| dc.description | NACKY ESTHER NYANGE V. MIHAYO MARIJANI WILMORE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (Korosso, Galeba, and Makungu, JJ.A.)
CIVIL APPEAL NO.169 OF 2019.
(From the decision of the High Court of Tanzania at Dar es salaam, Kitusi, J., dated 27th September,2018 in Civil Appeal No.24 of 2018)
Civil practice and procedure –Appeal-matrimonial proceedings-child maintenance -Child custody
Civil practice and Procedure-Appeal-matrimonial proceedings-matrimonial Assets-matrimonial contributionproperties distribution-whether the properties acquired during the pendency of marriage is subject to distribution to the parties-what constitutes matrimonial property to warrant distribution to spouses where the need arises
Civil practice and procedure –matrimonial proceedings-costs payment-whether or not a woman has sufficient means to be ordered to pay the costs.
This is the second appeal. In the Resident Magistrate's Court of Dar es Salaam at Kisutu, the appellant (then the petitioner) sued the respondent in Matrimonial Cause No. 38 of 2015 claiming the following reliefs: a decree of divorce; to be given sole legal and physical custody of the children and respondent have occasional visitation or access rights; to be paid by the respondent spousal maintenance of USD 2000.0 per month for the period of ten years from the date of divorce; payment of USD 3000.00 per month from the respondent for child i support up until each child reaches the age of 18 years; payment from the respondent of arrears for child maintenance and spousal maintenance at the rate stated from the date of separation on 1/9/2014 up to the date of the divorce decree; payment from the respondent for school fees and medical expenses for the children as the need arises; order for the respondent to allow the appellant and the children to remain in the matrimonial home until both children reach the age of 18 years; an order for equal division of matrimonial properties; an order prohibiting the respondent from withdrawing funds from the children's bank accounts without approval of both parties; costs; and any other reliefs as granted by the court)
Held;
(i) Section 125(2) (a), (b) of the Law of Marriage Act (Cap.29 R.E 2019) articulates that in deciding in whose custody an infant should be placed the paramount consideration should be the welfare of the infant.
(ii) Section 37(4) of the Law of Child Act (Cap.13 R.E 2019) requires Courts when granting custody to primarily consider the best interests of the child.
(iii) When considering the contribution of the parties to the acquisition of the property within the matrimony, in civil cases, the burden of proof lies on the one who alleges.
(iv) Courts when ordering a wife to pay costs to a husband in matrimonial proceedings, must assign reasons expounding on sufficiency in her means.
Appeal dismissed.
Cases referred to:
1. Anthony M. Masanga vs. Penina (Mama Mgesi) and Lucia (Mama Anna), Civil Appeal No.118 of 2014 (Unreported)
2. The Registered Trustees of Joy in the Harvest vs. Hamza K. Sungura, Civil Appeal No. 149 of 2012 (Unreported)
3. Tourniers National Provincial and Union Bank of England (1924) 1KG 461
4. Richard William Sawe vs. Woitare Richard Sawe, Civil Appeal No.38 of 1992 (Unreported)
5. Tanzania Fish Processors Limited vs. Eusto K. Ntagalinda, Civil Application No.6 of 2013 (Unreported)
Statutory provision referred to:
1. Section 4 (2), Section 26 (1) (b) and Section 37 (4) of Law of Child Act, (Cap.13 R.E 2019)
2. Section 90 (1) and Section 114(1) of Law of Marriage Act, (Cap. 29 R.E 2019)
3. Section 110 (1), (2) and Section 112 of the Tanzania Evidence Act, (Cap. 6 R.E 2019)
Mr.Frederick Werema and Mr. Nuhu Mkumbukwa for the Appellant
Mr.Kelvin Kayaga for the Respondent | en_US |
