IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA

AT MBEYA
MATRIMONIAL APPEAL NO. 02 OF 2021
(From the District Court of Momba District, at Chapwa in
Matrimonial Appeal No. 4 of 2020, Originated in the Primary Court
of Momba District, at Tunduma in Matrimonial Cause No. 29 of
2020)
SHIJA LABSON HAONGA.................................................... APPELLANT
VERSUS
KISSA PETER NGAO.......................................................... RESPONDENT

RULING

Date of last Order: 03.08.2021

Date of Judgment: 29.10.2021

Ebrahim, J.
This is a second appeal. The appellant SHIJA LABSON HAONGA

challenged the judgment dated 15th September, 2020 of the

District Court of Momba District, at Chapwa in Matrimonial Appeal

No. 4 of 2020. The matter arose in Matrimonial Cause No. 29 of

2020, in the Primary Court of Momba District, at Tunduma.

The brief background of this matter, according to the record,

goes thus; the appellant and the respondent were husband and

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wife respectively. Their union was so considered under the

principle of presumption of marriage since they started living

together in 2003. They were blessed with three issues (Isaka Shija

Haonga 15 years old, Bruno Shija Haonga 12 years old and Noel

Shija Haonga four years old). However, after some years their

marriage turned sour. In the year 2020 therefore, the respondent

filed a matrimonial matter before the Primary Court (the

Matrimonial Cause No. 29 of 2020) claiming for divorce and

division of matrimonial assets. The appellant disputed the claims.

After hearing both sides, the Primary Court found the marriage not

to have been broken beyond repair. It however, issued an order

for separation for two years. It also ordered the custody of Noel, a

four years old boy to be under the appellant.

The respondent was aggrieved with the decision, she appealed to

the District Court on the ground that the Primary court erred when

it issued the order for separation while she petitioned for divorce

and division of matrimonial assets.

In its turn, the District Court allowed the appeal. It substituted the

order for separation with divorce, it also ordered for matrimonial

assets to be divided among them at the ratio of 50% each. The

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appellate court further ordered the custody of the said Noel to be

under the respondent and the appellant to provide for

maintenance at the tune of 30,000/= per month. Being

discontented by the District Court decision, the appellant

preferred the instant appeal raising two grounds of appeal as

follows:

1. That the Resident Magistrate erred in law and fact in his

decision that distribution of the house and other domestic

utensils be 50% to each party without considering any proof

of the contribution of each part to that house.

2. That the Resident Magistrate erred in law and fact in his

decision to allow the custody of the 3rd child to be under his

mother (respondent) and ordered the appellant to provide

30,000/= per month without making any analysis of the

environment of the respondent, and he failed to consider

that the respondent left her child with his father (appellant)

while he went to another man when the child was only 3

years.

Owing to these two grounds of appeal the appellant prayed for

this court to allow the appeal with costs.

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When the appeal was called for hearing, the appellant appeared

in person, unrepresented. The appeal was heard exparte since

the respondent did not enter appearance even after the service

by publication via Mwananchi News Paper was effected on 24th

July 2021.

In his oral submissions, the appellant prayed for this court to adopt

and consider his grounds of appeal. He added briefly that the

respondent found him with the house which he was given by his

father. He also contended that the District Court in ordering the

custody of their third issue did not consider the fact that he is able

to take care of him since he did so when the respondent left him

while he was only 3 years old. The appellant thus prayed for this

court to order the same child to be under his custody with the

right of visitation to the respondent.

I have considered the grounds of appeal, and the submissions by

the appellant. In my view, since the appellant did not appeal

against the order of the District Court substituting the order for

separation with the decree for divorce, this court is entitled to take

it that the parties now do not have any dispute regarding the

decree for divorce. The court thus, considers the decree for

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divorce as not an issue between the parties and it shall continue

to take them as divorced couple.

Now, owing to the observations made above, I find that the two

grounds of appeal can be smoothly determined by this court on

two issues as follows:

a) Whether the District Court was justified in making the order for

division of matrimonial assets and,

b) Whether the District Court rightly reversed the Primary Court’s

order that gave the custody of the third issue (Noel) to the

appellant.

In relation to the first issue, it is the law i.e section 114 (1) of the Law

of Marriage Act Cap. 29 R.E 2019 (LMA) that, a court granting

divorce may order division of matrimonial assets between the

parties. However, the court does not perform that exercise

arbitrarily. The law sets some factors to be considered by the court

in performing that task. Such factors are set under section 114(2)

of the same Act. The Court of Appeal of Tanzania (the CAT) in the

case of Yesse Mrisho v. Sania Abdul, Civil Appeal No. 147 of 2016,

CAT at Mwanza (unreported) underscored that the import of

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section 114 of the LMA, is that distribution of matrimonial property

is guided by the principles enshrined in the said section.

These provisions of section 114(2) are couched in mandatory form

as follows, and I quote them for a readymade reference:

"114(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;

(b) the extent of the contributions made by each party in money,

property or work towards the acquiring of the assets;

(c) any debts owing by either party which were contracted for

their joint benefit; and

(d) the needs of the children, if any, of the marriage,..."

In my view, these provisions apply to division of matrimonial assets

depending on the circumstances of each case. In the matter at

hand, the record shows clearly that, the District Court did not let

the parties give evidence on how they contributed on the

acquisition of assets which it ordered to be distributed. What is

revealed in the record is the respondent’s submissions during

hearing of appeal that they had home assets comprising of two

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beds and mattresses, two TV, two cup boards, sub-woofer, radio,

kitchen utensils and a house. The respondent thus prayed for the

District Court to divide them equally since she contributed in

acquiring them.

The averment by the respondent was disputed by the appellant in

his reply submissions. He contended that the said house was built

before their marriage. He however contended that there is

unfinished house within the same plot. He further contended that

the respondent left their house with some properties such as

sewing machine, cooking gas, 8 sacks of maize, her clothes and

cash, Tshs. 350,000/=.

When the District Court ordered for division of matrimonial assets, it

did not assign any reason as to why it reached to the decision

that the properties be divided equally between the parties. Also, it

did not say if the narration by the parties during their submissions

regarding the appeal was considered as evidence on acquisition

of matrimonial properties. Moreover, the District Court did not

clarify which house was to be divided between the two contested

houses. In my view non-disclosure of the house to be divided

might encourage future disputes between the parties. This is

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because court’s orders are supposed to be specific for avoidance

of future disputes in the processes of construing them.

Having considering the circumstances as stated above, it is my

observation that the District Court did not observe the law. This

follows therefore that the District Court was not justified in making

the order for division of matrimonial assets.

Concerning the second issue, my views are that, like the division of

matrimonial assets, custody of an issue is also guided by the law.

Section 125 of the LMA makes the pertinent guidance. Section

125(1) for example; vests powers in the court to make an order

placing a child of the marriage in the custody of either of the

couple or any other appropriate relative or association. Section

125(2) and (3) of the same Act set factors to be considered by the

court in making such order for custody. It guides thus, and I quote

it verbatim for ease of reference:

"125(2): In deciding in whose custody a child should be placed the

paramount consideration shall be the welfare of the child and,

subject to this, the court shall have regard to­

la) the wishes of the parents of the child;

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(b) the wishes of the child, where he or she is of on age to express

an independent opinion; and

(c) the customs of the community to which the parties belong.

(3) 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 but in deciding whether that presumption applies to the

facts of any particular case, the court shall have regard to the

undesirability of disturbing the life of the child by changes of

custody.”

Section 126 and 127 of the LMA provides for some additional

conditions that may be set by the court considering custody of an

issue of marriage. It is thus, my settled view that, the factors to be

considered in making an order for custody, have to be strictly

observed where they are applicable. This is because, as shown

above, the welfare of the child is the paramount consideration. In

fact, this is the major consideration a court should take into

account in deciding the issue of custody of a child, see also

decisions of this court in the cases of Febronia Nicodem v. Yohana

Shimba, (PC) Matrimonial Appeal No. 19 of 2019, High Court of

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Tanzania, at Mwanza (unreported) and Festina Kibutu v. Mbaya

Ngajimba [1985] TLR 44.

In the matter at hand, there was no consensus by the two parties

on the custody of the child at issue. However, before the Primary

Court in the respondent’s prayers, she did not request to be

granted a custody of any issue. The Primary Court suo moto

ordered for custody of the children including the third (Noel) to be

under the appellant on the reason that the respondent left them

with the appellant when she left home from 28/08/2019.

The decision by the Primary Court on the custody of the Children

was not challenged by the respondent through her appeal in the

District Court. This means that the respondent was satisfied with

the order for custody. Even if this court would assume that the

respondent was dissatisfied with the order for custody made by

the Primary Court, still the District Court was duty bound to allow

parties to give evidence which could assist it in determining the

question of welfare of the child. The District Court only held that,

the child was under seven years and for his welfare was supposed

to be under the custody of the respondent. Yes, I am aware of the

rebuttable presumption that a child under seven years ought to

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have been in the custody of her mother; see subsection (3) of

section 125 of LMA quoted above. However, I do not see any

evidence on the record which supported the decision made by

the District Court on the custody of the child (Noel). The record of

the matter at hand nevertheless, shows that, in deciding the issue

of custody of the child, the District Court considered the

applicable factors mentioned above. It did not even inquire the

environment the respondent lived after leaving her home if the

same was suitable as for paramount factor of the welfare of the

child as rightly contended by the appellant.

It is thus obvious that, despite the fact that a court is empowered

by law to make an order on the custody of a child such powers,

like the powers to divide matrimonial assets, are not exercised

arbitrarily. They are exercised judiciously and in consideration of

the factors set under the provisions of law cited earlier. Such

consideration should also base on the evidence from the parties.

The District Court thus, violated the law cited above and the

violation was fatal since it caused to reach into undesirable

decisions.

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Having answered negatively the two issues above, this court is left

with another question to decide which is what order(s) should this

court make? Since the District Court was the first appellate court

which reversed the order for separation and substituted it with

decree for divorce. Again, since the appellant herein did not

challenge the decree for divorce, and since I have observed

above that the District Court was supposed to receive evidence

or order the Primary Court to receive evidence regarding

acquisition of matrimonial properties and custody of the children;

for the interest of justice the following orders shall save the

purpose.

i) The orders regarding the distribution of matrimonial assets

and the custody of the third issue made by the District

Court is here by nullified and set aside.

ii) Also, the order for custody of the children made by the

primary court is revived on the reason that the respondent

did not challenge it when she appealed in the District

Court.

iii) If any party wishes (i.e either the appellant or the

respondent) may go to the Primary Court make an

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 application for division of matrimonial assets upon them

producing evidence on their contribution in their

acquisition. The court shall follow the law as per section

114 of the LMA.

iv) No order as to costs since the unnormally led to this

appeal was contributed by the District Court and parties

are family.

Ordered accordingly.

Judge
Mbeya
29.10.2021

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