said Mchalama

•I t IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO DC CIVIL APPEAL NO. 5759 OF 2024 (ORIGINATING FROM THE DECISION OF THE DISTRICT COURT FOR KILOMBERO IN MATRIMONIAL APPEAL NO 1 OF 2023, FUTAKAMBA SRM- DATED 12/02/2024) SAIDI SELEMANI MCHALAMA APPELLANT VERSUS MWAJUMA MKODO HUSENI RESPONDENT JUDGEMENT DATE OF JUDGEMENT- 17/07/2024 MANSOOR,J. Mwajuma Mkodo Huseni, herein referred to as the "respondent" petitioned before the District Court of Kilombero at Ifakara for divorce, division of the assets acquired during the subsistence of their marriage, and also for the custody and maintenance of their four issues of marriage. The duo had celebrated the Islamic marriage in 2006 and were blessed with four issues, namely Shar Habibu (16 years), Abdul Said (11 years), Ridhiwani (6 years) and Mudathir (3 years old). In 2021, after 15 years of happy 1 I Page r L 1- « . I '--T - marriage, the duo started quarreling and the marriage went sour. While the respondent claimed cruelty, desertion and lack of care as the appellant had married a second wife, the appellant accused the respondent of practicing black magic as well as Infidelity. The couple tried to save the marriage through their parents and elders but In vain. They also went to BAKWATA for reconciliation but the efforts did not bear any fruits. The respondent pleaded under paragraph 4 of the Petition that BAKWATA In Mang'ula had tried to reconcile the parties herein but the reconciliation failed. The appellant annexed the Certificate Issued by BAKWATA proving that the marriage between the parties has Irreparably broken down and could not be reconciled. This certificate from BAKWATA was admitted as evidence and marked as Exhibit'Pll'. The appellant who was the respondent in the Trial Court did not dispute this fact that him and the respondent/Petitioner were married and they celebrated their marriage under the Islamic rituals. The first Issue determined by the court was not an undlsputable fact as both parties agreed that they are husband and wife and had celebrated their marriage under the Islamic rituals. They even went to BAKWATA Reconclllatory Board for reconciliation as they married under the Islamic laws. Section 30(1) and (3) 2I Page of the Law of Marriage Act [Cap.29 R.E 2019] herein referred as the Law of Marriage Act recognizes marriages celebrated under the Isiamic rituais, it provides; Section 3(1) The marriage may be celebrated according to the rites of a specified religion in any place habitually used as a place of public worship or a place of gathering by the followers of that religion, by a minister of that religion who has been licensed in that behalf by the Registrar-General: (3) A marriage may be celebrated in Isiamic form by any kadhior by a registration officer who is a Muslim. The second issue which was undisputed but ought to be decided by the Trial Court was that the marriage had irreparably broken down. The Court under Section 99 of the Law of Marriage Act can only issue a decree of divorce unless the court is satisfied that the breakdown is irreparable. Section 107 of the Act breaks down the criteria under which the Magistrate needs to consider to make a finding that the marriage had irreparably broken down, and the factors includes those of Infidelity, adultery, and cruelty. 3I P age I i The District Court had decided that parties herein were not married under the Isiamic laws or rituals, and also the presumed marriage was rebuttable despite the fact that the couple stayed married for over 15 years and they were blessed with four children. The Trial Magistrate said the following at page 4 of the typed judgement: "since the appellant and respondent cohabited for a period of more than ten years, the presumption of their being "duly married" is rebuttable but the appellant is entitled to same reliefs as any other woman upon dissolution of a formal marriage pursuant to the provisions of section 160 (2) of the Law of Marriage Act. In the case at hand there is no marriage to dissolve or for which a separation order can be ordered for that matter " The Trial Magistrate then issued an order of divorce at the last page of her judgement and proceeded to distribute the assets between the couple, and ordered the children to remain under the sole custody of the respondent/petitioner, and the appellant herein was not given the right of visitation. The Trial Magistrate issued the following reliefs in favor of the respondent: 4I Page 1. The union of the parties herein accordingiy dissoived; 2. Division of jointiy acquired properties as discussed herein above; 3. The respondent has an absoiute duty to maintain the issues as provided under section 129 (1) of the LMA, thus, he shaii, at the tune of Tzs 50,000/= pay for each issue and as evidenced at the hearing both parties are earning monthiy from their businesses as both contributed to their acquisition of properties, the respondent shall contribute towards school and other expenses; 4. Custody is fully given to the petitioner; 5. No order as to costs, each party to bear its own costs. The husband, who is the appellant herein was aggrieved, he filed an appeal raising ten (10) grounds of appeal: 1. That the Trial Magistrate erred in law and fact when she distributed the assets which were exclusively acquired by the appellant. 2. The Trial Magistrate erred in law and fact for not considering the evidence of the three witnesses who testified for the appellant hence failure to analyze the evidence; 3. The Trial Magistrate erred in law and fact in distributing the assets to the parties, that she gave the assets to the respondent which of higher 5 I Page value than those given to the appellant. That she should have distributed the assets by percentage. 4. The Trial Magistrate was biased when she was analyzing the evidence of parties herein. 5. That the Trial Magistrate erred in fact and in law when she gave the house located In Kiyanga Village in Mtwara to the appellant while such property does not exist. 6. The Trial Magistrate erred in law and fact when she failed to answer the 4'^ Issue framed on whether the respondent herein contributed to the acquisition of the assets. 7. The Trial Magistrate erred in law and In fact in the distribution of the Four Acres Cashew farm located in Mtwara without considering that the Farm was acquired by the appellant even before he married the respondent. 8. The Trial Magistrate erred in law and fact when she ordered that all the four children be under the custody of their mother without asking Abdul said Mchalama of his wishes. 6 I Page 9. The Trial Magistrate erred in law and in facts when she ordered the appellant to pay THz 50,000 per month for the maintenance of each child without considering his financial status; 10. The Trial Magistrate erred in law and fact when she gave the house located at Mangu'la to the respondent herein while allocating him with the non-existing house in Mtwara. The appeal was argued by written submissions. Both parties were enjoying the legal representations, while the appellant was enjoying the services of Advocate Adnan Abdallah Chitale, the respondent was receiving the services of Advocate Michael Michael Chami. I carefully read and considered the submissions filed by the Counsels, I also thoroughly read and considered the proceedings and the evidence of the parties produced before the Trial Court. I shall consider the grounds of appeal in the reduced five issues: 1. Whether it was necessary for the Trial Magistrate to determine an issue of whether the couple were married under the Islamic rituals while that Issue was not disputed; 71 Page 1 '' f 2. Whether the marriage between the parties had irreparabiy broken down; 3. Whether the distribution of Matrimoniai Assets between the Parties was in accordance with the iaw; 4. Whether the Triai Magistrate considered the Welfare of the Children in granting the absolute right of custody of ail the four children to the respondent; 5. Whether the Triai Magistrate took into account the financial ability of the appellant to maintain the Four children by paying THz 50,000 per month for each child. Regarding the first issue, I am aware that this issue was never raised by the appellant as the grounds of appeal but since the Judgement is not clear on the status of the parties herein regarding their marriage, I felt the need to determine their status before tackling the issue of division of matrimoniai assets and custody and maintenance of the children, as it is trite that the parties who fails to establish that they were married or they lived under the rebuttabie presumption of marriage, the court cannot assume powers to issue a decree of divorce and divide the assets or determine an issue of maintenance and custody of their children. 8I Page The Petitioner/respondent pleaded In her petition that she was married in the year 2006 under the Islamic rituals, and that 15 years later the marriage went sour. They tried to reconcile in the family level but It did not work, they later referred the dispute to BAKWATA and it failed. The appellant herein who was the respondent at trial never disputed the fact that they were married with the petitioner under the Islamic rituals and that they tried to reconcile their differences at the family level, then through BAKWATA, but the efforts did not bear any fruits. Therefore, the issue whether the parties herein were married under the Islamic rituals was not a disputed questions of fact which required evidence. The appellant never disputed the petitioner's averments that he married her under the Islamic ritual. In fact, this fact was not only undisputed question of fact but also it was a fact averred by the petitioner and admitted by the appellant herein. Again, the issue whether the marriage was irreparably broken down was also not undisputed fact, although the law requires that an issue whether the marriage has irreparably broken down must be determined to the satisfaction of the court, as stated in section 99 and 107 of the Law of Marriage Act, reproduced and referred herein above. However, the 9I Page Magistrate ought to have taken Into consideration that the Certificate issued by BAKWATA for failure to reconcile the parties is valid, and BAKWATA are authorized under Section 107 (3) of the Law of Marriage Act, to dissolve the marriage in accordance with the Islamic law, the court shall make a finding that the marriage has irreparabiy broken down and proceed to grant a decree of divorce. This section reads: Section 107 (3) Where it is proved to the satisfaction of the court that— (a) the parties were married in Isiamic form; (b) a Board has certified that it has faiied to reconcile the parties; and (c) subsequent to the granting by the Board of a certificate that it has failed to reconcile the parties, either of them has done any act or thing which would, but for the provisions of this Act, have dissolved the marriage in accordance with the Isiamic law, the court shall make a finding that the marriage has irreparably broken down and proceed to grant a decree of divorce. 10 I Page The issue of whether the parties herein were married under the Isiamic Rituais was averred by the Petitioner in her the Petition, and admitted by the appeiiant herein, and thus, the court shouid not have wasted its precious time in deciding issues which were agreed by the parties and which were not disputed and admitted. The Court could even enter a judgement on admission on those issues which were admitted by the respondent. Only disputed questions of fact are required to be adjudicated by the Court on the basis of the evidence led by the parties. Based on the above, therefore, the decision of the Trial Court which ruled that the parties herein were not married under the Isiamic Ritual is hereby set aside, and this Court declares that the Marriage between the Petitioner Mwajuma Mkodo Hussen and the Respondent/appellant Said Seiemani Mchaiama was a valid marriage celebrated under the Isiamic Rituais. The second issue whether the marriage had irreparably broken down, this also was not a disputed question of fact. This issue was averred by the petitioner in her petition and admitted by the respondent/appellant in his Reply to the Petition. However, as stated herein above, the Magistrate is required to get evidence from both parties to her satisfaction. 11 I P a g e In the instant case, the parties herein accused each other of aduitery, crueity, witchcraft and desertion. They both said that they tried to reconciie through their parents and famiiy and iater through BAKWATA at Mang'uia, but the efforts proved futiie, hence BAKWATA issued a Certificate proving that parties herein faiied to reconcile, and their marriage had irreparably broken down. The Certificate issued by BAKWATA was attached to the pleadings as an annexure and admitted in Court as exhibit Pll. BAKWATA being a Religious body for reconciliation of Islamic marriages cannot entertain any other kind of marriage except those married under the Islamic rituals. BAKWATA has been given the powers to reconcile Islamic couples under Section 101 of the Law of Marriage Act. The provision provides as follows; 101. Requirement of prior reference to Board. No person shall petition for divorce unless he or she has first referred the matrimonial dispute or matter to a Board and the Board has certified that it has faiied to reconciie the parties: Provided that, this requirement shall not apply in any case— 12 I P a g e (a) where the petitioner alieges that he or she has been deserted by, and does not know the whereabouts of, his or her spouse; (b) where the respondent is residing outside Tanzania and it is uniikely that he or she will enter the jurisdiction within the six months next ensuing after the date of the petition; (c) where the respondent has been required to appear before the Board and has wilfully failed to attend; (d) where the respondent is imprisoned for life or for a term of at least five years or is detained under the Preventive Detention Act and has been so detained for a period exceeding six months; (e) where the petitioner alleges that the respondent is suffering from an incurable mental illness; (f) where the court is satisfied that there are extraordinary circumstances which make reference to the Board impracticable. The Trial Magistrate was prohibited to entertain the petition for divorce until the matrimonial dispute was referred to the Reconciliatory Board, and the Board has certified that it has failed to reconcile the parties. If 13 I P a g e the holding of the Trial Magistrate is left to stand, it means that the parties wrongly referred the matrimonial dispute to BAKWATA as BAKWATA cannot reconcile any other kind of marriage but Islamic Marriages only, and thus the Court would not have had jurisdiction to entertain the petition and issues the orders thereto. On the contrary, I hold that the marriage between the parties was an Islamic marriage celebrated under the Islamic rituals, and that BAKWATA was a competent Board to reconcile the parties, and rightly issued a Certificate of failure to reconcile the parties herein. Again, parties had the right to petition for divorce and they were permitted under Section 99 of the Law of Marriage Act, which provides: Section 99: Right to petition for separation or divorce Subject to the provisions of sections 77,100 and 101. any married person may petition the court for a decree of separation or divorce on the ground that his or her marriage has broken down but no decree of divorce shall be granted unless the court is satisfied that the breakdown is irreparable. 14 I P a g e Since the Trial Court's Magistrate was satisfied that the marriage (not union) of the parties has irreparably broken down, and since BAKWATA had already dissolved the marriage under the Islamic laws, it was proper to issue the decree of divorce for annulment of the marriage. Now coming to issue number three, which was a disputed question of fact, I shall first give the principles governing the distribution of matrimonial assets as provided under the Law of Marriage Act. The most tasking part in the matrimonial proceedings is determination of distribution of matrimonial assets acquired during the subsistence of the marriage and the amount and extent of contribution of a spouse in the acquisition of the matrimonial property. I understand that there is no formula given as to how much contribution is considered to be a certain percentage of contribution in the acquisition of the matrimonial property but in the case of Bi Hawa Mohamed vs Ally Sefu Civil Appeal No 9 of 1983 fl983^ TZCA 12. the Court of Appeal gave guidelines on how to distribute the matrimonial assets to spouses. The Court of Appeal while referring to Section 114 of the Law of Marriage Act had this to say: 15 I P a g e "The power of the Court to divide matrimonial assets is derived from section 114(1) of the Law of Marriage Act, 1971 which states: 114(l).The court shaii have power, when granting or subsequent to the grant of a decree of separation or divorce, to order the division between the parties of any 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." The Court of Appeal said the assets to be distributed after a grant of a decree of divorce are the Matrimonial Assets, the Court of Appeal said; "It is apparent from the citation and the wording of section 114 that the assets envisaged thereat must firstly be matrimonial assets, and secondly, they must have been acquired by them during the marriage by their joint efforts. Therefore, the Court is duty bound to determine whether the assets exists, and secondly whether the assets are the Matrimonial assets, and thirdly what was the contribution of the spouses in the acquisition of the matrimonial assets. As to what constitutes a matrimonial asset, the Court of Appeal in 16 I P a g e the Bi Hawa Mohamed (supra) referred to Laws of England which had defined a matrimonial asset to mean the family asset, and they said: first important point of law for consideration in this case is what constitutes matrimonial assets for purposes of section 114. In our considered view, the term "matrimonial assets" means the same thing as what is otherwise described as 'family assets'. Under paragraph 1064 of Lord Hailsham's Halsbury's Laws of England 4th Edition, p.491. The phrase "family assets" has been described as a convenient way of expressing an important concept; it refers to those things which are acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. The family assets can be divided into two parts (1) those which are of a capital nature, such as the matrimonial home and the furniture in it(2) those which are of a revenue producing nature such as the earning power of husband and wife." For a useful determination of distribution of matrimonial assets in matrimonial litigation, the assets must be disclosed, and be proved that they exist. The parties are required to disclose the particulars of the Immovable 17 I P a g e df' properties, houses and bank accounts; movable assets including motor vehicles, jewellery etc. They are also required to disclose their expenditure on housing, household expenditure, maintenance of dependents, transport, medical expenditure. Insurance, entertainment, holiday and vacations, litigation expenses, discharge of liabilities etc. When a party to matrimonial proceedings has listed a number of assets, and upon completion of the pleadings In the petition, the Court may fix the date for reconciliation and direct the proof of existence of the listed assets, and If a party, say a wife cannot provide proof, the Court may order the husband to file an affidavit to state whether the assets listed by the wife exists, the court may order the parties to file the affidavits of their assets. Income and expenditure. The affidavit of a party for proof of existence of the assets or disclosure of the assets must be accompanied with all the relevant documents for proof of the existence of the assets, say, title deeds, registration cards of vehicles, proof of bank accounts etc. If the party does not truly disclose all his assets and Income In the affidavit, the opposite party Is at liberty to serve the Interrogatories under Order XI of the Civil Procedure Code [Cap 33 R.E 2022] herein referred as the Civil Procedure Code and/or seek production of relevant documents from the 18 I Page ® party filing the affidavit. In appropriate cases. Court may order interrogatories, discovery, inspection, production of any document and/or order any fact to be proved by affidavit under Order XIX (1) of the Civil Procedure Code. After the Court Is satisfied that the listed property exists, income and expenditure by both the parties have been disclosed to the satisfaction of the court, it may now proceed to determine whether the assets are matrimonial assets, and the extent of contribution of the acquisition of the assets by each party In order to divide them equally and fairly between the parties. If the Court thinks that a spouse cannot afford the legal representation but for effective determination of a matrimonial dispute, legal aid is needed, the court may apply the provisions of the Legal Aid Act [Cap 21 R.E 2019] to assist a party to get pro-bono legal representation. It must order so under the Legal Aid Act, and the Counsel so appointed to provide legal aid services to the party, shall assist a party to make sure that the procedure for disclosure of assets by affidavits and interrogatories and discoveries as expounded herein above are done. The Court also may employ the provisions 19 I P a g e of section 90 of the Law of Marriage Act to order for security for costs of iitigation. This section provides as foiiows: 90. Costs in Matrimoniai proceedings (1) Costs in matrimonial proceedings shaii be in the discretion of the court: Provided that, a woman shall not be ordered to pay the costs of her husband or former husband unless the court is satisfied that she has sufficient means of her own to make such an order reasonable. (2) At any stage of a matrimoniai proceeding, the court may, in its discretion, order a man to furnish security for the payment of the costs in that proceeding of his wife or former wife. The affidavit of assets, income and expenditure also can be useful tool to determine the true financial capacity/status of the parties. The Courts are at liberty to determine the nature and extent of information/documents necessary and to direct the parties to disclose relevant information and documents to determine their financial capacity/status. 20 I Page 4 4* Then the court shall have to determine which assets are failing under the definition of matrimonial assets or family assets. The guidelines for determining whether the assets are matrimonial assets are given in the Bi Hawa Mohamed Casefsuora"). it is those assets acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole, (emphasis mine). In considering this aspect, the court should be mindful of the provisions of Section 58 of the Law of Marriage Act which entities a spouse to have exclusive separate ownership of property and to acquire property exclusively for his own and that marriage cannot operate to change the ownership of any property. Section 58 of the Act provides: S. 58 Separate property of husband and wife "Subject to the provisions of section 59 and to any agreement to the contrary that the parties may make, a marriage shall not operate to change the ownership of any property to which either the husband or 21 I P a g e the wife may be entitled or to prevent either the husband or the wife from acquiring, holding and disposing of any property. In deciding division of the matrimonial property, the yard stick is given under Section 114(2) of the Law of Marriage Act and regard must be given to the custom of the community to which the parties belong, the extent of contribution made by each party in money, property or work towards acquisition of the property, and the time of acquisition of the property. If the property was acquired before the marriage, then subsection 3 of Section 114 of the Law of Marriage Act would come into play and a party who is not the owner of the property will have to prove by tangible evidence that the property was substantially improved during the marriage by the other party or by their joint efforts. Section 114(2) and (3) of the Law of Marriage Act, provides; Section 114 (2). In exercising the power conferred by subsection (1), the court shall have regard- (a) to the customs of the community to which the parties belong; 22 I P a g e (b) to the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (c) to any debts owing by either party which were contracted for their joint benefit; and (d) to the needs of the infant children, if any, of the marriage, and subject to those considerations, shall incline towards equality of division. (3) For the purposes of this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantiaily improved during the marriage by the other party or by their joint efforts. It is therefore of paramount importance to give evidence of the spouses' contribution towards the acquisition of the assets. If the party says he or she has contributed by giving cash, she or he is required to prove that he has given the cash towards the acquisition of the property, if her or his contribution is the property, she or he must give proof on how the property was used to acquire the assets or to improve the existing assets. 23 I P a g e Contributions towards the acquisition of a matrimoniai home, a home in which the coupie and their chiidren resides or used to reside and cali it their home, then proof of house chores is proof of contribution towards the acquisition of that home, as stated in the case of Bi Hawa Mohamed (supra). Rest of the assets which are not matrimonial home, a party who does not own it must prove with cogent evidence that he or she has contributed towards its acquisition, and that assets was acquired by one or other or both of the parties, with the intention that there should be continuing provision for them and their chiidren during their joint lives, and used for the benefit of the family as a whole. That said, regarding the division of assets, since the factors for determination of the existence of the assets, and factors for determining whether the assets are matrimoniai assets were not clear, and not reflected in the proceedings and judgement of the trial court, I remit this case to the Trial Court for determination of the existence of a house located in Mtwara, and a Four- acre cashew farm located in Mtwara. Ifthere is proof that these two properties exist, the next issue is to determine whether they are the properties of the appellant acquired before the marriage, and if yes, whether these properties were improved by the parties herein during the subsistence 24 I P a g e of the marriage, and whether there was proof of contributions of their improvement by the respondent/petitioner; The Trial Court also shall determine whether the house located in Mang'ula Ifakara exists, and its value, and whether this property is the residential matrimonial home in which the parties herein and their children were residing to constitute a matrimonial home. If It is the matrimonial home,then the contribution of each party towards its acquisition and improvements must be assessed as well the needs of the accommodation of the four children of the marriage, and the court shall be required to make a fair division of this property, after considering the factors enumerated in the Bi Hawa Mohamed Case as well the requirements of Section 114 (2) of the Law of Marriage Act. The Court also shall need to determine whether the three plots located at Mang'ula Ifakara and a farm measuring 1 Va acre located at Mangu'la are matrimonial properties, if yes, what was the contribution of the respondent towards their acquisition, hence dividing them fairly between the parties; 25 I P a g e The Court shall be required to get proof from the parties on whether the two bicycles, 18 iron sheets, one box of tiles, 3 boxes of tiles for scatting are also the matrimonial properties. The order regarding THz 800,000 which was admitted by the respondent/petitioner be used as debt owed by her to the appellant, and can be used to reduce her share in the distribution of the matrimonial assets. The retrial on the above issues be done by a different Magistrate to avoid the claim of biasness. As for maintenance of a spouse and children, and as provided in section 63 and 116 of the Law of Marriage Act, there is a duty of a well-earned spouse to maintain the other non-earned spouse during and after the dissolution of marriage. While considering the claim for permanent alimony and maintenance of either spouse, the Respondent's own income and other property, and the income and other property of the applicant are ail relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the 26 I P a g e C amount of maintenance. It has to be in the nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonabie expenses for his own maintenance and others whom he is obiiged to maintain under the iaw and statute. The courts aiso have to take note of the fact that the amount of maintenance fixed for the wife shouid be such as she can iive in reasonabie comfort considering her status and mode of iife she was used to iive when she iived with her husband. At the same time, the amount so fixed cannot be excessive or affect the iiving condition of the other party. These are ali the broad principies courts have to keep in mind whiie determining maintenance or permanent aiimony. Based on the above, the amount of THz 50,000 per month for each child is considered to be fair and reasonable considering the fact that the appellant earns more than the respondent as pleaded, and aiso considering the fact that the custody of all four children have been placed in the custody of the respondent/wife. Thus, the order of maintenance of the wife and children remains undisturbed, and the order to take care of the children school needs aiso remains undisturbed. 27 I P a g e As for the custody of the children, since the procedure of assessing their place of abode was completely followed, and since the regard was on the welfare of the children, the order made by the Trial Court on the custody of the children remains undisturbed, save that, the appellant herein is entitled to the right of visitation during weekends and school holidays. Consequently, the appeal is partly allowed, as follows: 1. The parties herein were legally married and celebrated their marriage under Islamic rituals; 2. The Court is satisfied that the marriage has irreparably broken down, and the decree of divorce is hereby confirmed; 3. The file is remitted to the Trial court for re-determination of the following issues by a different Magistrate: i. determination of the existence of a house located in Mtwara, and a Four-acre cashew farm located in Mtwara. Ifthere is proof that these two properties exist, the next issue is to determine whether they are the properties of the appellant/husband acquired before the marriage, and if yes, whether these properties were improved by the parties herein during the subsistence of the marriage, and 28 1 P a g e «.! • » > whether there was proof of contributions of their improvement by the respondent/petitioner; 11. The Triai Court aiso shaii determine whether the house iocated in Mang'uia Ifakara exists, and its vaiue, and whether this property is the residentiai matrimoniai home in which the parties herein and their chiidren were residing to constitute a matrimoniai home. If it is the matrimoniai home, then the contribution of each party towards its acquisition and improvements must be assessed as weii the needs of the accommodation of the four chiidren of the marriage, and the court shaii be required to make a fair division of this property, after considering the factors enumerated in the Bi Hawa Mohamed Case as weil the requirements of Section 114(2) of the Law of Marriage Act. iii. The Court aiso shaii need to determine whether the three piots located at Mang'uia Ifakara and a farm measuring 1 V4 acre iocated at Mangu'la are matrimoniai properties, if yes, what was the contribution of the respondent/petitioner towards their acquisition, and fair distribution of these assets to the parties, if they are found to be the matrimoniai assets; 29 I P a g e iv. The Court shall be required to get proof from the parties on whether the two bicycles, 18 iron sheets, one box of tiles, 3 boxes of tiles for scatting are also the matrimonial properties, if yes, fair distribution be made. V. The order regarding THz 800,000 which was admitted by the petitioner/respondent herein be used as debt owed by her to the appellant, and can be used to reduce her share in the distribution of the matrimonial assets. 4. The order of maintenance remains undisturbed; 5. The order of custody of the four children remains undisturbed save that the appellant herein shall have the right of visitation during weekends and school holidays. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 17™ DAY OF JULY 2024 o T CS. V ^ > (LATIFA MANSOOR) JUDGE 17™ JULY 2024 30 I P a g e