paskazia david kakwaya vs gilbert finiasmanyerere 2020 tzhc 635 31 march 2020

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM (PC) CIVIL APPEAL NO. 100 OF 2018 PASKAZIA DAVID KAKWAYA................... APPELLANT VERSUS GILBERT FINIAS MANYERERE.................RESPONDENT {Arising from Kinondoni District Court in Matrimonial Cause No. 38 o f 2017 & N o.l o f 2017) JUDGMENT Date o f last order: 3/10/2019 Date o fJudgment: 31/3/2020 S.M. KULITA, 3 . The appellant PASKAZIA DAVID KAKWAYA being dissatisfied with the decision of the Kinondoni District Court originating from the decision of Magomeni Primary Court lodged his appeal containing a total number of six grounds which can be paraphrased as hereunder; 1. That the magistrate erred in law and in fact by granting ownership of two houses at Kibamba Mji Mpya and Kiluvya to the Respondent while it is on record that the appellant and respondent themselves had voluntarily given the said houses to the issues of marriage. 2. That the magistrate erred in law and fact for not considering that maintenance of the issues of marriage is a legal responsibility of the respondent. 3. That the magistrate erred in law and fact for deciding on new evidence by the respondent. 4. That the magistrate erred in law and fact for arriving to a decision that the issues of marriage be maintained at the low amount of Tshs. 100,000/= per month. 5. That the magistrate erred in law and fact for neglecting to divide part of the matrimonial properties namely motor vehicles; Canter No. T 170 DHZ, Fuso No. T 932 CZT and Cresta No. T 214 CZU, a landed property at Kibamba and shares at NBC Bank valued seven million shillings. 6. That the magistrate erred in law and facts for not considering the substantial weight of evidence of the appellant given during the trial. During the hearing of this appeal where the parties preferred to argue by the way of written submission the appellant was represented by the Learned Counsel Mr. Mashaka Ngole while the respondent was represented by Mr. Ludovick Nickson, Advocate. With regard to the 1st ground of appeal the appellant's Counsel Mr. Mashaka Ngole submitted that in the proceedings of the Primary Court the parties voluntarily agreed that the two houses in Kibamba Mji Mpya and Kiluvya be allocated to the issues of marriage. He submitted that the 1st appellate court magistrate wrongly overruled the decision of the primary court. As for the ground no. 2 of the appeal, the Learned counsel submitted that section 129 and 130 of the Law of Marriage Act provide the duty to maintain his children to the father and not otherwise. He said that the fact that the duty is placed to the father does not entitle him to be granted the two houses while custody of the issues is vested to the appellant. He is of the view that the trial Magistrate wrongly arrived to the said decision. Arguing on ground three of the appeal, the Learned counsel submitted that the respondent submitted new evidence during the hearing of the appeal in respect of the mortgaged house that the respondent was the only party who was repaying the said loan. That being the new evidence submitted by the appellant at the district court should be varied by this court. Arguing on ground four of appeal the appellant's learned counsel submitted that, the district court arrived to the decision that the respondent pay a sum of Tshs. 100,000/= without giving reasons as to how it arrived to such decision. The learned counsel went on to submit the said amount is too small and does not reflect the needs of the issues of marriage. As for ground five and six, the learned counsel submitted that the said properties were acquired during the subsistence of the marriage between the parties. The counsel submitted that contribution to the acquisition of property is the only factor to rely when the court arrives at the decision towards the division of matrimonial properties. The counsel further submitted that this doctrine should apply even to the other matrimonial assets; motor vehicles, the shares and the landed property, that all should be subject to division between the parties. In reply to the appellant's submissions the respondent submitted that, with regard to the first ground of appeal that there is no record that he agreed with the appellant that the properties and Kiluvya and Kibamba should be given to the issues of marriage. He submitted that the matrimonial properties belong to the parties, they cannot be subject to division to the issues of marriage. He also submitted that in dividing the matrimonial properties the court should address itself to the extent of contribution to acquire matrimonial property. Therefore, that ground of appeal has no merit. With regard to ground no. 2 of appeal, the respondent's learned counsel submitted that the parties herein have the same almost similar income. He also submitted that the district court gave the respondent the said two houses so that they could support him in maintaining the issues of marriage. Arguing ground three of appeal, the respondent's learned counsel submitted that the appellant wants the division of the properties which never existed at the subsistence of their marriage. He also said that the other house which the appellant claims she did not contribute in its acquisition and it has already been sold by the bank. The respondent's learned counsel further submitted that the appellant was a house wife and the respondent is the one who acquired those properties. The counsel is of the view that the appellant is wrong to claim those properties. Replying on the ground four of appeal the respondent learned counsel submitted that the district court was right to order the respondent to pay the respondent a total sum of Tsh, 100,000/= per month as maintenance for the issues of marriage as the respondent is also responsible to provide for other needs of the issues of marriage. He submitted that the respondent depends on the two houses to generate the income. With regard to ground five of appeal, the respondent's counsel submitted that the appellant did not prove the existence of the said properties as well as the extent of contribution in acquiring the said properties as required under section 110 and 111 of the law of evidence Act. He went on to submit that the appellant was given three houses out of seven houses thus the district court decision is in favor of the appellant. The respondent's learned counsel concluded by praying for the dismissal of this appeal. In the rejoinder the appellant's counsel maintained the position as submitted in the submission in chief. From the submission of the parties, I have noticed that there is no dispute on the issue of custody of children that they should stay with their mother, Appellant. As for the issue of the amount that the respondent should provide for the maintenance of the 2 issues that the parties have been blessed to have, section 129 of the Law of Marriage Act places the duty to maintain the infant children to the father as it has been rightly ordered by the trial court and upheld by the first appellate court. The issue is whether the sum of Tsh. 100,000/= per month provided by the trial court and blessed by the 1st appellate court is reasonable. In this appeal the appellant claims it to be insufficient while the respondent alleges that it is excessive. Having gone through the records of the trial court and the first appellate court I have noticed that there is no detail explanation given in respect of that order of payment of Tsh. 100,000/= per month by the respondent. With regard to grounds number 1 and 5 of appeal, the appellant's Learned Counsel submitted that among the matrimonial properties which were not ordered for division are shares at the NBC bank of which he regarded injustice. The records show that the trial court disposed that issue just by the statement that there is no proof of its existence without taking any task of satisfying itself on its truthfulness. To find the truth and justification of distribution the trial court could have summoned officer(s) from the said bank to prove whether there was such a share at NBC Bank, whether it was sold as alleged by the respondent and if so when was it done and how much was acquired. With regard to the two landed properties being given to the issues of marriage, the records of the trial court indicates that the parties consented the said properties to be allocated to their children. The first appellate court held that the said properties should be given to the respondent as he is responsible for maintenance of the infant children. This court concurs with the finding of the 1st appellate court that the trial court did not properly addressed itself on this issue as the matrimonial properties belong to parties and they are subject to division between the parties. But granting two houses located in Dar es Salaam to the respondent just for enabling him to provide the sum of Tsh. 100,000/= for maintenance of the issues does not make sense as there is no equality at all. The said houses must be creating more than that sum per month. In fact maintenance of the infants is the independent issue that it is the duty of the infants' father, it has no connection with the distribution of the matrimonial assets to the parties. The assertion by the respondent's counsel that the motor vehicles; Canter with registration no. T 170 DHZ, Fuso with registration no. T 932 CZT and Cresta with registration no. T 214 CZU have never been owned by parties, that the said motor vehicles do not exist without any explanation does not make sense. In that situation the trial court was supposed to inquire the Respondent on that allegation. In my view the institution like the Tanzania Revenue Authority (TRA) could be invited to resolve that issue and the court has powers to summon any officer from that office for that purpose. Inquiry was supposed to be done as well for the landed properties located at Kibamba and Kiluvya which are said to be not matrimonial assets as per the respondent, relevant authorities could resolve that issue as well. For the landed property alleged to have been sold by the bank it must be regarded the matrimonial asset, if it is proved that it was real sold the appellant was supposed to be considered in its division so longer as it was acquired within the marriage life and the appellant contributed to its acquisition, even if it was registered in the name of the respondent only. The respondent's Learned Counsel submitted that the said landed property was sold by the bank thus the appellant claims for something which does not exist. It is the findings of this court that if at all the said mortgaged property was sold by the bank it should be shown clearly as to the amount which was owed by the bank, the amount settled and the remaining balance. In that regard there is no evidence that the said landed property was actually sold by the bank. Hence the appellant was required to have her share, unless it is proved otherwise. The trial court never made any inquiry in respect of that issue so as to know the truth which could make it to reach into a fair decision in respect of division of that property. In this situation the bank official(s) could be in a good position to give the real status on the said allegation. Generally, the above mentioned issues were not fully resolved by the trial Magistrate. He just concluded them through the mere statements of the parties without any evidence to prove or disprove them. As for the nature of the case it was necessary for each party to adduce evidence for what he/she alleges in respect of existence or none existence of the properties alleged to have been co-owned by the parties. As stated earlier the court is also empowered to call any person as a witness in order to resolve any issue before it. As for the issue of money that the respondent is required to pay the appellant for the maintenance of the infants has also been reached without sufficient inquiry to the parties. It was ordered to be Tsh. 100,000/= per month of which the appellant claims it to be insufficient while the respondent says that it is excessive. In that situation the solution is for the court to order trial de novo, that the said matter to be retried particularly on the issue of division of Matrimonial Assets as well as the amount that the respondent should pay for maintenance of the issues. The issue of custody of the infant children to their mother remains undisturbed as it was fairly decided and has no dispute at all. In upshot the issues of division of matrimonial assets and the amount of money that the respondent is required to provide per month for the maintenance of the infants should be tried de novo. For the sake of justice trial de novo should be done by another Magistrate with competent jurisdiction sitting with a new set of assessors. S.M. KULITA JUDGE 31/03/2020