (Lightness aged two (02) years and eight (08) months, and Alyvin aged three (3) months), the Court granted the custody of the two issues of the marriage to the Respondent pursuant to section 125(3) of the LMA. The court also ordered the Appellant to pay TZS 100,000/= monthly to the Respondent for the maintenance of the said children. As regards the division of the matrimonial properties, the court did not order the division of matrimonial assets because there was no evidence of acquiring any. The Respondent was not amused by the decision of the trial court and thus appealed to the District Court of Musoma (hereinafter referred to as the '1st appellate Court'). On 22/11/2023 the 1st appellate Court partly allowed the appeal and quashed and set aside the orders of the trial court. The 1st appellate Court further ordered that the issues of the marriage be placed under the care of the Respondent, and the Appellant was ordered to pay TZS 250,000/= per month for the maintenance of the issues of the marriage. 2 The Appellant was also ordered to cover health care (including securing NHIF cards), education, and clothing to the issues of the marriage. The 1st appellate Court also ordered the division of the two plots, if any, located at Misungwi and Bukoba and the division of the household items. The 1st appellate Court also ordered the Appellant to pay for the transport costs of the Respondent, the two children, and their respective luggage from Musoma to Dodoma. The Appellant was aggrieved by the said orders of the District Court and preferred an appeal to this court on the following grounds: 1. The 1st appellate Court misapprehended the evidence on the record as such arrived at a wrong decision; 2. The 1st appellate Court erred in law for not observing principles governing appeals in Civil Cases. 3. The 1st appellate Magistrate erred in law to hold that the respondent (the Appellant herein) to pay costs for transport of the luggage of the appellant (respondent herein) and transport fare for the appellant and two children of the parties from Musoma to Dodoma. A. That the 1st appellate Magistrate erred in law to hold that, if any, there are two plots mentioned by the appellant (respondent herein) still is available, each party to get one plot. Before embarking on the determination of the grounds of appeal stipulated above, it is important to point out that, as per the record of this court, the Appellant made several efforts to locate the Respondent but his efforts proved futile as the Respondent seemed to avoid service. Then the Court ordered the Respondent to be served by the substituted service 3 through publication which the Appellant duly complied with. On the day set for the hearing, the Respondent did not enter appearance and thus the court ordered the hearing of the Appeal to proceed exparte under Order XXXIX Rule 17(2) of the Civil Procedure Code, Cap. 33 R.E.2019 read together with Rule 38 of the Law of Marriage (Matrimonial Proceedings) Rules. At the hearing of the appeal, Mr. Baraka Makowe, learned Advocate, entered an appearance for the Appellant. In support of the appeal, the learned Advocate submitted in support of each ground of appeal separately, the substance of the submissions in support of the appeal is provided herein below. In support of the first ground of appeal, it was submitted that the evidence in the trial court was misapprehended by the 1st appellate Court. The evidence adduced in the trial court was about hardship in the matrimonial home as narrated by both parties and was not controverted by either party. However, no evidence was adduced regarding the existence of matrimonial properties at the trial court. It was also submitted that the issue of division of matrimonial properties and repatriation of the Respondent from Musoma to Dodoma arose at the level of the 1st appellate Court, it did not feature in the trial court. Further, it was the Appellant's submission that the evidence adduced in the trial court was not considered by the 1st appellate Court in arriving at its decision. That is evidenced by the orders of the 1st appellate Court, for instance, the 3rd, 4th, 5th, and 6th orders of the judgment on appeal available on page 10. The Appellant's counsel submitted that if the 1st appellate Court had apprehended 4 well the evidence in the trial court it could not have made the decision it reached. Regarding the second ground of appeal, it was submitted that it is a cardinal principle of law that the first appellate court can reevaluate the evidence to come to its own decision. In our jurisdiction, the additional evidence can be taken where necessary under section 21(l)(a)(b) of the Magistrates Court Act, Cap. 11 R.E. 2019. The Respondent's counsel further submitted that the 1st appellate Court never followed the principles governing appeals because the judgment subject matter of the appeal was not banked on a rehearing, reevaluation, or a reassessment of evidence as adduced at the trial court, rather it is based on what the court found during a hearing of the appeal. It was further submitted that, when the appeal was being heard in the 1st appellate Court, submissions from the Appellant were made to the effect that the amount of maintenance be enhanced from TZS 100,000/= to TZS 250,000/=, also on page 8 of the proceedings of the 1st appellate Court there is a prayer for the division of the matrimonial assets which issue was not raised before the trial court. It was further submitted that the submissions by the Appellant in the 1st appellate Court were considered as evidence, in particular, the submission regarding the division of the matrimonial assets, which was wrong because submissions are meant to elaborate the grounds of appeal, they are not evidence as taken by the 1st appellate Court. The case of Rosemary Stella Chambejairo vs David Kitundu Jairo (Civil Reference 6 of 2018) [2021] TZCA 442 (2 September 2021) was cited to bolster the submissions. 5 The other complaint features on the 3rd ground of appeal regarding order number 6 given by the 1st appellate Court of repatriating the Respondent from Musoma to Dodoma, as per page 10 of the judgment of the first appellate Court. It was submitted that the issue never featured in the trial court, not in the evidence adduced in the trial court, and not even in the submissions in the 1st appellate Court, there was no request that the Respondent be transported to Dodoma at the Appellant's cost, nor the Respondent asked for the same. The Appellant's counsel argued that the 1st appellate Court's decision that the Appellant should pay for the transport of the Respondent from Musoma to Dodoma is unfounded, and was imported into the proceedings by the learned Magistrate of the 1st appellate Court. Therefore, the order was not born out of the records of the trial court. The submissions in support of the fourth ground of appeal refer to the order for the division of the two plots mentioned. It was submitted that the said order is ambiguous and falls short of an order of a court. The court's order should be specific and cannot be subject to any other event. However, the relevant order of the 1st appellate Court used words like, if any, or if they are still available. It was argued that the wording of the order of the 1st appellate Court shows uncertainty. The said fourth order was open and subject to dispute and litigation. The order was unspecific and thus imported into the proceedings. It was also argued that no plots were specifically mentioned to justify the order made by the 1st appellate court. Now, therefore, in light of the submissions above and the relevant laws, this court is called upon to determine the appeal. After considering the said submissions and the relevant grounds of appeal this court is of the view that 6 the 1st ground of appeal on misapprehension of the evidence by the 1st appellate Court, the 3rd ground of appeal on repatriation costs of the Respondent, and the 4th ground of appeal on the division of the plots will be determined together because, all of them are about the 1st appellate court acting on matters whose evidence is not on record, or matters that were not raised and determined by the trial court. In determining the above grounds of appeal this court will be guided by the principle that an appellate court can only determine a substantial and factual issue to be established by evidence if it has been first resolved by the trial court. In the case of Richard Majenga vs Specioza Sylivester (Civil Appeal No. 208 of 2018) [2020] TZCA 227 (14 May 2020) the Court of Appeal held that: "It is a settled principle of the law that at an appellate level the court only deals with matters that have been decided upon by the lower court. There is plethora of authorities by this Court on this point. See for instance the cases of Hotel Travertine Limited and 2 Others v. National Bank of Commerce Limited [2006] TLR 133 and James Gwagiio v. The Attorney General, Civil Appeal No. 67 of2001 (unreported). Specifically, in Hotel Travertine Limited and 2 Others (supra) the Court stated that:- ”As a matter of general principle an appellate court cannot consider matters not taken or pleaded in the court below to be raised on appeal." 7 Similarly, in this case, the first appellate court was not supposed to introduce a new issue that was not canvassed by the trial court. In the circumstances, it was improper and a misdirection on the part of the first appellate court to proceed to consider and determine such an issue in the respondent's favour at an appellate stage." Moreover, this Court treads cautiously on the grounds of appeal raised because it is alive to the celebrated principle that the 2nd appellate court can rarely interfere with the concurrent finding of facts made by the courts below unless it is necessary to do so, and if the two Courts below acted under the wrong principle of law or misdirection of fact. See the case of Sameer Abdulmajid Juneja vs Yasmin Kassu Mohamed (Civil Appeal No. 149 of 2018) [2024] TZCA 492 (7 March 2024). It is also trite law that in our jurisdiction usually the 2nd appellate Court would not reevaluate the evidence of the trial court. However, where there is misdirection or failure of the 1st appellate court to reevaluate the evidence of the trial court the 2nd appellate Court has the discretion to step into the shoes of the first appellate court and re-evaluate the evidence in order to come up with its own findings. See the case of Athumani Hassani vs Republic (Criminal Appeal 292 of 2017) [2021] TZCA 557 (1 October 2021). Given the grounds of appeal and a cursory glance of the evidence on record, and as it will become apparent shortly, it is clear that there was a misdirection by the 1st appellate Court when it determined the appeal before it. This Court is, therefore, compelled to step into the shoes of the first 8 appellate court and re-evaluate the evidence of the trial court in order to come up with its own conclusion. Upon reexamining the evidence on record this court did not find any iota of evidence or even a prayer or submission that was made by the Respondent in the trial court that she demanded to be transported to Dodoma when she was called upon to defend herself against the divorce petition. The issue of the Respondent to be transported to Dodoma featured for the first time in the prayers contained in the petition of appeal filed on 29th December 2022 in the 1st appellate Court by the Respondent herein. It is clear from the record of the trial court that no evidence was led and adduced on the fact that the Respondent lives or would be residing in Dodoma if the divorce were granted. It follows that, as rightly argued by the Appellant's learned counsel the 1st appellate Court acted on the wrong principle in ordering the Appellant to pay the repatriation costs of the Respondent from Musoma to Dodoma by considering submissions that were not supported by the evidence on record. In the case of Rosemary Stella Chambejairo vs David Kitundu Jairo (supra) the Court of Appeal held that submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence. This is taking into account the fact that there is no evidence on the record as to where the parties herein contracted their marriage. 9 Moreover, there is also no evidence on record proving that there were specific plots that were acquired during the subsistence of the marriage between the parties herein. The Respondent in her evidence simply hinted by passing on page 6 of the proceedings that they bought plots. Also on page 7 of the trial court proceedings, the Respondent mentioned that in their marriage they acquired two plots one in Misungwi and another in Bukoba Urban, one motorcycle, and household items. In the testimony of the Respondent or that of the Applicant, there is no mention of any specific plot or areas on which they are located in Misungwi or Bukoba. It was also not stated in whose names the said plots are registered. This means that the Respondent who wanted to be trusted by the Court that there were plots acquired during the subsistence of the marriage did not provide material to the Court to prove that the said plots truly existed and that they were acquired during the subsistence of the marriage. This is supported by the fact that the Appellant stated that in their marriage they did not acquire any property. Therefore, as rightly argued by the Appellant's learned Counsel the 1st appellate Court was wrong in ordering the division of unknown and/or unexisting properties because the Respondent failed to prove the existence of the said plots on the balance of probabilities, or to prove that it was matrimonial property, and what was her contribution to the acquisition of the same. In the case of Nacky Esther Nyange vs Mihayo Marijani Wilmore (Civil Appeal 169 of 2019) [2022] TZCA 507 (16 August 2022) the Court held that: "It is important to remember that when considering the contribution of the parties to the acquisition of property within io the matrimony, in civil cases, the burden ofprooflies on the one who alleges, a position as stipulated in sections 110 (1), (2) and 112 of the Tanzania Evidence Act, [Cap 6 R.E 2019] (the Evidence Act) and restated in the decision of this Court in Anthony M. Masanga vs Penina (Mama Mgesi) and Lucia (Mama Anna), Civil Appeal No. 118 of 2014 and The Registered Trustees of Joy in the Harvest vs Hamza K. Sungura, Civil Appeal No. 149 of 2017 (both unreported). In light of the above, it follows that orders 4, 5, and 6 as itemized by the 1st appellate Court were erroneously and unlawfully made. The above reasoning also applies to submissions regarding the second ground of the appeal on the division of matrimonial assets as per order number five (5) of the decision of the 1st appellate Court. The specific household items are mentioned on ground 6 of the petition of appeal. However, none of the items were mentioned in the trial court. It is not in dispute that both parties were at one that there were household items because they were living as husband and wife, including the motorcycle which the appellant mentioned as his but was hidden by the Respondent, as per page 03 of the trial court proceedings. The said fact was also confirmed by the Respondent on page 7 of the proceedings. However, the said motorcycle was not specifically identified. Moreover, it was not part of the order of the trial court or that of the 1st appellate Court, and thus this Court will not venture into determining its whereabouts, and ownership or custody given that it was not raised for determination in this appeal. li Moreover, the other household items were also not specifically identified at the trial court and thus it is difficult for this Court to assess and apportion their distribution. It follows that since they were not specifically identified the 1st appellate Court had no justification to mention and identify specific items to be taken by the Respondent based on mere submissions of the Respondent and the contents of the petition of appeal as filed in the 1st Appellate Court. Reverting to the second ground of appeal which was about the 1st appellate court not observing principles governing appeals in Civil Cases, the same has also been partly answered when determining grounds one, three, and four of the appeal above, especially on the issue of evidence which did not feature in the trial court, but considered by the 1st appellate Court because it was brought by way of submissions by the Respondent. However, the matter which was addressed in the submissions supporting the appeal and has not been addressed by this court is the issue of an amount to be paid by the Appellant to the Respondent for maintenance and welfare of the two issues of the marriage. It is not in dispute that the parties were blessed with the two issues of the marriage as explained herein above and as indicated on pages 4 and 7 of the proceedings of the trial court. Given that the issues of the marriage are below 7 years of age the Court granted custody of the children to the Respondent which this court does not find a reason to fault the two courts below taking into account the best interest of the child which should be accorded paramount consideration as provided in section 125 (2) of the LMA 12 and sections 4(2) and 26(1) and (2) of the Law of the Child Act [Cap 13 R.E. 2019] (hereinafter referred to as the 'LCA'). Section 4(2) of the LCA provides that ( 2) The best interests of 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. Moreover, section 26 of the LCA reads: 26 .-(1) Subject to the provisions of the Law of Marriage Act, where parents of a child are separated or divorced, a child shall have a right to - (a) maintenance and education of the quality he enjoyed immediately before his parents were separated or divorced; (b) live with the parent who, in the opinion of the court, is capable of raising and maintaining the child in the best interest of the child; and (c) visit and stay with other parents whenever he desires unless such arrangement interferes with his schools and training program. (2) There shall be a rebuttable presumption that it is in the best interest of a child below the age of seven years to be with his mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of the child by changes of custody. 13 Also in the case of Nacky Esther Nyange vs Mihayo Marijani Wilmore (supra), the Court considered factors to consider when determining the best interest of the child and held that: Moreover, section 37 (4) of the LCA requires the courts when granting custody to primarily consider the best interests of the child. In applications for custody, the best interest of the child is determined in consideration of such factors as; the age and sex of the child, the independent views of the child, the desirability to keep siblings together, continuity in the care and control of the child, the child's physical, emotional and educational needs, the willingness of each parent to support and facilitate the child's ongoing relationship with the other parent (see sections 26 and 39 (2) of the LCA and Ru/e 73 (a) to (i) of the Law of the Child (Juvenile Court Procedure) Rules, GN No. 182 of 2016 (hereafter referred to as the Juvenile Court Rules). The above provisions of the law and the observation of the Court of Appeal regarding factors to consider, or affecting the best interest of the child show that given the age of the two issues of the marriage, it was reasonable to grant their custody to the Respondent, and this court finds no reason to fault the concurrent findings of the two courts below on the issue of custody of the issues of the marriage. The 1st appellate Court also ordered the Appellant to pay TZS 250,000/= for maintenance of the Children of the union instead of TZS 100,000/= ordered by the primary Court. The Appellants faults the 1st appellate Court in enhancing the said amount by considering the amount of his salary and 14 allowances as brought to the attention of the 1st appellate Court by way of submissions from the Respondent. It was also argued that there was no evidence in that respect that was tendered and admitted in the trial court and that no additional evidence was taken on appeal. This court inclines to agree with the learned Counsel for the Appellant that the 1st appellate Court considered facts that were not born out of the records of the trial court especially submissions reproduced on pages 5 and 6 of the judgment of the 1st appellate Court. Even though the order does not specifically state why enhancement was made, it is clear that the 1st appellate court considered extraneous matters not part of the record of the trial court and brought to it by way of submissions on appeal. See the case of Rosemary Stella Chambejairo vs David Kitundu Jairo (supra). However, this Court does not find justification to interfere with the amount the Appellant was ordered to pay for maintenance of his two children because the Appellant himself being the petitioner of the divorce in the trial court did not lead to any evidence as to his income monthly and even in the present appeal there is no specific ground of appeal that challenges the said amount. However, reading the record as a whole it is clear that the Appellant is a police officer whose rank was not on record. It follows that the court had to consider a reasonable amount under the circumstances of the case. It is not in dispute that the Respondent who, as per the record of the court was the housewife, and was given custody of the two children of the marriage. This means that she was going to take care of the children and their father would be responsible for paying for their maintenance covering shelter, food, and clothing the 1st appellate court considered that TZS 15 100,000/= ordered by the trial court was insufficient and enhanced it to TZS 250,000/=. This court finds the above amount overly reasonable for the maintenance of the two children and thus will not interfere with the decision of the 1st appellate Court in that respect because the maintenance of the children and their welfare should be prioritized by the parents by any lawful means possible. Moreover, it is important also to point out that in the present case, the Appellant did not provide material to the trial court that would have been the basis in determining the appropriate amount to be paid for the maintenance of the issues of the marriage. This Court finds comfort in the case of Sameer Abdulmajid Juneja vs Yasmin Kassu Mohamed (Civil Appeal No. 149 of 2018) [2024] TZCA 492 (7 March 2024) where the appellant, in that case, was faulting the Court for awarding the respondent maintenance of the issues of the marriage at the rate of TZS 300,000.00 monthly in disregard of the facts on record that the appellant's income was TZS 150,000.00 per month. The Court of Appeal held that: "From the above submissions, we think that the first appellate court cannot be faulted. Since under section 129 of the Law of Marriage Act [Cap. 29 R.E. 2019] (the Act), the duty to maintain issues of the marriage is on the husband and, in view of the fact that, a child needs as of necessity food, clothes, shelter and other necessities in every day and night, we are in agreement with Mr. Mgongolwa that, the award of TZS 300,000.00 as maintenance of 16 the issues of the marriage was rightly granted under 'any other reliefs as the Court may deem appropriate. In our view, in the proceedings for divorce, where the spouses have children, the issues of custody and maintenance of the children are consequential even if they are not pleaded. For, regardless of the status of the marital relation between his or her parents, the life of the child must go. The relief as to maintenance is thus ancillary or consequential reliefin anyproceedings for divorce or separation. Under section 7(2) ofthe Civil Procedure, [Cap. 33 R.E. 2019 ("the Code”) therefore, such relief being merely consequential can be granted even if it is not pleaded. " Moreover, in the case of Jerome Chilumba vs Amina Adamu 1989 TLR 117 (TZHC), this Court held that: "The amount which a child should be paid as maintenance will depend on the circumstances of each case." In light of the above authorities, it is clear that the appropriate amount for maintenance of the children of the marriage shall be determined and ordered by the court depending on the circumstances of each particular case. Moreover, in any divorce proceedings, where the spouses have children, the issues of custody and maintenance of the children are consequential even if they are not pleaded. This means even where the parties had not led evidence on their economic means, the court has the discretion to assess the circumstances of the case and order a reasonable amount to be paid by a responsible party. 17 Under the circumstances, orders number one (1) and two (2) as itemized by the 1st appellate Court on page 9 of its judgment are confirmed by this court. Moreover, order number three (3) as itemized by the 1st appellate Court on page 9 of its judgment is slightly modified in that the Appellant is also required to cover the education and health expenses of the issues of the marriage. As regards health matters the Appellant shall register the children of the marriage in a relevant health insurance for convenience purposes. Besides, as alluded hereinabove orders four (4), five (5), and six (6) as itemized on pages 9 to 10 the judgment of the 1st appellate Court are quashed and set aside. In light of the foregoing, this appeal is partly allowed to the extent expounded hereinabove. Each party shall bear their costs. It is so ordered. Dated at 25th day of November 2024. Judge The judgmeh^iva^elivered in the presence of the Appellant, and in the absence of the Respondent who was duly notified. Judge 25/11/2024 18