PC

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC. CIVIL APPEAL NO. 08 OF 2023 (Arising from the judgment and decree of the District Court of Masasi at Masasi in Matrimonial Appeal No. 11 of2022and originating from the Primary Court ofMasasi District at Lisekese in Matrimonial cause No. 31 of2022) RAMADHANI MUSSA ZAWADI..................... ,............... ....APPELLANT VERSUS AISHA ABDALLAH KATAU.......... ..... .................. RESPONDENT JUDGMENT 24th April, and 7th May 2024. DING'OHI,}. The Appellant, RAMADHANI MUSSA ZAWADI, and Respondent, AISHA ABDALLAH KATAU, were husband and wife, respectively. The marriage was polygamous, in the circumstances that, when parties entered on it, the Appellant had already with the first wife (senior wife). That Islamic marriage was contracted in December 2017. It is an undisputed fact that the marriage was blessed with three issues namely Salma Ramadhani Mussa Zawadi aged 5 years, Salmin Ramadhani Mussa Zawadi aged 4 years, and Shania Ramadhani Musa Zawadi aged 2 years. The marriage between the parties Page 1 of 23 herein was found irreparably broken down by the decree of the Primary court of Masasi District at Lisekese (the trial court). That was on 25/07/2022. I would not differ from those findings. After the order of decree of divorce, the trial court proceeded to issue an order for the division of properties jointly acquired during the subsistence of the marriage. In the division,-the trial court ordered that one motor vehicle make Toyota Coaster, a house at Mali Asili, two containers, and the Wapiwapi house, be divided at 90% and 10% ratio, respectively, between the parties. As to the custody and maintenance of the three issues of marriage, the trial court found that no party had prayed anything concerning those rights. However, according to the trial court, since the evidence is there that the respondent is a mere housewife and has no means of income, and since it was the duty of the husband to maintain children of the marriage, the appellant was ordered to make sure that children are provided with all necessaries for their welfare. That decision did not please the respondent herein, hence the appeal in the first appellate court. After hearing arguments by both sides, on appeal, the first appellate court found merit in the appeal by the respondent. It reversed the decision of the trial court on the division of the properties, custody, and Paf-e 2 of 23 maintenance of issues of marriage. The respondent was given the house Situated at Mkapa Road and was awarded the sum of Tshs.7,000,000/=, to be paid by the appellant, as business capital. As to the welfare of the three children of the marriage, the first appellate court vested the children in the custody of their mother, the respondent, while the appellant was ordered to maintain them at Tshs. 150,000/= monthly, per child. That is to say, the appellant was required to pay Tshs. 450,000/= per month for three children. The Appellant is unhappy with the decision of the first appellate court. The following are his grounds of appeal before this court; 1. The learned trial magistrate erred in law and fact by distributing a house located at Wapi Wapi (Mkapa Road) to the respondent without considering that the said house is hot a matrimonial property. 2. Thatz the learned first appellate court Magistrate erred in law and fact by ordering the appellant to provide Tshs. 450,000/= Monthly as maintenance of children without considering the economic status of the appellant. 3. That, the learned trial court magistrate erred in law and fact by ordering the appellant to pay the respondent Tshs. 7,000,000/ = which is not matrimonial property and without any justification. Page 3 of 23 4. That, the learned trial magistrate erred in law and fact by not considering the fact that the respondent did not contribute anything in the acquisition of the properties of the appellant. Wherefore, the Appellant prays that the judgment and orders of the first appellate court be quashed and its place the whole judgment and orders of the trial court be upheld, with costs. At the hearing of this appeal, the Appellant was represented by Mr. Stephen Lekey, the learned advocate. The Respondent was for herself. It was agreed by both sides that this appeal be and was argued by way of filing written submissions. In support of the appeal, Mr. Lekey opted to argue on the 1st and 4th grounds together, first. In his submissions, the learned advocate blamed the first appellate court for distributing the House located at Wapiwapi (Mkapa Road) to the respondent. He avowed that the power to order the division of matrimonial properties is derived from the provision of section 114 of the Law of Marriage Act. According to him, before distributing the matrimonial assets, the court must primarily decide whether the property was acquired by the parties during the subsistence of marriage. Thereafter the court will decide the extent of the contribution by each party as per section 114 (2) of Page 4 of 23 the Act. Mr. Lekey further added that the contribution must be measured in terms of money, property, or work toward the acquisition or improvement of the assets. He backed up his position with the landmark case of Bibie Mauridi V Mohamed Ibrahimu [1989] TLR 162. In furtherance, Mr Lekey professed that the Respondent failed to prove how she contributed to the ostensible properties. The learned advocate drew up the concentration of this court to the other issue that the Appellate court failed to take into consideration that the Appellant had more than one wife. He argued that the court should take into account the contributions of co-wives to the alleged properties. More distant he; cited the decision of this court in Mwamoi Shehe Mtikuu vs Issa Matala Mduma (Civil Appeal No. 72 of 2020) [2021] TZHC 2362. On the second ground of appeal, it was argued that the trial court was wrong in ordering the appellant to pay the respondent Tshs. 450,000/= monthly as maintenance of children without considering the economic status of the Appellant. According to Mr. Lekey, no reasoning was provided by the first appellate court as to how it arrived at ordering the payment of Tshs. 150,000/= to the respondent, per child. It was the learned advocate's further submissions that it is not open as to how the first appellate court came up Page 5 of23 with that order taking into consideration that the issue of custody of children had never been discussed as it had never been sought by the parties in the divorce petition. To shore up his stance, the learned advocate cited the case of Anyingisye Mlawa vs Tukulamba Kibweja (Civil Appeal No. 27 of 2020) [2021] TZHC 7104 where it was observed that the order of maintenance is not automatic, the court has to inquire, Mr. Lekey further added that, since the trial court did not inquire about the issue of custody and maintenance of children, the first appellate court had no materials upon which to base its decision. He opined this matter be remitted to the trial court to consider the issue of custody and maintenance after haying enough information. He supports his argument with the case of Jeni Mushi v Hillary Kimaro (PC Civil Appeal No. 3 of 2023) [2023] TZHC 21328. Mr. Lekey did not end there on that issue, he submitted that if the order for custody and maintenance as done by the first appellate court is left to stand, the interest and welfare of the other children of the Appellant with his other wives may be endangered since their maintenance was not taken into account. He defended his position with the provision of section 44 of the Law Page 6 of23 of the Child Act and the case of Faraja Nsemwa vs Alex Mbilinyi (PC Matrimonial Appeal No. 4 of 2020) [2020] TZHC 4135. On the third ground of appeal, the learned advocate protests against the first appellate court's finding for ordering the Appellant to pay the Respondent Tshs. 7,000,000/= baptized as capital to start life. He submitted that the first appellate court did not account for where the amount of Tshs 7,000,000/= came from in the parties' assets. He supports his taking with the case of Nacky Esther Nyange (supra) where the Court of Appeal declined to distribute properties that are not matrimonial. In reply, the respondent came with a new issue that the trial court had no jurisdiction to entertain the divorce petition in the absence of the certificate by the Marriage Conciliation Board that it failed to reconcile the parties herein. This issue though not decided in the first appellate court was one of the complaints by the respondent in the first appellate court. I will come to it later when the need arises. Against the 1st and 4th grounds of appeal, the respondent submitted that during her marriage with the appellant, she was not working but rather performed her matrimonial responsibilities with the view of assisting the Page 7 of 23 Appellant. She argued that at the moment of the existence of the marriage between her and the appellant, they acquired several properties which the appellant did not acquire before marrying her. To back up her position she cited the case of Dalia Njako vs Dominic Hyera, D.C Civil Appeal No. 9 of 2022. As regards the 2nd and 3rd grounds of appeal, the respondent almost conceded to them. She submitted that both courts below failed to make proper evaluation of the matter including requesting to know the wishes of the issues before giving an order which affects them. According to the respondent, the law requires the trial court to make clear findings on the welfare of the issues after the dissolution of marriage based on the best interest of the children. It is the respondent's further submissions that, the Appellant moved with the three issues, the last being aged below three years old. The respondent is of the view that the said issue needs to be under the custody of the respondent herein pending the determination of the matter. That, the issues are suffering more for want of proper love and care from their mother, the respondent, simply because the Appellant moved with them. Regarding the 3rd ground of appeal, the respondent conceded that the sum of Tshs 7,000,000/= was erroneously awarded without justification. Page 8 of 23 According to the respondent what matters is the evidence of the efforts made by each party in the acquisition of the matrimonial properties. In a brief rejoinder, Mr. Lekey argued in respect of 1st ground of appeal that the respondent either in ignorance or design included properties that are not at issue in this appeal. That, unfortunately, she did not file a cross-appeal. He added that the respondent in her submission included the properties which are not at issue in this appeal while the Appellant's contention is only on the house located at Wapiwapi (Mkapa Road). The learned advocate opined that if the respondent was not satisfied with the decision of the District court, she should have filed a cross-appeal to challenge the decision. Having carefully gone through arguments by both sides as expounded through respective written submissions, the obvious issue is whether this appeal has merit. I have already found that the marriage between parties herein has irreparably broken down as also found by the trial court. Before commencing to consider the merit or otherwise of this appeal, I have reminded myself that this is the second appellate court. It has no primary duty of re-evaluation of the evidence given in the trial court. It is the first appellate court that in law is vested with that duty. Numerous case laws gave Page 9 of 23 a stance on the jurisdiction of the appellate courts over the decisions of the trial/lower courts. In the case of Japan International Cooperation Agency (Jica) vs Khaki Complex Limited (Civil Appeal 107 of 2004) [2006] TZCA, the Court of Appeal of Tanzania approved the case of Watt v Thomas (1947) AC 484cz where it was observed inter alia that; . ...An appellate Court has indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellant court itself have come to different conclusion" As to the second appellate court; it has powers to interfere with and disturb the concurrent findings of the lower courts, though, with caution. In the case of the Registered Trustees of Joy in The Harvest vs Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139, the Court of Appeal Page10 of 23 of Tanzania approved the decision of Hassan Mzee Mfaume v. R [1981] TLR 167, where it held, inter alia, that; "Where the first appellate court fails to re-evaluate the evidence and to consider the material issues involved, on a subsequent appeal the Court may re­ evaluate the evidence in order to avoid delays or may remit the case back to the first appellate court. ” And, in another case of Jamali Ally @Salum vs Republic (Criminal Appeal 52 of 2017) [2019] TZCA 32, it was held that; 'Ms stated by this Court in so many occasions, generally, a second appellate court should not disturb the concurrent findings offact unless it is clearly shown that there has been a misapprehension of the evidence or a miscarriage of justice or a violation of some principle of law or practice," Based on the foregoing authorities, and having scrutinized the lower court's records, it is evident that the first appellate court did not properly perform its required duty of re-evaluating the evidence in the trial court's record as Page 11 of 23 required by the law. Had the first appellate court properly re-evaluated the evidence, it would not have arrived at the decision it made. The re- evaluation of evidence entails a critical review of the material evidence on record to test the soundness of the trial court's findings. In Standard Chartered Bank Tanzania Ltd v. National Oil Tanzania Ltd and Another, Civil Appeal No. 98 of 2008 (unreported), the Court of Appeal held that; "The law is well settled that on first appeal the Court is entitled to subject the evidence on record to an exhaustive examination in order to determine whether the findings and conclusions reached by the trial court stand (Peters v Sunday Post, 1958 EA 424." In answering the issue as to whether the evaluation of the evidence of the parties regarding the matrimonial properties was considered, it is prudent if I first examine what constitutes a matrimonial property. In the case of Ha bi ba Ahmadi Na ngulukuta & Others vs Hassan i Ausi Mchopa & Another (Civil Appeal No. 10 of 2022) [2022] TZCA156. The Court of Appeal had the following to say on what it meant of the matrimonial property at our place; Page 12 of 23 "In ourjurisdiction, issues of matrimonial properties are governed by the Law of Marriage Act. However, the said law has not specifically defined the term matrimonial property or assets. Unlike in other jurisdictions like India, the term ’matrimonial assets' is defined under section 4 (1) (a) of the Matrimonial Property Act, Chapter 275 Revised Statutes, 1989 as hereunder: "In this Act, "matrimonial assets' means the matrimonial home or homes and all other real and personal property acquired by either or both spouses before or during their marriage... " By the above definition, matrimonial property refers to all assets that are acquired by one or both of the parties, during the existence of their marriage. The properties include those acquired by one party before the marriage but developed by parties to the marriage, in one way or another, after the marriage. The question now is, whether the properties that were listed by the appellant in the trial court constitute matrimonial ones. Here is where I Page 13 of23 will require great assistance from the evidence by parties herein in the trial court record. On pages 4 & 5 of the typed proceedings, the respondent exposed before the trial court that, she was married to the appellant in 2017. She petitioned for divorce following misunderstandings in the marriage in that, according to her, the appellant was neglecting her. The Appellant gave talaka to the Respondent, under Islamic rites. It was the Respondent's case that, by then the Appellant had a house at Mtandi, a plot of which, was acquired with the senior wife. The Appellant was also with unfinished modern houses (lenter stages) at Nyasa, Mailisita, and Wapi wapi which were substantially completed during the marriage between parties herein. It was the respondent's further evidence that during the existence of marriage, they also bought a "tipper" car with registration number T 448 DMS, six minibusses make a coaster with the registration numbers T 898 DTK, T 185 DUR, T 612 DVZ, T 361 DXL, T 116 DYP, T 575 DZF, and Toyota Harrier with the registration number T 130 DVY. As to her contribution towards the acquisition of those properties, the respondent told the trial court that she did not contribute anything in terms of monetary and work, rather than being a housewife (Performing domestic duties). Page 14 of 23 On his part, the Appellant, on pages 14 and 15 of the typed proceedings, told the trial court that before he married the respondent as a second wife he had one car make Toyota Noah, and three houses, two of them situated at Mtandi and one at Nyasa, within Masasi. He also told the trial court that by then, he had three plots; one at Mtandi, another at Napupa, and the third at Wapiwapi. According to the appellant, he started construction in the Wapiwapi plot, three months after he married the respondent, from a cashew nut business fund. It was also his evidence that, during the existence of the marriage, he constructed a house at Mali Asili Mpya in Masasi town. As to the minibusses listed by the respondent naming them to be matrimonial properties, the appellant stated that the minibusses do not belong to him. He was just given by his boss to supervise the business. The appellant explained that the boss agreed with him that he would be paid the sum of Tshs. 100,000/= per month, as a supervisory charge though those m/vehicles were in his name (Appellant). The three minibuses are with registration numbers; T 361 DXL, T 116 DYP, and T 575 DZF. However, the appellant did not say anything about the remaining three min buses with registration numbers T 898 DTK, T 185 DUR, and T 612 DVZ which were also registered in his name. Page 15 of 23 I have considered the evidence and the surrounding circumstances of this case. The general presumption is that, in registered properties, the one in whose name the property is registered, is presumed to be the rightful owner. Since there is no dispute that three min buses (T 361 DXL, T 116 DYP, and T 575 DZF) are in the names of the appellant the same appellant can hot turn himself as a mere agent of those registered properties in the absence of the proper transfer transaction in accordance of the law. The law can not be simple like the appellant takes. He was required to call the alleged owner of the property to testify about his ownership. That was not done and no reason was assigned for the failure. The m/ vehicles listed by the Appellant in the trial court are registered properties; unless otherwise lawfully proved, the registered property shall be known to have been owned by a person whose name is in the registration documents, and not, otherwise. The documents alleged to be the contracts of the hire of the motor vehicles referred to by the appellant and which were tendered by him at the trial court lack evidential value because the marker and/ or the alleged owner of the motor vehicles was not summoned to testify. Those documents can not be considered at this stage. They are hereby expunged from the evidence of the appellant given in the trial court. Having so done the remaining evidence Page 16 of 23 is from registration cards of the motor vehicles that mention the appellant as the owner. I am aware that the trial court recognized only four properties which are; one minibus, the house located at Mali Asili, two containers, and a part of a house situated at Wapiwapi, as matrimonial properties. (See page 14 of the trial court judgment). There is also a stance by the appellant that the properties listed by the Respondent were acquired by his efforts before this marriage. However, there is a shred of strong evidence that even the properties that were acquired by the appellant before the marriage like houses, were substantially improved during the marriage of the parties herein by their joint efforts. Those are matrimonial properties in terms of the provisions of section 114 (3) of the Law of Marriage Act, Cap. 29 R.E. 2019 which provides; "(3) For the purpose of this section, reference to assets acquired during the marriage includes assets owned before the Marriage by one party which have been substantially improved during the Marriage by the other party or by theirjoint efforts." Page 17 of 23 In division therefore, after re-evaluating the trial court evidence, this court finds that the following are matrimonial properties jointly acquired by the parties herein during the subsistence of their marriage: six minibusses make coasters with the registration numbers T 898 DTK, T 185 DUR, T 612 DVZ, T 361 DXL, T 116 DYP, and T 575 DZF, Toyota Harrier with registration number T 130 DVY. Other properties are two containers, and two houses one located at Mali Asili and another located at Wapiwapi. In its decision, the trial court gave the respondent 10% of the value of the properties. According to his submission, the Appellant does not dispute that ratio of distribution. As observed herein above, the dispute is on the list of properties to be distributed. The appellant maintains that the Respondent is entitled to be given 10% of the house only, situated at Wapi Wapi. I have considered that. I think the appellant is wrong. As elaborated herein above, the respondent is entitled to a division of all properties acquired during the lifetime of marriage as listed above. As to the ratio, I find that, under the circumstances of this case, the ratio of 90% and 10%, respectively, is proper and meets the ends of justice in this case. The properties are to be evaluated by the recognized valuer to be appointed by the trial court. The order of Page 18 of 23 evaluation and division of the matrimonial properties is hereby certified to the trial court for the conformable execution. The last issue is the maintenance and custody of the children. On records, there were two findings, one from the trial court, and another from the first appellate court. Starting with the trial court, on page 15 of the typed judgment, it observed suo motto} "pia kuhusu swala la watoto, ingawa hakuna miongoni mwa wadaawa alieomba chochote kuhusu watoto, lakini sababu ushahidi upo wazi kuwa SMI ni mama wa nyumbani na hana shughuli yoyote anayojishughulisha nayo kwa sasa kumuingizla kipato, mahakama imeona vyema kuzungumza kuhusu swala la matunzo ya watoto watatu SU1 na SMI waUopta kwenye ndoa yao. Kuhusu swala !a matunzo ya watoto mahakama imezingatia kifungu cha 129 cha sheria ya ndoa [SURA YA 29MAREJEO YA MWAKA 2019] ambacho kinampa mwanaume wajibu wa kutunza watoto Page 19 of 23 wake kwa kuwapa mahitaji yote kama mavazi, malazi, elimu na chakuia kwa kuzingatia hali yake ya kimaisha, Hivyo kwa kua SMI hana namna yoyote ya kumuingizia kipato kwa sasa mdaiwa atawajaibika kuwahudumia na kuwatunza watoto aliopata na mdai kwa kuhakikisha wanapata huduma zote kwa ajili ya ustawi wa watoto hao. Sgd MASIMBA LA RM 25/07/2022 Again, on the first appellate the learned first appellate magistrate had this to say; " The maintenance of the three children, father to pay Tshs. 150,000/= per child per month under section 129 (1) of LMA Cap 29 R.E 2019.......... Therefore the children mentioned in this matrimonial case will stay with their mother." Page 20 of 23 From the above transgression, both lower courts have made their respective orders without availing parties an opportunity to present their views on the issue of custody and maintenance of the children. That was wrong. Borrowing from the words of Mr. Lekey, the learned advocate, in his submission I find that, if the order for custody and maintenance of children as made by the lower courts, is left to stand, the interest and welfare of the children will be at stake. Under the circumstances, there is no way I can not find that there was no required material that would enable the lower courts to make a proper decision on the matters relating to the custody and maintenance of the issues of the marriage in this case. The trial court ought to have inquired and acquired enough information from the parties and the children, where appropriate, to enable it to consider the wishes and interests of the children. The order of maintenance and/or custody of the issues of the marriage by parties herein, wherever made by the lower courts in this case, is hereby quashed and set aside. For the avoidance of doubts, this court has decided as follows: (i) As observed by the lower courts, the marriage between parties herein has irreparably broken down. The trial court was right to issue a decree of divorce. Page 21 of 23 (ii) During the subsistence of marriage parties jointly acquired the following properties: A house situated at Mali Asili, a house situated at Wapi Wapi, two containers, six min buses with Reg numbers ( T. 898 DTK, T. 185 DUR, T. 612 DVZ, T. 361 DXL, T. 116 DYP and T. 575 DZF) arid Toyota Harrier car with Reg. No. T. 130 DVY. (iii) The properties jointly acquired by parties (ii) are to be divided, among them, at 90% (Appellant) and 10% (Respondent) ratios, respectively, of the values. (iv) For the conformable execution of the order of the division, the properties listed above (ii) are to be properly evaluated by the recognized valuer at the instance of the trial court. (v) The issue of the custody and maintenance of the children is to be considered afresh by the trial court after giving parties and children, where appropriate, an opportunity to be heard. For the interest of children, this matter should be done as early as practicable, and, without any further ado. (vi) Under the circumstances of this matter, there will be no order as to costs. Page 22 of 23 The appeal is partly allowed. DATED at MTWARA this 7th day of May 2024 COURT: Judgment delivered this 7th day of May 2024 in the presence of Mr. Stephen Lekey, the learned Advocate, for the Appellant and the Respondent in person S>R. DING'OHI JUDGE 07/05/2024 Page 23 of 23