CIVIL APPEAL NO 149 OF 2018 SAMEER ABDULMAJID JUNEJA VS YASMIN KASSU MOHAMED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: KWARIKO. J.A., MAIGE, 3.A. And MWAMPASHI, J.A.1) CIVIL APPEAL NO. 149 OF 2018 SAMEER ABDULMAJID JUNEJA .................................... APPELLANT VERSUS YASMIN KASSU MOHAMED ................. ............. ............ RESPONDENT (Appeal from the decision of the High Court of Tanzania, Dar es salaam District Registry at Dar es Salaam ) (Kitusi J.) dated the 8st day of November, 2017 in Civil Appeal Nos. 56 and 57 of 2017 JUDGMENT OF THE COURT 16th February, 8^7* March, 2022 MAIGE, 3.A.: The appellant and the respondent were, soon before the disposal of the proceedings in Matrimonial Cause No. 45 of 2015, husband and wife having cerebrated Islamic marriage way back in 2001. On 30th October, 2015, the respondent herein petitioned at the District Court of Ilala ("the trial court") for divorce, distribution of matrimonial assets, custody and maintenance of the children. Upon trial, the trial court pronounced a judgment in favour of the respondent for divorce and further decreed as follows: l "The petitioner has to look fo r two lath m achines and take them; and should get 40% o f the value o f T867 LEZ Land cruiser . Custody o f children is given to the petitioner who sh all provide fo r a shelter and the respondent to take care o f education; m edication and300,000 Tshs per month for food." Both the appellant and respondent were aggrieved by the decision of the trial court and henceforth lodged to the High Court ("the first appellate court"), (DC) Civil Appeal No. 57 of 2017 and (DC) Civil Appeal 56 of 2017, respectively. Before hearing, the trial court consolidated the two appeals and heard them together. In her appeal, the respondent faulted the decision of the trial court for not issuing a decree for division of the matrimonial house. On the other hand, the respondent questioned the correctness of the decision of the trial court for awarding maintenance of the children at the rate of TZS 300,00.00 per month without taking into account his financial ability; for ordering custody of the children in favour of the appellant without due regard to the best interest of the children and for awarding the respondent a decree of 40% of the value of the motor vehicle in question and two machines without there being evidence in support of the claim. 2 Upon reappraisal of the evidence on the record, the first appellate court dismissed the appeal by the respondent for want of merit. Like the trial court, the first appellate court was satisfied that, the evidence on the record established in the required standard that, the said house was acquired and developed by the appellant before the marriage between the parties had been concluded. The respondent never appealed against such decision. In a similar way, the first appellate court did not see any merit on the appeal by the appellant. The same was dismissed in its entirety. As regards custody of the issues, the first appellate court upheld the finding of the trial court on further account that, both the two issues of the marriage being female, it was in the interest of justice to be in the custody of their mother. It also confirmed the order of maintenance at the rate of Tshs 300,000.00 per month as fair and reasonable. The first appellate court did not as well agree with the appellant that, his income per month was TZS 150,000.00. It would appear that, the first appellate court overlooked the issue as to distribution of the motor vehicle and two lath machines raised in the last two grounds of appeal. The appellant is still unhappy with the decision. By this appeal, he is faulting the concurrent findings of the tower courts on five accounts. One, for awarding the respondent maintenance of the issues of the marriage at the rate of TZS 300,000.00 in disregard of the facts on record that the appellant's income was TZS 150,000,00 per month. Two, for awarding the respondent maintenance of the issues of the marriage at the rate of TZS 300,000.00 in disregard of the appellant's financial ability. Three, in pressing custody of the issues to the respondent without considering the best wishes of the children. Four, in blessing the order for division of the proceeds of the motor vehicle No. T867 LG2/LEZ LL2 without satisfying itself that it was in existence. Five, in awarding the appellant possession of machines without there being any evidence of their existence. At the hearing of the appeal, the appellant appeared in person unrepresented, whilst Mr. Alex Mgongolwa, leaned advocate, represented the respondent. When they were invited to present their oral arguments, both the appellant and advocate Mgongolwa fully adopted their written submissions filed under rule 106 of the Court of Appeal Rules, 2009 ("the Rules") to form part of their arguments. We have appraised the rival submissions in line with the judgments of both the trial court and the first appellate court and it is desirable to determine the substance of the appeal. We shall start our deliberation with the first and second grounds as to the correctness and validity of the grant of maintenance at the rate of TZS 300,000,00 per month. In his submission, the appellant has questioned the correctness of this finding in two respects. First, the amount of the maintenance of the issues was neither pleaded nor specifically prayed for. In the view of the appellant, it was wrong for the trial court to award it under the item " any other relief". In the second place, it was his submission that, the amount awarded did not correspond with his income and has no any evidential justification. He invited the Court to consider the evidence on record that, his monthly salary was as little as TZS 150,000.00. Submitting in rebuttal, Mr. Mgongolwa while admitting that the amount of maintenance was not expressly pleaded, it was his submission that, the same was correctly awarded under the prayer "any other relief" as the same was in the circumstance of the case necessary for the survival of the children. He did not agree with the 5 appellant that he was financially unable to pay the awarded amount because aside from monthly salary, the evidence on the record establishes that the appellant was collecting rent from tenants in the house that was in dispute. On top of that, it was Mr. Mgongolwa's submission that, since the obligation to maintain issues of marriage regardless of where they reside is on the father, the appellant cannot escape from such liability. 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 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 6 thus ancillary or consequential relief in any proceedings for divorce or separation. Under section 7(2) of the Civil Procedure, [Cap. 33 R.E. 2019 ("the Code") therefore, such relief being merely consequential can be granted even if it is not pleaded. The provision provides as follows: "(2) No su it sh all be open to objection on the ground that a m erely declaratory judgm ent or order is sought th ereb yan d a court may make binding declarations o f right whether o r not the consequential re lie f is or could be claim ed." Like the High Court, we do not agree with the appellant that his only source of income is his monthly salary. The reason being that, there is evidence on the record that, the house which used to be a matrimonial home is rented out and the appellant is earning monies in terms of rent. That aside, the appellant being the father of the two issues, is obliged in law to maintain them by providing food, shelter and other needs and wants regardless of whether they are under his custody or the custody of their mother. The first and second grounds of appeal are thus baseless and it is dismissed. We now pass to the third ground on the custody of the issues of the marriage. In his submissions, the appellant blamed the first 7 appellate court in upholding the decision of the trial court granting custody of the children to the respondent while according to her own evidence on the record, she had nowhere to stay and could not afford her daily subsistence including proper shelter. In his view, the trial court ought to have made an inquiry to ascertain if it was not dangerous for the custody of the children to be placed to the respondent. He placed reliance on section 125(2) of the Act. In his judgment, the High Court Judge found that the two issues of marriage being female, it was in their best interest to stay with their mother. We entirely agree with him. The position of the law as set out by section 125 of the Act is that, the paramount consideration in granting custody is the best interest of the child. See, for instance, Halima Yusuf v. Restituta Celestine Kilala [1980] TLR 76. We think, where the best interest of the child lies as between the father and the mother, is a question of fact which can be determined according to the facts of the case. In this case, the trial court having considered the evidence on the record, was satisfied that, it was in the best interest of the children to stay with their mother. On appeal, the first appellate court having reappraised the evidence joined hand with the trial court that, the two children being female, they are better 8 placed with their mother. The position of law on second appeal like this was clearly stated in Jimmy Zacharia v. Republic, Criminal Appeal No. 69 of 2006 (unreported) where it was stated; "The practice is that in second appeal, the Court rarefy interferes with the concurrent findings o f fact by the courts below. It is only when there is m is directions or non-directions on the evidence by the first appellate court that the Court can interfere" This being a pure point of fact and there being neither misdirection nor non-direction on evidence or point of law, we see no reason to depart from this concurrent factual finding of the two lower courts. Indeed, we agree with them that, under the circumstance of this case it is the best interest of these two young girls to stay with their mother. We thus dismiss the third ground of appeal. We shall now wind up our judgment with the fourth and fifth grounds of appeal as to the award of the value of the motor vehicle and two machines. The appellant submitted that they should not have been granted because there was no evidence on the record to support the same. On the fourth ground, we have noted, Mr. Mgongolwa did not have any substantive comments apart from sticking on the erroneous description of the motor vehicle. As the description of the motor vehicle in the pleadings, evidence and judgments of both the trial court and the first appellant court was consistent, we do not think that, an incorrect description of the same in submissions or ground of appeal can affect the substantial validity of the ground of appeal. On the fifth ground, it was his submission that, since at the trial court the appellant claimed that the machine does not exist and that if it does, the respondent should take it absolutely, there is no reason why he should challenge the finding. We have examined the record in line with the rival submissions on this point. As we noted above, these issues escaped the mind of the first appellate court. They were not determined. In his submissions, the appellant blamed the first appellate court in not determining the same. We agree with him that it was an error for the first appellate court not to address the same. In the circumstance of this case, we think it is appropriate to make use of our powers under section 4(2) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] and step into the shoes of the first appellate court and address the issues. The existence of the motor vehicle and its registration number was pleaded at paragraph 12 (c) of the petition where the appellant stated that, the motor vehicle in dispute was bought after the other 10 two motor vehicles had been sold. She did not state how much was it bought and when was it. Neither did she state when the other motor vehicles were bought and sold. As regards the two machines, the respondent pleaded, at paragraph 15 of the petition that, "the Petitioner and the respondent managed to possess Leth machines which are used to make bolts and nuts". In her evidence in address of these issues appearing at page 239 of the record, the respondent just testified as follows: " We got three vehicles; (1) TZSM 9249 Mark II (2) Corolla (3) T.867 LEZ Land cruiser we bought two lath m achines and opened two shop fram es in the said house". We agree with the appellant that, the fact in both the pleadings and evidence was not sufficient to assist the trial court to establish existence of the motor vehicle in question and the two machines. On that, it was a misdirection on the part of the trial court to determine an issue in the absence of fact and evidence to support its existence. The fourth and fifth grounds of appeal have thus merit and they are allowed. In the final result, the appeal partly succeeds to the extent of the fourth and fifth grounds and fails to the extent of the first, second and third grounds. We accordingly vary the judgment of the first appellate court so that the appellant's appeal thereat is dismissed to the extent of the 1st, 2nd and 3rd grounds and allowed to the extent of the 4th and 5th grounds. The awards of 40% value of the motor vehicle and possession of the two machines are quashed and set aside. In the circumstance, no order as to costs is made. DATED at DAR ES SALAAM this 3rd day of March, 2022. M. A. KWARIKO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL The Judgment delivered this 7th day of March, 2022 in the presence of the appellant in person unrepresented and in the absence of Mr. Alex Mgongolwa, counsel for the respondent though duly notified is hereby certified true copy of the original. | ^ A. L. KALEGEYA " 9 DEPUTY REGISTRAR ; si COURT OF APPEAL 12