OCR 5273 tanzli OM

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 5273 OF 2024 (Originating from Matrimonial Cause No. 285 of2022 in Temeke District Court at One Stop Judicial Center) SIMON RICHARD MALEMBO........................................... APPELLANT VERSUS KOKUHABWA THEMISTOCLES BYARUGABA............ RESPONDENT JUDGMENT Date of last order: 28/10/2024 Date of Judgment: 08/11/2024 OMARI, J. The Appellant, Simon Richard Malembo is aggrieved by the decision of the District Court of Temeke (One Stop Judicial Centre) in Matrimonial Cause xlo. 285 of 2022 in which he had filed a Petition for among other things a decree of divorce against Kokuhabwa Themistocles Byarugaba, the Respondent herein. He paraded the following three grounds: 1. The learned trial magistrate erred in law and in fact by failure to ana, yse and evaluate evidence tendered before it as such ended holding that matrimonial house be divided in equal share between the patties without any proof of contribution by the Respondent ((sic)). 2. That the /earned trial magistrate erroneously and without any legal justifiable cause entered into a fault decision the Appellant is obliged to pay maintenance to the tune of Tsh. 300,000/= per month without taking into consideration the Appellant income ((sic)). 3. That the trial court erroneously and without due regards to all e viden :es tendered, failed to hold that maintenance of the child is a core obligation of all parties herein ((sic)). It is on the basis of the three grounds that he is praying that his appeal be allowed, the evidence as regards maintenance of the child and division of matrimonial properties be re-evaluated. The Respondent appeared to contest the grounds of appeal. Akiza Rugemelila argued the appeal on behalf of the Appellant while Elifuraha Eliud argued on behalf of the Respondent, both a learned advocates. On the first ground of appeal Mr. Rugemalila submitted that the matrimonial house located at Chanika belongs to the Appellant, yet the trial court orde'ed for equal division of the house in dispute. He contended that the evidence on record shows that it was the Appellant who bought the land and built the house before he married the Respondent. This, according to counsel means the Respondent did not contribute anything towards the acquisition and development of the house in dispute. He explained that the trial court re ied on mere allegations of the Respondent as she never produced any evidence of her contribution or disproving evidence that the house was built between the years 2015 and 2016 a time when the two were not married. To amplify his argument counsel referred to the case of Beralia Karangirangi v. Asteria Nyalamwa, Civil Appeal No. 237 of 2017 where the Court of Appeal observed that where a party with a burden to prove fails to discharge it, then it is as if a fact has not happened. He argued that in this case it was the burden of the Respondent to prove that the house was b Jilt in 2019 and not 2015/2016 as alleged by the Appellant. Having failed to do so, the trial court reach a wrong decision. Mr. Regemalila also referred to the case of Leah Jermaiah Mlyahilu v. Lucas Mathias Kaitira, PC Matrimonial Civil Appeal No. 15 of 2019 where this court was of the view one had to prove the extent of contribution for a property to constitute matrimonial property subject to division. He explained that while the Respondent tendered exhibits that the trial court relied on none of them prove her contribution to :he acquisition of the disputed house, thus, his argument that the trial court faded to evaluate the evidence and ended up with a faulty decision. Counsel ended his submission on the first ground with a prayer that this first appellate ccurt re-evaluate the evidence and reach into a correct decision. Arguing the second and third grounds of appeal jointly, Mr. Rugemalila explained that the Appellant is principally not against maintaining his son, rather he is questioning the legality, correctness and propriety of the orde' to pay TZS 300,000 per month while being required to pay school fees, transport to and from school and medical expenses all of which account for maintenance. He argued that in doing so the trial court disregarded that the duty to maintain a child is on both parents. Counsel argued further that the Respondent's testimony in the trial court was to the effect that she was economically able to contribute to the acquisition of matrimonial property, thus, the court should divide them equally. Accord ng to him, if this is so then it should also account to maintenance of the child as well. Citing the case of Aloyce Masalu Mapembe v. Paulina Roman us Masonga, Matrimonial Appeal No. 03 of 2021 he argued that this court in a similar situation (as the case at hand) held that both parents are responsible for maintenance of the child. Moreover, it was observed that the economic status of the parties has to be taken into consideration when deciding on maintenance of children. To further augment his contention, he cited another case; Mwamoi Sheshe Matiku v. Issa Matala Nduma, Civil Appeal No. 72 of 2020. Counsel concluded his submission with a prayer that the appeal be granted. When he took the baton Mr. Eliud commenced his submission regarding the first ground of appeal stating that parties are bound by their pleadings, "he Appellant's Petition prayed for division of matrimonial house to the tune of 30% to the Respondent and the remaining 70% to him, he cannot now discwn the Petition. Counsel argued that the Appellant did not tender any document to prove the house was built in 2015/2016 and that the sale agreement that he was referring to as his evidence was not admitted into evidence, tnus cannot be relied upon as it was held in the case of Japan International Cooperation Agency (JICA) v. Khaki Complex Limited, [2006] T.L.R 243. He further argued that as per section 110(1) of the Evidence Act, Cap 11 RE 2022 the Appellant had a duty to prove that he acquired the propely alone as he alleged. According to Mr. Eliud, this was a burden that the Appellant cannot shift to the Respondent as he is trying to. Mr. Eliud submitted further that the Respondent was able to prove her contribution to the acquisition and development of the disputed house by showing that she earns an income and was sending money to the Appellant, evidence that was not controverted during trial. He concluded on this ground of appeal stating tiat the trial court correctly ordered equal division of the house in dispute as per section 114(1) of the Law of Marriage Act, Cap 29 RE 2019 (the LMA). Submitting on the remaining grounds of appeal, Mr. Eliud argued that it is in the Appellant's testimony that he was paying TZS 400,000 per moith maintenance before he instituted the matrimonial matter, so what the trial court had done was to consider the circumstances and reduce it to TZS 300,000. However, while the Appellant's counsel submitted that maintenance is a duty that vests on both parties, section 129 (1) of the LMA places such duty on the father. Counsel further submitted that the Respondent does contribute to maintenance as she lives with the child and covers meals, shelter, clothing, medical care and recreation among others. He concluded his submission by seeking this court to dismiss the appeal for it has no merit. In his rejoinder, Mr. Rugemalila pretty much reiterated the submission in chief and went on to explain that his evidence of being the sole owner of the house was a sale agreement that was objected by the Respondent during trial, therefore, there being no other proof that the plot was bought in 20 L3. According to him if this is so then there is no evidence on record to move the trial court to order equal division of the house in dispute. Having gone through counsels' submission for and against the grounds of appeal the only issue for my determination is whether the appeal has me'it and if so what is the way forward. In doing so I am mindful of the fact that the parties disagree on the division of the matrimonial house at Chanika and the order of payment of TZS 300,000 per month as child maintenance. As rightly stated by Mr. Rugemalila I am also aware that this is a first appeal, thus this court is charged with the duty to re-evaluate the evidence of the trial court and where applicable arrive at its own conclusion. This, is an established practice having roots in precedent see for example the casas of Kaimu Said v. Republic, Criminal Appeal No. 391 of 2019, Hassan Mohammed Mfaume v. Republic, (1981) T.L.R 167 Faki Said Mtanda v. Republic, Criminal Application No.249 of 2014 and Rashid Abiki Nguwa v. Ramadhan Hassan Kuteya and Another, Civil Appeal No. 421 of 2021. To live up to this principle, I went through the trial court's record and shall include my findings in the discussion that follows. Commencing with the first ground of appeal that centres on the matrimonial house at Chanika, the record depicts that the Appellant who was the Petitioner in Matrimonial Cause 285 of 2022 among other things sought for his marriage to the Respondent to be dissolved and the parties be issued with a decree of divorce. In paragraph (iii) of his prayers, the Appellant stated that he is entitled to 70% of the house in dispute while the Respondent was entitled to 30%. The said house was also referred to in paragraph 3 of the Petition wherein he stated he prays for declaratory orders inter alia distribution of matrimonial property. At the hearing four issues were framed, one among them was whether there are matrimonial properties and what the parties were entitled to. tn his testimony, the Appellant informed the court that the house was his, he bought the land in 2013 and it was built in 2015/2016 after which he moved into the said house. He had this to say: "Mke wangu hakushiriki ujenzi wakati najenga sikuwa na mawasi/iano naye. NHisema apewe asilimia 30 kama ofa tu kama kifuta jasho. Mke wangu haridhiki na ofa hiyo. Mtazamo wangu mali hizimhusu kwa sasa." In short, the Appellant was saying; his wife did not take part in the construction of the house as at the time they were not in communication. He stated that she be given 30% as an offer, some sort of a token, she was not satisfied with the offer, so in his opinion, she is not entitled to anything. When he was cross examined by the Respondent's counsel on the disputed house he replied: "Nyumba nimejenga mwenyewe. Aya ya tatu ya maombi yangu ni kama mke wangu ana maii ya uthibitisho ndio igawanywe ...NHisema apewe 30% Hi aende/ee na Maisha yake ni ofa tu..." The Appellant was saying that he built the house himself, what is in the third paragraph of the Petition intended if she (the wife) had any evidence of there being properties. He repeated that the 30% was just an oft er, meant to help her move on. When he was re-examined by his advocate, he had this to say: "... asiHmia 30 niiiandika kama ofa kwa mke wangu kupunguza mioiongo, msimamo wangu hiyo ofa imekufa kwa kuwa aHkataa" He reiterated the 30% was an offer which was meant to make things less cumbersome, since she (the Respondent) had refused, the offer was rescinded. During trial, the Appellant did not refute that he had prayed for a 70% by 30% division between the parties respectively. He just explained that he changed his mind because the same is an offer. It is trite law that the parties are bound by their pleadings. And, it is not only the parties but also the court. This has been time and time stressed by the Court of Appeal, see for example the case of Saulo Malima v. Petro Kingoni (Civil Appeal No. 154 of 2022) [2024] TZCA 436 in which the Court cited the cases of James Funke Ngwagilo v. Attorney General [2004] and Salim Said Mtomekela v. Mohamed Abdallah Mohamed, Civil Appeal No. 149 of 2019 [2023] TZCA 15) both of which provide for the same guidance. In the current appeal, the Appellant went to the trial court stating there is property, that is the house in dispute, he did state that he built by himself however he called it a matrimonial house and went on to pray for it to be divided between them at the tune of 30% for the Respondent and the remaining 70% to him, the Appellant. Albeit being adamant he meant t iat to be a token or some sort of an olive branch to his wife an "offer" that he had taken back, there is nowhere in the Petition where that is stated. He is bound by his pleadings as was the court. Since the Appellant's counsel is also faulting the analysis of the evidence that led to the court's decision of equal division, I have gone through :he record with that lens. The Respondent's evidence as regards the property in dispute was that the plot was bought by their joint efforts in 2018 and they jointly built the said house and moved into it in September of 2019. However, some improvements had been made like putting in tiles. To evidence her ability to contribute to the acquisition and development of the said property she brought to court her salary slip and some deposit s ips showing she was sending money to the Appellant, all of these ware admitted into evidence. The trial magistrate when canvassing this issue, considered the evidence of both parties and was of the view that the house in Chanika is the only matrimonial property and that the Respondent had on a balance of probabilities proved that the house was jointly acquired by the parties, thus the equal division. The Appellant's counsel is saying the evidence was not properly analysed and since the sale agreement he brought to court was not admitted then there is no evidence for the court to rely on. In my view there are two things worth mentioning, the first is that the burden of pi oof did not only lie with the Respondent, the Appellant was also charged with the burden to prove his entitlement of 70% as he had prayed for. The second thing is that the Appellant had not brought any other evidence regarding the said house. And, unlike the Respondent had no evidence towards his contribution towards the acquisition. Furthermore, the Respondent's averments towards the acquisiton, development and improvements on the property were not specifically controverted during trial. Even during cross examination, the issue was whether the bank deposit slips had any information to show what the money was for. In that regard, even if one were to assume the Responcent failed to establish her contribution, neither did the Appellant. In such circumstances the trial magistrate had no other option than order an equal division. This is supported by the provisions of section 114 (2} of the LMA. The said section lists the considerations which are needed when dividing matrimonial assets; and among them is the extent of contribution of either party and subject to those considerations a court is required to incline towards equality in division. Basing on the above explanation it is indisputable that, the issue of the contribution of in acquisition of matrimonial assets is a matter of eviderce as was stated by the Court of Appeal in the case of Gabriel Nimr)d Kurwijila v. Theresia Hassani Malongo Civil Appeal No. 102 of 2018. With reference to the of section 114 of the LMA and the case cited, I have the view that since the Appellant was in testimony only rescinding his "offer" to the Respondent the Appellant did not adduce any evidence to convince the trial court that he had a greater contribution to the acquisit on of the property to the extent that he deserved a larger percentage than the Respondent in the distribution. Therefore, the trial court consideied the extent of contribution of each party in the acquisition of the matrimonial house was equal so it ordered equal division of the same. Consequently, the first ground of appeal fails for being unmeritorious. Regarding the remaining grounds of appeal, Mr. Rugemalila was clea* it was not his client's intention to abscond maintaining his son, his is a question of being dissatisfied with the order to pay TZS 300,000 in addition to the fees, clothing and medical expenses. In his judgment the trial co jrt magistrate had this to say: "Mleta maombi anaagizwa chini ya kifungu cha 129 cha Sheria ya Ndoa kugharamia elimu ya mtoto,mavazi na matibabu. Zaidi ya hapo anaagizwa kutoa matunzo ya mtoto kwa kiwango cha TSh. 300,000 kwa mwezi. Nimezingatia kikamiiifu kazi ya mleta maombi, Askari Jeshi na kiwango anachotoa sasa kama matunzo"(Emphasis supplied) This can be loosely translated in context to mean the court has ordered the Appellant to pay for the child's education, clothing and med cal expenses in addition to TZS 300,000 per month to cater for maintenance. The trail magistrate has stated that he has considered the Appellant's job and what he was paying at the time (that is the TZS 400,000). The record depicts that during his testimony, the Appellant had this to say: "Naomba amri ya talaka, amri ya matunzo ipunguzwe kwa sasa ninaiipa 400,000/= mke wangu anatumia viongozi wangu kazini kuiazimisha maiipo haya maiipo yameanza Novemba 2022 kabia ya shauri hiii.Mshahara wangu ni 807,000/= kwa mwezi naomba amri ya kuiipa 150,000 kwa mwezimke wangu ni afisa jamii Kisarawe pia ana kipato. "(Emphasis supplied) Briefly, he said he is praying for maintenance to be at TZS 150,000 ner month as his wife also has an income. He has a salary of TZS 807,000 per month and the TZS 400,000 was being forced upon him. There was no cross examination as regards the Appellant's income or prayer to pay TZS 150,000 instead of the TZS 400,000 which he was paying or the circumstances that led to that. When the Respondent was cross examined as regards maintenance she had this to say: "Mume wangu ameamriwa na jeshi kutoa matunzo ya Tsh. 400,000/= kwa mwezi sikumbuki mshahara wake. Sijui anapoishi a/iondoka nyumbani nilienda kulalamika jeshini. Jeshi HHmpa amri arudi nyumbani na a/ikuja tukubaiiane fedha atazotoa ni makuba/iano ada ya mtoto ni 420,000/= kwa temu moja. Ada nalipa mwenyewe. Matumizi ya nyumbani ni 15,000/= kwa siku. (Emphasis supplied) The above can be contextually translated to mean, the Appellant was ordered by the army (his employer) to return home and to pay TZS 400,000 per month after the Respondent complained he had left home At the time Respondent was paying the child's school fees at TZS 420,000 a term and spending TZS 15,000 per day at home. Putting the above passages that I have referred to from the trial court's judgment, the Appellant's testimony and that of the Respondent in context and through a magnifying lens several things are clear. The first is that the Appellant was ordered to pay TZS 400,000 per month by his employer not a court. And, it is not clear what considerations were made to arrive at the said order as there is no further evidence as regards the same. Secondly, the Appellant declared that his income is TZS 807,000 per month and he was willing to pay TZS 150,000 a month as maintenance. The third thing is that the Respondent does not know the Appellant's monthly income and she did not controvert the amount he had stated during his testimony. This means one can safely say that the Appellant earns TZS 807,000 per month. Fourthly, while the Appellant was paying TZS 400,000 he was complying to his employer's order, he was not paying school fees, transport to and from school, clothing and medical expenses. The order of the trial court requires that in addition to the items mentioned the Appellant pays TZS 300,000 per month towards maintenance. Having seen the above, let me go back to the Appellant's argument which is rather simple, he has no qualms paying maintenance but he wants the child's mother to contribute. To this end Mr. Rugemalila cited the cases of Aloyce Masalu Mapembe v. Paulina Romanus Masonga(sf/prj) and Mwamoi Sheshe Matiku v. Issa Matala Nduma (supra) both of which support his argument that both parents are obliged to maintain their children. Mr. Eliud on the other hand is of the view that according to section 129(1) of the LMA that obligation is of the father. I agree with Mr. Eliud, that is a correct reading of the provisions section 129(1) of the LMA. However, the said section has to be read with its subsection (2) and with the Law of the Child Act, Cap 13 RE 2019 (the LCA). In effect, while the LMA rests the duty of maintaining children primarily on the father, the LCA vests this duty on both parents. A woman has a duty to maintain her children even if the primary duty of doing so is vested on the father according to the LMA, however the same law provides for that same duty for the mother. As alluded to earlier the LMA has to be read together with the LCA which supports that it is also the mother's duty to care for ler child, see also Denis Fabian Mulinga v. Julieth Joseph Shirima, Civil Appeal No. 01 of 2023, [2023] TZHC 1. A court should make an order for maintenance having regard to the parties means and station in life as provided for under section 44 of the LCA, see also the case of Denis Elias Nduhiye v. Lemina Wilbad, Juvenile Civil Appeal No. 1 of 2019. Moreover, section 129(2) gives a duty to a woman to contribute to the maintenance of her children if their father is unable to maintain them. Inability need not be physical, it can be financial. In this case, both parents are able to maintain the child. In that regard I allow the ground second and third grounds of appeal and order that the trial court's decision and order as regards maintenance of the child is quashed and set aside. In its place, I make the following order: 1. The Appellant shall be responsible for the child's school fees, all mandatory education related expenses and medical expenses. 2. The Respondent shall be responsible for the child's shelter, fcod, clothing, upkeep, entertainment and recreation. Consequently, the appeal is allowed only to the extent explained abcve. Due to the nature of the matter and the parties before me I make no order as to costs. Judgment delivered and dated 08th day of November, 2024 in the presence of Tony Richard Mushi who is holding brief for Akiiza Rugemalila the Appellant's advocate and Ms. Theresia Sheshe-RMA.