WILSON FATAEL

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CIVIL APPEAL NO. 6 OF 2023 (Originating from Matrimonial cause No. 12 o f2021 o f Dodoma District Court) WILSON FATAEL SAM ................................................................. APPELLANT VERSUS ASIFIWE ARON M L O L Y ............................................................. RESPONDENT JUDGMENT 15th November, 2024. HASSAN, J.: The appellant Wilson Fatael Sam appeared before the court pained by the decision of the District Court of Dodoma in the Matrimonial Cause No. 12 of 2021. Looking for redress, he is now before this court lodging an appeal. The appellant preferred sixteen (16) grounds of appeal for resoluteness, thus: 1. That, the Honourable District Court erred in law and in fact in deciding that the Appellant also contributed the breakdown o f the marriage between the parties against the evidence. l 2. That, the Honourable District Court Magistrate erred in taw and in fact in dividing the allegedjoint matrimonial properties against the law. 3. That, the Honourable District Court misdirected itself in not considering the reason adduced by the Appellant for registering the name o f the Respondent to the joint acquired landed properties. 4. That\ Honourable District Court erred in law and in fact in not considering the money the Respondent withdrew from the bank account in deciding the extent of contributions to thejoint assets. 5. That\ the Honourable District Court erred in law and in fact in ordering the division o f the joint assets which was unfair to the Appellant. 6. That, the Honourable Resident Magistrate for the District Court misdirected herself in deciding that the properties at Plot No. 18 Block C Kikuyu South and Plot No. 61 Block D Ilazo Extension both within Dodoma City were not a joint asset 2 7. That, the Honourable District Court erred in iaw and in fact in including the house at Mnadani in the division o f the joint assets whereas it was neither pleaded nor claimed asjoint asset 8. That, the Honourable District Court misdirected itself in deciding that, the Appellant had minimal contributions to the acquisition o f the joint assets meanwhile deciding that, the same Appellant has business to maintain the issues. 9. That, the Honourable District Court erred in law and in fact in not considering that the evidence that, the gift o f Plot No. 18 Block C Kikuyu South, Dodoma City was given to the Appellant and only directed to use the name o f the Respondent due to have other issues not born by the Respondent. 10. That, Honourable District Court erred in iaw and in fact, in admitting and believing Exhibit A8 (the alleged inheritance and sale o f house at Mbeya documents) which were against the iaw and unfounded. 11. That, the Honourable Resident Magistrate for Dodoma District was biased in using the alleged agreement between the Appellant and the Respondent to operate only for the alleged personal properties and against the Appellant. 3 12. That\ the Honourable District Court erred in iaw and in fact in distributing the house at Makulu for 70% and 30% between the Respondent and Appellant, respectively against the evidence. 13. That, the Honourable District Court erred in law and in fact in ordering the custody o f children to the Respondent who has admitted to have started relation with another man. 14. That, the Honourable District Court erred in iaw and in fact in ordering maintenance of each issue o f the marriage at the tune of Tshs. 200,000/= per month without justification and without considering the time when the issues are at boarding school. 15. That, the Honourable District Court was biased in accepting all the evidence o f the Respondent whereas disregarding and/or not considering the evidence o f the Appellant in it's entirely. 16. That, the Honourable District Court erred in law and in fact in entertaining and hearing the petition against the law. When the appeal came for hearing, the appellant was represented by Ms. Catherine Wambura, learned advocate while the respondent was represented by Mr. Fredy Kalonga, also learned advocate. Parties prayed to proceed by way of written submissions, and timely, they complied to the order of preference in filing their written submissions. 4 In her written submission, the appellant's learned counsel sequentially submitted the grounds of appeal by faulting the decision of the trial court. Arguing on the first ground of appeal, he submitted that the trial court faulted the decision due to the following reasons thus: Firstly, that the Appellant has contributed to the breakdown of their marriage by denying the Respondent conjugal right and being in relation with another woman, namely one Scholastica Lyimo. And that, addressing this issue the trial court relied on the evidence that, the Appellant was living at area C with another family, an issue not pleaded in the petition for divorce lodged by the Respondent herein. Evidently, in the paragraph five (v) of the petition, the Respondent has just alleged that the appellant has lost his love and passion to the Respondent. Also, the appellant submitted further that, in the pleading there was no any allegation for the Appellant to perpetrate marital relation with the alleged former wife. Although, in the pleading, it was clear that the said lady is named as "form er w ife" but, in the evidence, the Respondent tried to regard this lady as the lawful wife of the Appellant. And further, in her testimony, the respondent has alleged that their marriage with the appellant should to be void since she denied conjugal right to the Appellant. 5 Secondly, the appellant's counsel argued that it was unjustifiable for the trial court to rely on the loan facility agreement (exhibit Dl) of 2014, as an indication that, the Appellant had another relation and the said relation contributed to the breakdown of the marriage between the parties herein. Thirdly, the trial magistrate completely disregarded the fact envisaged in the exhibit A4, which indicates that the disputes between the parties was due to wealth desire and violence. On this point he argued that there were no any allegations of desertion; there was no any threats of the alleged former wife; neither was there any allegations of irresponsibility of the Appellant as the source of dispute. The learned counsel contended that if the respondent was right in the testimony that the appellant's unacceptable behaviour was habitual for a long time, why she did not list in the exhibit A4. Fourthly, that the Respondent had her own illicit relation against her marriage with the Appellant. He further argued that even the respondent has admitted to have extra marital relation with another man and has an issue out of infidelity. In the circumstance, learned advocate questioned the founding of the trial that the appellant had the relationship with another woman, and thus, the respondent out of revenge created new relationship with another man. He therefore contended that there was no evidence in support this contention. He thus, suggested that the trial court should have seen the respondent is a cause of their marriage breakdown because of the desertion of the matrimonial home, and creation of the extra marital relations which led of having a child out of wedlock. Adding that the fact that the appellant was living at area C with another family was not pleaded. In the end, learned counsel requested the court to allow the first ground of appeal. Reflecting on the third grounds of appeal, the appellant's counsel attacked the trial court for relying on Section 60 (a) of the Law of Marriage Act, Cap. 29 R. E. 2019 to gauge the ownership on the bases of the names registered in the properties. The learned counsel contention is that the trial court had erred for not accepting the reason fronted by the appellant that, he used the respondent names in the registration of the properties that were acquired together because he was worried of the respondent that, since the appellant had other children, his children with the respondent will lose their rights in the future. Learned counsel stood firm that this evidence was not rebutted, hence, the trial court has not accorded it with any weight. Consequently, he prayed this ground be allowed. 7 Moving forward, the appellant's counsel then argued grounds number 2, 4, 5, 6, 7, 8, 9, 10 and 12 altogether, for them, it all touches one issue as to the propriate of the division of the alleged joint assets. Primarily, he started by acknowledging that the principles for division of matrimonial assets are envisaged under section 114 of the Law of Marriage Act, Cap. 29 R.E. 2019 of which provides: Therefore, arguing on this point he contended that the trial court did not abide with the law in dividing the assets of the parties herein. He thus reasoned out as follow: Firstly, the trial court wrongly distributed the house at Mnadani (exhibit Dl) to the Appellant as his division since this house was neither pleaded nor was it claimed to be matrimonial property. He argued that the said house has just be mentioned during cross examination by DW1, where it was pointed out that, the house was built in 2006. And thus, it is his own individual property, and it was not pleaded. Secondly, learned counsel protested the trial court's decision for completely disregarding the evidence that the Respondent was given access to withdraw money from the Appellant's bank account at Equity Bank (see Exhibit D5). And that, the bank statement (Exhibit D3) shows how the Respondent has withdrawn a lot of money from the said account, 8 that fact which has been admitted by the respondent that she had withdrawn from the account more than 77S. 50,000,000/=. Thirdly, Mr. Mchibia has further erred the trial court in deciding that, the house at Plot No. 18 Block C Kikuyu South within Dodoma City was not a joint asset. He argued that the trial court failed to give weight on the evidence that the appellant, and the respondent had agreed to register the property with the respondent's names because of their children, and that fact has not been disproved. Furthermore, he contended that the trial court was ill-thought-out in believing that the respondent had a muscle to build that disputed house because she sold her house exhibit A8 that she acquired through the 'Will' from his father. Learned counsel attacked the alleged "Will" to being unauthentic and therefore unbelievable since the respondent admitted that her father is still alive. He added that the said will was written 20/12/2012 and was not attested by the Commissioner of Oaths until 10/8/2020. And that, the respondent also purported to sell the house she allegedly inherited on 10/11/2017, while the alleged will had not been attested by the advocate, and the owner of the will had not died. To the contrary, he argued, that the trial court disregarded the evidence of the DW1, and DW4 who made it clear that the said property was given in advance as a wedding gift. 9 Also, in the decision the trial court dishonored the evidence that shows how the appellant built that house in the property in 2019, and the person he engaged in the construction. In his submission, he contended further that the respondent had contradictory versions on how the house was built. That, at first, she purported to use the money from inheritance to build the said house. However, in cross examination, the Respondent changed her version and alleged to have built the said house from the money she obtained in her dealings as an employee. However, he argued, despite all those circumstances, the property at Plot No. 18 Block C Kikuyu South was awarded to the respondent as her personal property by the trial court. Fourthly, with respect to the house at Plot No. 61 Block D Ilazo Extension within Dodoma City, the learned counsel censured the trial court for deciding that the said property is a personal property of the Respondent. In his submission, he vehemently argued that there was evidence of the appellant that, he paid for the purchase price of the plot in 2018 and he personally signed all the documents of the sale. However, he only inserted the name of the Respondent because the latter was worried of her other children. He therefore opposed the findings of the trial court that the property was obtained after separation. Adding that, if 10 properly examined, exhibit A7 attests the same, and he further contended that even the money which was withdrawn from his account was used to build that house. Fifth, on the house at Makulu, the respondent only alleged to have exchanged it with the appellant to his plot located at Nzuguni, but learned counsel faulted the trial court to believe on such evidence while the respondent did not describe the location, size and boundaries of the Nzuguni plot she alleged to have exchanged with the appellant. Opposing the testimony of the respondent, Mr. Machibia argued that the Appellant made it clear how he purchased the land since 2012and built the house thereof in 2012 and 2013 respectively. He further protested that the respondent only relied on documentation while, as the appellant has testified that, the decision to register her names was for the purpose of their children. In the end, learned counsel criticized the decision meted by the trial court to divide the disputed property with 30% for the appellant and 70% for the respondent. He therefore claimed that the applicant is the one who developed the property, and the respondent has not proved her contribution to the same. Learned counsel went on submitting with regards to Plot No. 208 Block C Ilazo Extension within Dodoma City. He contended that the li evidence indicated that, it was jointly owned by the Appellant and the Respondent since 2nd May 2018. That, this indicates that, the parties were cohabiting as husband and wife even before formalization of their c marriage. It negates the allegations that, the Appellant and the Respondent were not living under the same roof. He stressed that both sides testified that this land fell into dispute due to double allocation and despite the said problem to the land, the same was distributed to the Appellant. Going forward, the Appellant's learned counsel went on submitting that the farm that located at Zanka was distributed on equal shares, whereas, a house at Makulu was divided for 30% and 70% between the Appellant and the Respondent respectively. Thus, to his contentious view the division was not according to evidence, and law. To press further inn his argument, he drew inference to the case of Gabriel Nimrod Kurwijila vs. Theresia Hassan Malongo [2020] TLR 343 and Hawa Mohamed vs. Ally Sefu [1983] TLR 32. Reflecting on the decision above, learned counsel for the appellant questioned the trial court analysis of evidence, and its decision that, the division was unfair and against the evidence adduced. He insisted that apart from monitory contribution in the acquisition of all those properties, 12 the appellant had also played pivotal role in the supervision of construction, and even his money from the bank was used to develop those matrimonial assets. In the end, he prayed the court to allow this ground of appeal. To support his entreaty, he cited the case of Hawa Mohamed v. Ally Sefu [1983] TLR. 32. Marching further, the appellant's counsel argued on the 11th and 15th grounds that exhibit A4 which was alleged by the respondent to be an agreement between the parties was interpreted to operate only for personal property as against the Appellant. And that, the said agreement was not signed by the Advocate nor the Appellant. Hence, Mr. Machibia blamed the trial court of being bias in its analysis, and therefore, he prayed these grounds be allowed. Finally, the appellant's counsel merged grounds number 13 and 14, and argued them together that, the trial court erred to order the custody of their issues to the Respondent. In his view, it was not for the best interest of the children. He added that, the Respondent admitted to the court that she had relation with another man and they have a child together. Thus, in such circumstance it was wrong for the trial court to grant her custody of the issues. 13 In addition to that, learned counsel contended that, the trial court wrongly ordered contribution of the maintenance of children to the appellant in the tune of TZS 200,000/= for each child monthly, though, the trial court had no evidence of the appellant's income to attain such amount and being able to comply the court decision. Therefore, he argued that the maintenance order was vague, and wanting. He stressed that the trial court failed to consider a time when children are at boarding school. Before the end, the appellant's counsel withdrew the 16th ground of appeal, and further, prayed the Court to allow this appeal with costs. On her part, the respondent through her learned counsel replied to the 1st ground that the Appellant contributed to the breakdown of the marriage. The respondent's counsel submitted against the 3rd ground of appeal that the respondent explained in detail how she acquired and registered her own properties including disclosing the source of fund and how much she invested the fact which was never controverted anyhow by the evidence adduced by the Appellant and that, exhibit A4 spoke it all about their personal properties, over which each party owned. Replying to the 2, 4, 5, 6, 7, 8, 9, 10 and 12 grounds of appeal collectively, learned counsel for the Respondent argued that the division 14 of matrimonial properties was well managed, and all facilitation was in accordance to the law thus: Firstly, in countering the appellant's submission on the house at Mnadani, the respondent submitted that the Court was right to give it to the Appellant basing on the Appellant's style of life and his own testimony. Secondly, on the issue of withdrawal of funds from the account, the respondent's counsel argued that, it was done as per the power of attorney which allowed the Respondent to deposit, and to withdraw a cash, and that, the said power of attorney had no fixed amount which the Respondent was given to operate. Thirdly, on the house at Plot No 18 Block C Kikuyu South the Respondent's counsel argued that the whispered house is solely owned by the Respondent as proved by a deed of gift, receipts of water and electricity service, lease agreements, division from her parents and the sale agreement as per exhibit A8. Fourthly, with regards to the house located at Plot No 61 Block D Ilazo extension, the learned counsel submitted that it is the Respondent's personal property. That, the Respondent bought the said plot from the agent of the city and she started construction after leaving the Makulu house as proved by Exhibit A7 collectively. 15 Fifthly, replying to the submissions with regard to house at Makulu, learned counsel for the Respondent contended that, she constructed largely herself as per proof of documents in exhibit A6 collectively admitted, which are receipts of water, electricity, Tanzania Revenue Authority's receipts and survey fee, and that, the Appellant's contribution was on renovations only. Hence, for the Court to award him 30% shares, it was very much correct. Arguing further about Plot No 208 Block C Ilazo and the farm at Zanka, the respondent's counsel, primarily appreciated the division of 30% to 70% meted by the trial court between the Appellant and the Respondent respectively. He further drew inference to the case Gabriel Nimrod Kurwijila v. Theresia Malongo (2020) T.L.R 343, where he insisted that due to the strong evidence adduced by the Respondent, the division of 30% to 70% was rightly founded in the premise where the Respondent was everything to the family, as she managed to prove that she was the one who bought everything from home utensils and construction as per the proof of evidence she managed to testify in the trial Court. Finally, the Respondent prayed that the 2, 4, 5, 6, 7, 8, 9, 10 and 12 grounds of appeal be dismissed for being devoid of merit. 16 Coming to grounds number 11 and 12 on the issue of biasness on relying and using exhibit A4. Learned counsel contended that, such document was tendered in Court and the same was signed by the Appellant and the Respondent while they were sober in mind. And the same has never been nullified by either party. And further argued that, the Appellant did not bring any evidence in countering the same as he failed to bring any proof that, the same was forged or doctored as the same was written before an Advocate of his own choice. He therefore insisted that, an exhibit A4 resolves the whole case as it indicates what should be done if parties will decide to part ways on treatment of each one's properties, therefore we invite the Court to dismiss this ground either. On grounds 13 and 14, we are of the settled view that, the order for maintenance of the children of Tsh. 200,000/- for each child was ordered in consideration of the best interest of the child, bearing in mind that the Appellant had at no point in time in the subsistence of the marriage to date, provided even a single cent to support the welbeing of the children. Whereas, all the time since they were born to date the Respondent is responsible to their health school fees, food and everything. 17 In the end, the respondent prayed the appeal to be dismissed forthwith for want of merits. In rejoinder, the appellant's counsel reiterated the submission in chief and added on first ground of appeal that there was no cogent evidence to suggest that the Appellant contributed to the breakdown of the marriage. The learned counsel added on the 2, 4, 5, 6, 7, 8, 9, 10 and 12 grounds that the alleged division of the said properties was against the law and against evidence adduced at the trial by the parties. As regards to exhibit A4, he argued that the agreement does not in any way qualify to be a contract under the laws, and for enforcement of the court. Adding to that, he retorted that, any agreement or arrangement as regard to properties are subject to scrutiny by the court under section 108(b) of the Law of Marriage Act. He stressed, in the gist of the provisions of this law, any unreasonable agreement cannot be allowed. All said and done, in the end, that is what was submitted by the parties in support of, and against the appeal. That said, I am now at liberty to go through the contested issues by the parties. In the District Court, the Respondent petitioned aimed for divorce, custody of the two issues, maintenance of the issues and matrimonial 18 properties of the parties be vested to their issues. In paragraph 7 of the petition for divorce, the respondent listed matrimonial properties to be one house located at Makulu, Dodoma, two motorvehicles, one Kirikuu with registration No. T852DPC solely brought by her and one Toyota coaster with registration No. T449 DLR jointly bought by the parties. Replying to the petition of divorce, the appellant vehemently disputed the petition for divorce, and he inter alia disputed paragraph 7 by arguing that, the respondent failed to list other properties which he listed at paragraph 10 of his Reply to be two matrimonial houses, one at Plot No. 61 Block D Ilazo Extension and another at Plot No. 18 Block C Kikuyu South both within Dodoma City. Landed properties at Plot No. 208 Block C Ilazo Extension within Dodoma City and a farm of 19 acres at Zanka Village Bahi District. He also listed three motor vehicles with registration numbers, T 243 DQY Toyota Rav 4, T 142 DPQ Toyota Vanguard and T 549 DMZ Suzuki Carry. And home appliances namely, sofa set, dining table set with its chairs, TV set (Sony), showcase, gas cooker, electric cooker, refrigerator, dress cobalt and five beds with their mattresses. The appellant's memorandum of appeal is comprised of sixteen (16) grounds of appeal and when the appeal was heard he dropped the 19 16th ground hence 15 grounds of appeal. In my determination I will categorize them into five (5) issues for determination. Thus; one, what is the status of relationship between the parties from the time they started their relationship to the time the appellant's filed for divorce, two, whether divorce was properly granted, three, whether the trial court rightly distributed the acquired properties, four, whether the trial court wrongly granted custody of the two issues to the respondent and five, whether, the maintenance order was rightly decided. Before jumping into the issues, I will start showing the duty of the appellate court in addressing the grounds of appeal. In Malimo Montagekonsultabv Tanzania Branch v Margaret Gama, Civil Appeal No. 86 of 2001 (unreported) the court held that: " an appellate court is not expected to answer the issues as framed at the trial. That is the role o f the trial court. It is, however, expected to address the grounds of appeal before it, even then, it does not have to deal seriatim with the grounds o f appeal as listed in the memorandum of appeal. It may, if convenient, address the grounds generally or address the decisive ground o f appeal only or discuss each ground separately". 20 Couched from above, I will determine the grounds of appeal in the manner addressed above. I also find it crucial to state herein that, this Court being the first appellate court, it has powers to re-evaluate and consider the evidence and make its own decision. See the case of Prince Charles Junior v. Republic, Criminal Appeal No. 250 of 2014, CAT at Mbeya, (unreported). This position was also reiterated in the case of Siza Patrice V. Republic Criminal Appeal No. 19/2010 (CAT - unreported) where the Court held: "We understand that it is settled iaw that a first appeal is in the form o f rehearing. The first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings off act, if necessary" Having seen the powers of the first appellate court, now coming to answer the first issue concerning the status of the parties' relationship. The relevance of this issue is for assisting the court to determine whether there was a possibility of presumption of marriage between the parties prior to them being legally married, since most of the disputed matrimonial properties were acquired prior to the parties' marriage. It is a legal requirement that before the court distributes properties acquired 21 in none existence of marriage it has to satisfy itself that there was presumption of marriage. When the court of appeal was faced in akin situation in Richard Majenga v. Specioza Sylivester, Civil Appeal No. 208 of 2018, the Court stated that: - "It is dear that the court is empowered to make orders for division o f matrimonial assets subsequent to granting o f a decree o f separation or divorce. Therefore, though in this case both parties' pleadings were not disputing that they were cohabiting as husband and wife but since their relationship was based on presumption o f marriage, there was need for the trial court to satisfy itself if the said presumption was rebuttable or not In the circumstances, we are in agreement with both learned counsel for the parties that it was improper for the trial court to resort into granting the subsequent reliefs prayed, before satisfying itself on the existence o f the presumed marriage[Emphasis added]. This court being the first appellate court has a duty therefore to evaluate the evidence and make a finding regarding the same. According to the evidence adduced in the trial court, it is undisputed fact that, the parties met and started their relationship in 2010 as lovers. In 2011 they welcomed their first child, Mishma Fatael Sam. It is the respondent's allegations in her evidence that, after she gave birth to the child, a woman confronted her alleging to be the appellant's wife. The respondent went on alleging that they parted ways and agreed to maintain their child while the appellant was living at area C with his alleged wife. Further to that, in 2016, the Appellant pleaded to the respondent to restore their relationship, and thus they did, and in May, 2017 the couple welcomed their second child, one, Milca Fatael Sam. That, after giving birth, the alleged wife showed up again, this time, it was at the Respondent's working place, claiming that the Respondent was breaking her marriage. The Respondent allegedly contacted the Appellant, and she decided to quit the relationship. And thereafter she moved on with her life with her two children. That, in 2018 the appellant approached her claiming to have divorced his wife thus, they got married in 21st day of September, 2018. A marriage certificate was tendered and admitted in evidence as Exhibit 23 A3. That, after marriage the appellant went on living at Area C. And that, he would visit their matrimonial home once or twice a week. However, the Respondent later realized that the Appellant was still married, and that he had six other children. Therefore, after the discovery, she was hurt, and saw the marriage started breaking down. That is when she decided to approach the Marriage Reconciliation Board in March, 2021, but it failed to reconcile the parties and issued Form No 3 which was admitted as Exhibit A5, and later, she petitioned for divorce. On his part, the appellant disputed the respondent's evidence regarding their ’love circle". Firstly, he admitted them starting the relationship in 2010, then he went on alleging that in 2011 they got a child and in 2013 he rented the respondent a house at area "C" as his fiancee. Later on, he moved her to a much bigger house at Nkuhungu Chama in 2014 and later they moved to his house at Makulu. He went on alleging that from 2014 to 2017 they lived happily cohabiting and were blessed with another child in 2017. In determination of the first issue, let me start by quoting section 160 of the Law of Marriage Act, Cap 29 R. E 2019, thus; "160(1) Where it is proved that a man and woman have lived together for two years or more, in such 24 circumstances as to have acquired the reputation of being husband and wife, there shaii be a rebuttable presumption that they were duly married. (2) When a man and a woman have lived together in circumstances which give rise to a presumption provided for in subsection (1) and such presumption is rebutted in any court o f competent jurisdiction, the woman shall be entitled to apply for maintenance for herselfand for every child o f the union on satisfying the court that she and the man did in fact live together as husband and wife for two years or more, and the court shall have jurisdiction to make an order or orders for maintenance and, upon application made therefor either by the woman or the man, to grant such other reliefs, including custody o f children, as it has jurisdiction under this Act to make or grant upon or subsequent to the making o fan order for the dissolution o f a marriage or an order for separation, as the court may think fit, and the provisions o f this Act which regulate and apply to proceedings for, and orders of, 25 maintenance and other reliefs shah' in so far as they may be applicable, regulate and apply to proceedings for and orders o f maintenance and other reliefs under this section." Looking at the evidence from both sides in the trial court when deliberating the first issue regarding their relationship. I have come to a settled position that, from the year 2010 to 2017 the parties were on and off the relationship. And, when the relationship was on, there was no proof that the parties were living under the same roof for the period of two (2) consecutive years or above and acquired the status of being husband, and wife. I am saying so because in her evidence, the Respondent alleged that they have been living apart from each other. The Appellant disputed that fact, and alleged to have been living under the same roof with the respondent from the year 2014 to 2017, but he had no evidence to prove that fact apart from mere assertions. Had itbeen the true version, the appellant could have categorically opposed terminal departure testified by the respondent in her testimony. The appellant was duty bound to disprove the Respondent's assertion, and further attested if they were really living together under same roof, for the court to ascertain whether there was presumption of marriage prior to the 26 marriage in accordance to Section 110 of the Evidence Act, Cap 6 R. E 2019. When ascertaining presumption of marriage, Mwalusanya, J, (as he then was) established three elements to constitute presumption of marriage in John Kirakwe vs Iddi Siko, [1989] TLR 215 thus; "(a) that the parties have cohabited for over two years; (b) that the parties have acquired a reputation o f being husband and wife; (c) that there was no formal marriage ceremony between the said couple. " In the instant case there is no proof that the parties had presumption of marriage prior to them being legally married in the year 2018. Thus, the court will assume that the parties herein got married in the year 2018, and thus, this will be the base for consideration as it will be discussed later on in distribution of properties. Coming to the second issue on whether divorce was properly granted. Looking at all 15 grounds of appeal, the Appellant is not disputing for the grant of divorce by the trial court, but rather, he disputes the trial court's decision that the appellant has also contributed to the breakdown 27 of marriage which in my opinion has no effect in the decision thereof. That said, even if it can be proved otherwise, the court would stand in the same position that the divorce order be granted, due to the fact that both parties do not dispute on the same. Therefore, I my view, the trial court has properly analyzed the evidence, and delivered a proper decision. On the third issue on distribution of matrimonial properties. Section 114 of the Law of Marriage Act, Cap 114, Cap 29 R. E 2019 provides for distribution of matrimonial properties when divorce is granted. The provision provides, thus; "114(1) The court shall have power, when granting or subsequent to the grant o f a decree o f separation or divorce, to order the division between the parties o f any assets acquired by them during the marriage by theirjoint efforts or to order the sale o f any such asset and the division between the parties of the proceeds o f sale. (2) In exercising the power conferred by subsection (1), the court shall have regard to - (a) the customs of the community to which the parties belong; 28 (b) the extent o f the contributions made by each party in money, property or work towards the acquiring o f the assets; (c) any debts owing by eitherparty which were contracted for theirjoint benefit; and (d) the needs o f the children, if any, o f the marriage, and subject to those considerations, shall incline towards equality o f division. (3) For the purposes o f this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts." Now looking at the case at hand, I will deliberate whether distribution of properties based on properties acquired during subsistence of the parties' marriage in compliance to with section 114 of the Law of Marriage Act, Cap 29. In her petition for divorce, specifically at paragraph 7 of the petition, the Respondent listed matrimonial properties subject to division to be, one house located at Makulu, Dodoma City, two motor 29 vehicles, one Kirikuu with registration No. T 852 DPC solely brought by her and one Toyota coaster with registration No. T449 DLR jointly brought by the parties. Likewise, in his reply to the Petition for divorce, the Appellant disputed the alleged properties arguing that, the respondent had failed to mention other matrimonial properties. He listed the properties to be two matrimonial houses, one at Plot No. 61 Block D Ilazo Extension and another at Plot No. 18 Block C Kikuyu South both within Dodoma City. Landed properties at Plot No. 208 Block C Ilazo Extension within Dodoma City and a farm of 19 acres at Zanka Village Bahi District. He also listed three motor vehicles with registration numbers, T 243 DQY Toyota Rav 4, T 142 DPQ Toyota Vanguard and T 549 DMZ Suzuki Carry. And home utensils namely, sofa set, dining table set with its chairs, TV set (Sony), showcase, gas cooker, electric cooker, refrigerator, dress cobalt and five beds with their mattresses. In deliberating this issue, I will only deal with matrimonial properties acquired during subsistence of marriage in compliance with the law and not otherwise. Starting with properties listed by the petitioner then I will finish with the list by the appellant. 30 The alleged matrimonial house located at Makulu, the petitioner alleged that she constructed the house from the year 2010 to 2014. That, the appellant contributed in renovations only. She added that, she refers it as a matrimonial property since they were living there as a matrimonial house, and that, in their agreement about an exhibit A4, they both agreed the same to be left to the kids. On his part, the Appellant testified that, the disputed house is his, he bought it from one, Ramadhan Dudu back in 2012, and it was built from the year 2012 to 2013. Looking at Exhibit A4, the exhibit is an agreement with a heading "MAKUBALIANO YA WANANDOA JUU YA MUSTAKABALI WA MAISHA YAO NA WATOTO WAO PAMOJA NA WAZAZI NA MTEGEMEZI WAO" entered by the parties on the 16th day of May, 2020 and was witnessed by an advocate. One of the terms in paragraph 2 being that, the house at Makulu to be their children's house. This exhibit when tendered in court, the Appellant objected, disputing the annexture thereto which lists the respondent's alleged properties questioning its authenticity since the same was Neither signed by himself nor the advocate. In my endeavor, the trial court rightly ordered the same to remain as they agreed to be in hands of their children. In my view, even if the annexure that is disputed by the Appellant from the agreement is expunged, yet, paragraph 2 on the first dot indicates the same house located at Makulu. It is a trite law 31 that parties are bound by their agreements. Seen ... Therefore, since they are bound by the terms of the contract they had entered thus, the house at Makulu, Dodoma is not a matrimonial property because its ownership has been already transferred by the parties herein. Coming to the two motor vehicles, one Toyota Ace commonly known as Kirikuu with registration No. T852DPC and one Toyota coaster with registration No. T449 DLR. In her evidence SMI alleged that the kirikuu she bought it with her money. That, she gave the respondent Tshs 17.000.000/= and thus, he went to Dar es salaam and bought it that the car is registered on the appellant's name. As regards to the Toyota coaster, SMI alleged that they both contributed to the its purchase. That, SMI contributed Tshs 10,000,000/= and the respondent contributed Tshs 25.000.000/=. On his part, the appellant alleged to have brought the two cars on his own without any contribution from the respondent. He tendered exhibit D5 a business loan he used for the purchase of the Toyota coaster. The respondent was duty bound to prove her contribution to the purchasing of the alleged motor vehicles as she alleged them to be matrimonial properties, but she had no proof of the same. That being the case, the respondent failed to prove her contribution in acquiring the two 32 motor vehicles. Thus, the trial court wrongly considered them as matrimonial properties. Coming to the properties listed by the appellant which are two matrimonial houses, one at Plot No. 61 Block D Ilazo Extension and another at Plot No. 18 Block C Kikuyu South both within Dodoma City. Landed properties at Plot No. 208 Block C Ilazo Extension within Dodoma City and a farm of 19 acres at Zanka Village Bahi District. He also listed three motor vehicles with registration numbers, T 243 DQY Toyota Rav 4, T 142 DPQ Toyota Vanguard and T 549 DMZ Suzuki Carry. And home utensils namely, sofa set, dining table set with its chairs, TV set (Sony), showcase, gas cooker, electric cooker, refrigerator, dress cobalt and five beds with their mattresses. Starting with alleged two matrimonial houses, one at Plot No. 61 Block D Ilazo Extension and another at Plot No. 18 Block C Kikuyu South, both within Dodoma City, in her evidence the respondent alleged that the Plot No. 61 Block D Ilazo Extension is her personal property. To prove that she tendered title deed, sale agreement and receipts which were collectively admitted in court as exhibit A7. The documents bear the names of the respondent. The sale agreement shows that the property was bought in March, 2018 before the parties were legally married in 33 August, 2018. On his part, the appellant testified that, they bought the house jointly but it was written in the respondent's name. The appellant had no other evidence to dispute the respondent's personal ownership of the house. Thus, I am of the position that the property is a personal property of the respondent since the same was bought prior to the marriage and the appellant failed to prove his contribution of developing the same after they married for it to be distributed in compliance with section 114(3) of the LMA. As regards to Plot No. 18 Block C Kikuyu South, in her testimony the respondent alleged to have been given a gift by Fred Sam, the appellant's late brother and his wife prior to the marriage and she developed the house on her own. She tendered a deed of gift which was admitted as exhibit A 8. On his part, the appellant alleged that the house is his. He brought his late brother's wife, Arvester William Mariki (DW4) who alleged that she and his late husband who was the appellant's brother gave the parties the Kikuyu plot as a gift prior to their marriage and the parties developed the same by building a house thereon. The appellant brought two other witnesses, Simon Constantine (DW2) and Joseph Maziku (DW3) who were allegedly mason hired by the appellant to develop the property. In determination of the same there is no dispute 34 that, the respondent was gifted the said plot prior to their marriage which is proved by the deed of gift, exhibit A8. But, section 114 (3) of the Law of Marriage Act, Cap 29, R. E 2019 provides that, properties acquired prior to marriage by one and being improved during the marriage by the other party or by their joint efforts are subject to division when granting divorce. The provision reads; "(3) For the purposes o f this section, references to assets acquired during the marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by theirjoint efforts." Now looking at the disputed house located at Kikuyu, the appellant brought two witnesses, DW2 and Dw3 who were masons engaged by him in construction of the house. Where DW2 alleged to have constructed the foundation and linter, while DW3 alleged to have constructed the roof of the alleged house. Thus, it is my position that, the appellant proved his contribution in improving the property, thus he deserves to get part of the division of the said Kikuyu house. Division to be assessed later. On the landed properties at Plot No. 208 Block C Ilazo Extension within Dodoma City, the respondent testified that the plot is hers, that he 35 asked the appellant to find a plot with offer letter and that, it has an ongoing dispute regarding its ownership. On his part, the appellant just alleged that the plot is a matrimonial property but he had no any evidence proving that fact. Since the appellant is the one brought the property in his Reply, he ought to prove in compliance to the legal requirement that whoever alleges must prove as provided so by section 110 of the Law of Evidence Act, Cap 6, R. E 2019. Coming to the three motor vehicles namely, T 243 DQY Toyota Rav 4, T 142 DPQ Toyota Vanguard and T 549 DMZ Suzuki Carry listed by the appellant in his Reply to the petition for divorce. The respondent alleged in her testimony that she had a Toyota Rav 4 which she sold and bought Toyota Vanguard which is her personal property. In proving the same, she tendered the registration card of the Toyota Rav 4, sale agreement of the Toyota Van Guard and its registration card which were collectively admitted in evidence as exhibit A9. On his part, the appellant admitted the Toyota Rav 4 being sold and topped up to buy the Toyota Vanguard which he alleged that it was a family car. In determination of the same I have gone through exhibit A9 and found that the names written on the documents regarding the two cars are respondent's proving them to be her personal properties. The appellant had no other evidence proving his 36 contribution for them to be termed as matrimonial properties subject to division. As regards to the other T 549 DMZ Suzuki Carry, this was brought up by the appellant in his Reply, but when testifying in court he did not testify on the same, and the trial court did not consider it in its judgment hence I will not waste my energy either since the appellant did not prove the existence of the motor vehicle. As regards to home appliances namely, sofa set, dining table set with its chairs, TV set (Sony), showcase, gas cooker, electric cooker, refrigerator, dress cobalt and five beds with their mattresses. The appellant alleged to have bought the same before marriage and she tendered sale receipts which were collectively admitted as exhibit A 10. On his part, the appellant had nothing to say concerning his contribution on the same hence thus he failed to counter the respondent's evidence that the properties are her own and not matrimonial properties subject to distribution. As regards to the farm at Zanka pleaded by the Appellant in his Reply, he also failed to prove his contribution on the same, neither did he testify on when and how it was acquired thus, the trial court also wrongly decided that, it was a matrimonial property and distributed the same. 37 There is also another property, that is the house at Mnadani which was brought up when the appellant was being cross examined by the respondent. On that, he alleged to have acquired the same in 2006. The trial court went on distributing it as part of the matrimonial properties and it was distributed to the appellant. But, looking at the parties' pleadings, the same was never pleaded as a matrimonial property nor was it proved in their testimony as well submitted by the appellant. Thus, the house at Mnadani is also excluded as part of the matrimonial properties. That being said about the disputed properties, I now come to the conclusion that, the only property proved to be a matrimonial property subject to distribution is the house at Plot No. 18 Block C Kikuyu South. I thus make an order that the same be distributed at 60% to the Respondent and 40% to the Appellant. The fourth issue regarding custody of the children. The trial court granted custody of the two issues to the Respondent, their mother. The Appellant was granted access to the children when they are in holidays to be shared half way. Section 125(1) of the LMA gives power to the court to grant custody of a child to either parent. Subsection (3) goes on providing that, there shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother. 38 Looking at the parties' issues, when testifying the Respondent tendered birth certificates which were collectively admitted as exhibit A3 which proves that the first child, Mishma Fatael Sam was born on the 26th day of October, 2011, whereas, the second child, Milca Fatael Sam was born on the 18th day of May, 2017. Thus, the first elder child was 11 years old, and the second was 5 years old when the trial court granted the order for custody. In determination of the custody order, it is not disputed that both kids were in boarding school as testified in the trial court. The appellant is disputing the custody order merely because the respondent is living with another man, and has another child with him. I do not see any fault with the trial court's order of half custody between the parties herein since both are parents and both have been given access to the kids. And also, bearing in mind that even the Appellant has other issues with other women apart from the Appellant. Therefore, the fact that the Respondent is leaving with another man with a child who is not the Appellant's child cannot deprive her of right to custody of the kids. Afterall, the Appellant is also granted access to his beloved children. Thus, this ground has no merit. 39 As regards to the last issue of maintenance. The trial court ordered the appellant to pay Tshs 200,000/= for each child making the total of Tshs 400,000/= per month. The court also ordered the parties to contribute half the school fees for the kids, and the respondent to provide the kids with health insurance since she is a public servant. Now in this appeal the appellant is disputing the Tshs 400,000/= monthly maintenance since the children are in a boarding school. In my deliberation of the same, I have thoughtfully considered the fact that most of the time the kids spend their time in the boarding school thus, the order for payment of Tshs 400,000/= monthly was excessive, I thus, only vary the maintenance order to the extent that, the appellant to pay Tshs 100,000/= monthly for each child when the kids are in the their holidays, except for incidental expensive which raises while they are at school, that can be shared equally. Ordered accordingly. DATED at DODOMA this 15th day of November, 2024. 40 This Judgment delivered this 15th day of November, 2024 in the presence of parties. The appeal is partly allowed.