Innocent Wilfred Makundi vs Happiness Petropa Tarimo (Civil Appeal No. 1095 of 2025) [2026] TZCA 497 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KEREFU. J.A.. MWAMPASHI. J.A., And ISMAIL, J.A.) CIVIL APPEAL NO. 1095 OF 2025 INNOCENT WILFRED MAKUNDI ................................................ APPELLANT VERSUS HAPPINESS PETROPA TARIMO..................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Temeke Sub-Registry, One-Stop Judicial Centre at Dar es Salaam) (Qmeri, J.) dated the 10thday April, 2025 in Civil Appeal No. 23783 of 2024 JUDGMENT OF THE COURT 21st April & 7th May, 2026 KEREFU. J.A.: This matter originates from the District Court of Temeke, One Stop Judicial Centre at Temeke (the trial court) in Matrimonial Cause No. 34 of 2023. In that case, the respondent herein, petitioned to the trial court claiming for reliefs of divorce, division of matrimonial properties, custody and maintenance of the three issues of the marriage who were born during the subsistence of the marriage, before it went on rocks. The material background and essential facts of the matter as obtained from the record of appeal giving rise to the present appeal indicate that, the appellant and the respondent celebrated their i marriage under Christian rites on 03rd October, 2009. During the subsistence of their marriage, they were blessed with three daughters and jointly acquired various properties. The respondent stated that, they lived a happy marriage life with no difficulties until 2012, when the appellant developed a habit of being abusive and violent towards her. That, due to the said misunderstandings and frequent quarrels, she reported the matter to the family members, Church elders and police, but all in vain. Subsequent to the deteriorating ties, the respondent vacated the matrimonial home in 2021 and started her own life at Mabwepande together with her children. However, the appellant, maliciously and without informing her, picked the two elder daughters from their school and went to live with them. He also denied the respondent's access to the said children, unless she meets them at the Church or School. That, on 27th June, 2022, one daughter informed the respondent about sexual harassment she sustained from their father's houseboy. That, the matter was reported to police and social welfare office where it was agreed that the appellant should find a house girl who would assist him to take care of the two daughters. After all efforts to settle the dispute between them through amicable means by involving family relatives, police, social welfare and the Marriage Conciliation Board, had proved futile, the respondent decided to petition for divorce as indicated above. In her pleadings, the respondent, among others, listed the following properties, indicating that they were acquired through joint efforts: (i) A matrimonial house located at Mbezi Msakuzi, Mpiji Magoe with three shop frames; (ii) one plot located at Kigamboni; (iii) ten acres farm at Fukayose, Bagamoyo; (iv) one acre farm located at Fukayose, Bagamoyo; (v) Sugarcane plantation farms located at Morogoro; (vi) one motor vehicle make Toyota Sprinter in the name of Baraka Consultant, the company where the respondent was a shareholder; and (vii) personal belongings. On his part, the appellant admitted to have been duly married to the respondent but disputed to have assaulted, harassed and or chased her from the matrimonial home. He contended that, the respondent openly refused to reconcile and opted to live her own life without any justifiable cause. The appellant also disputed the allegations of sexual harassment of one of his daughters. He contended that, all children are well taken care of, in a manner which is satisfactory and to their best interest as required by law. From the parties' pleadings, the trial court framed the following issues for determination as reflected at page 99 of the record of appeal: 1. W hether the m arriage between the parties had irretrievable broken down; 2. W hether the parties had jo in tly acquired assets which were subject for division to the extent o f their contributions; 3. To whose custody are the m atrim onial issues w ill be placed; and 4. What reliefs are the parties entitled to. To establish her claims, the respondent, who testified as PW1, relied on her own sworn testimony, which was supported by the testimonies of two witnesses namely, Nelson Petropa (PW2) and Rose Petropa (PW3). Moreover, she tendered as exhibits, the RB and Police Form No. 3 (exhibit PI); the loan repayment schedule (exhibit P2); Form No. 3 from the Marriage Conciliation Board of Kwembe Ward dated 15th December, 2022 (exhibit P3); Certificate of Title for Mambwepande Plot No. P25697 (exhibit P4), and Land Forms and receipts to evidence the existence of the said plots (exhibit P5). On his part, the appellant, who testified as DW1, resisted almost all the claims advanced by the respondent except the information concerning celebration of their marriage and the three issues of the said marriage. To support his defence, apart from his own sworn testimony, he tendered documentary exhibits, to wit, an Order of the Primary Court dated 18th November, 2022 (exhibit Dl), building permit for Mabwepande Plot (exhibit D2), receipts (exhibit D3). Having heard the evidence from both sides, the trial court was convinced that the marriage between the parties had broken down beyond repair, hence granted a decree of divorce. The trial court further proceeded to order division of matrimonial assets, whereby the respondent was awarded, (i) the Mabwepande house; (ii) one acre farm located at Fukayosi Bagamoyo; and (iii) her personal belongings. On his part, the appellant was awarded the house located at Mbezi Msakuzi Mpiji Magoe. Then, the children were placed in the custody of the respondent, while the appellant was ordered to pay TZS. 150,000.00 monthly, per child for maintenance and also to continue to pay for their school fees. The appellant was also granted access to visit them. Aggrieved, the appellant unsuccessfully appealed to the High Court. Still undaunted, the appellant has come to the Court, premising his grievances on one ground, which can conveniently be paraphrased as follows: "That, the first appellate court erred in law to order custody o f the children to be vested to the respondent w ithout properly re-evaluating the evidence on record and consider the best interest o f the children." At the hearing of the appeal, the appellant was represented by Mr. Mukhtary Cheche, learned counsel whereas the respondent had the legal services of Mr. Hosea Chamba, also learned counsel. The appellant and the respondent were also present in Court. It is noteworthy that, pursuant to Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009, the learned counsel for the appellant had earlier on lodged his written submission, which he sought to adopt at the hearing to form part of his oral submission. On the other side, Mr. Chamba did not file any written submission, as he opted to address the Court in terms of rule 106 (10) (b) of the Rules. Submitting in support of the appeal, Mr. Cheche faulted the first appellate court for failure to properly evaluate the evidence on record and consider the welfare principle while granting the custody of the children to the respondent. That, the first appellate court did not comply with the provisions of section 4 (2) of the Law of the Child Act, Cap. 13 of the Revised Laws (the LCA), He contended that, in deciding in whose custody the children should be placed, the trial court, erroneously, did not give the said children an opportunity to express their independent opinions on the matter. To underscore that point, he referred us to the High Courts case of Rajab Shaban Bwanga v. Lilian Richard Haule, Civil Appel No. 54 of 2022 [TZHC] 11411. Mr. Cheche also faulted the first appellate court for failure to observe that the trial court did not request for social inquiry report to 6 assist it to determine as under whose custody the children should be placed. That, the trial court failed to take into account the recommendation of the social welfare officer who investigated on the alleged sexual harassment and suggested that the custody of the children be placed under the appellant. He insisted that, before granting the custody of the children to the respondent, the trial court was required to comply with the provisions of sections 125 (2) and 129 of the LMA read together with sections 26 (1) (2), 39 (2) of the LCA. To support his proposition, he again cited the decision of the High Court, in Nacky Esther Nyange v. Mihayo Marijani Wilmore, Civil Appeal No. 24 of 2018 [2018] TZHC 3917. He then insisted that, if the custody of the children will be placed on the appellant, it would be easier for him to supervise and make a close follow-up on their school development as the respondent had failed to do so. That, the school performance for the last born-child had deteriorated. Based on his submission, he invited us to allow the appeal, quash and set aside the decision of the first appellate court and its subsequent orders and find that, it is fit and just to place the custody of the children to the appellant. In response, Mr. Chamba started by blaming his learned friend for raising new issues, at this level, which were not raised and or determined by the trial court and the first appellate court. To amplify on his argument, he referred us to the appellant's testimony found at page 124 of the record of appeal and the decision of the trial court at page 142 of the same record. He equally referred us to the decision of the first appellate court, on the said matter, found at pages 203 to 210 of the record of appeal and argued that issues of children's school development and or poor school performance of the last-born child were neither raised nor determined by the trial court and the first appellate. That, at the trial, it was dear that the last-born was yet to be enrolled in any school as was only a girl-child aged six (6) years. The learned counsel insisted that, it is a settled position, that this Court will only consider and determine matters which were deliberated and determined by the first appellate court. On that account, he implored us not to entertain the said issues, unless they involve points of law. On the custody of the children, Mr. Chamba challenged the submission made by Mr. Cheche by arguing that in granting the custody of the children to the respondent, both lower courts considered many factors itemized under sections 125 (1), (2) and 129 of the LMA read together with sections 4 (2), 26 (1), 37 (4) and 39 (2) of the Law of the Child Act, Cap. 13 of the Revised Laws (the LCA). That, both lower courts, having evaluated the evidence on record, correctly found that, due to the age and sex of the said children, who are all female, it was 8 not healthy to grant custody to the appellant, as they would be subjected to the care of a male domestic servant, who had been, previously, alleged to have sexually abused one of the children. He added that, the issue of school distance from the respondent's house to the children's school, cannot, in itself, justify the appellant's argument that, the respondent should not be granted custody of her children. To support his proposition, he cited the case of Amri Yahaya Mftkilwa v. Fatuma Mohamed Nampembe, Civil Appeal No. 180 of 2022 [2025] TZCA 279. On the failure by the lower courts to request for social inquiry report and or take into account the recommendation of the social welfare officer who investigated on the alleged incident of sexual harassment to one of the daughters, he referred us to section 45 of the LCA and argued that, since the said section is couched in discretionary terms, the trial court had discretionary powers to do so or otherwise. He contended that, since in the instant appeal, there was sufficient evidence adduced by the parties including the allegations of sexual harassment to one of the said children, then, both lower courts were justified to arrive at that conclusion without the said report and or independent opinions of the children. He thus distinguished the case of the High Court's -Rajab Shaban Bwanga (supra) cited to us by Mr. Cheche contending that, the same is not binding on this Court and its facts are not applicable in the circumstances of this appeal. In conclusion and based on his submission, Mr. Chamba prayed for the entire appeal to be dismissed for lack of merit. In a brief rejoinder, Mr. Cheche reiterated what he submitted earlier and, once again, prayed for the appeal to be allowed. Having carefully considered the ground of appeal, the appellants written submission and the oral arguments for and against the appeal advanced by the learned counsel for the parties, the main issue for our determination is on whether it was proper for the second appellate court to deny the appellant the custody of the children. At the outset, we wish to state that, this being the second appeal, under normal circumstances, we would not interfere with concurrent findings of the lower courts, if there were no mis-directions or non directions on evidence. Where there are mis-directions or non-directions on the evidence, the Court is entitled to interfere and look at the evidence with a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. 10 We wish to begin with the point raised by Mr. Chamba pertaining issues of children's poor school development and or poor school performance of the last-born child urging us to disregard them because they are new and were not canvassed by the first appellate court. Having examined the record of appeal and specifically, the evidence adduced by the parties before the trial court, we readily agree with Mr. Chamba that, the said issues are new and should not have been raised at this stage. The record bears out that, at the trial, the main concern raised by the appellant, as a justification to deny the respondent the custody of her children, was the distance from where the respondent resides to the children's school. It is also on record that, at that time, the last-born child was yet to be enrolled in any school, as she was only a girl-child aged six (6) years. Therefore, these issues were neither raised nor determined by the trial court and the first appellate court. Pursuant to the provisions of section 6 (1) and (7) of the Appellate Jurisdiction Act, Cap. 141 of the Revised Laws, this Court is mandated to hear appeals from the High Court or court of the Resident Magistrate with extended jurisdiction on matters canvassed before them and determined by such courts. The Court has pronounced itself on that aspect in a number of cases. See for instance the cases of Abdul Athuman v. Republic [2004] TLR 151 and Joseph Ndyamukama v. ii N.I.C. Bank Tanzania Limited & 2 Others, Civil Appeal No. 239 of 2017 [2020] TZCA 1889. On that basis, we will not entertain those matters as they raise factual issues which were not canvassed and or decided upon by the first appellate court. As regards the issue of custody, it is a common knowledge that, issues of custody and maintenance of children are governed by sections 125 to 137 of the LMA read together with sections 4 (2), 26 (1) (2), 37 (4) to 44 of the LCA and Rule 73 (a) to (i) of the Law of the Child (Juvenile Court Procedure) Rules, GN. No. 182 of 2016 (the Juvenile Court Rules). In terms of the said provisions, in deciding in whose custody an infant should be placed, the paramount consideration shall be the best interest and welfare of the child. Where the best interest of the child lies, as between the father and the mother, is a question of fact, which can be determined based on the facts of each case and the evidence adduced by the parties before the trial court. In the instant appeal, the trial court, having considered the evidence adduced by the parties, was satisfied that, it was in the best interest of the children to stay with their mother. The trial court, at pages 141 to 142 of the record of appeal, stated that: "...I consider th e se x a n d age o f th o se ch ild re n . I t is n o t 'h e a lth y ' fo r th ose g irls w ho a re a t 12 fe m a le m a tu rity d evelo pm en t sta g e to s ta y w ith th e respondent. I am aware that the oniy ju stification given by the respondent is the distance from where the petitioner resides to the children's school. But the petitioner's assertion o f sexual harassm ent makes me cautious. In addition ; there is nowhere in the respondent's evidence that had been discredited the petitioner for not taking good care o f the children. Therefore , this court decides that for the interest o f those children the custody o f a ll three issues o f m arriage is vested to the petitioner ; "[Em phasis added]. Then, the first appellate court, having revisited the entire evidence on record, joined hand with the trial court that, the issues of marriage are better placed with their mother. In his own words, the learned High Court Judge, at pages 209 to 210 of the record of appeal, observed that: "...th ere w as now here th a t th e a p p e lla n t s ta te d th a t th e re sp o n d e n t is n o t a b le to care fo r th e ch ild re n ...h is concern w as th e d ista n ce th e ch ild re n have to tra v e l to sc h o o l a n d n o t a n y th in g else. W hile th is is n o t an issu e to b e taken lig h tly , it ca n n o t in its e lf d e n y th e re sp o n d e n t cu sto d y a s it can be cu re d w ith sim p le lo g is tic a l arran g em en ts a s p e r th e a p p e lla n t's testim on y, th e sc h o o l h a d o ffe re d su g g e stio n s on w h at can b e done. .. the appellant also com plained that there was no social Inquiry that was ordered so as to assist the tria l court in m aking its decision to place the children...Section 129 o f the LMA enjoins courts to have regard to the advice o f welfare officers, however, it goes on to state that failure to do so does not invalidate the proceedings...the Rules, at the tim e o f the conduct o f the tria l were stiff coached in discretionary term s...I am satisfied that the tria l court perform ed its ju d icia l duty o f analyzing the evidence > applying the iaw and com ing up with a decision." [Em phasis addedj. Having scrutinized the entire record of appeal before us, it is our settled view that there is nothing on record to suggest that there was misapprehension of facts or evidence by the courts below. We therefore see no justification to fault the findings of the learned High Court Judge. We need to emphasize that, the appellant being the father of the said children, is obliged under the law, to maintain them by providing food, shelter and other basic needs regardless of whether they are under his custody or the custody of their mother. See the cases of Amri Yahaya Mfikilwa (supra) and Nacky Esther Nyange (supra). Therefore, there is nothing on the record to warrant interfering with the concurrent 14 findings of the lower courts. We accordingly find the ground of appeal devoid of merit. Consequently, we find the appeal before us wanting in merit. We accordingly, hereby dismiss it in its entirety. Mindful of the fact that this is a matrimonial matter, we order each party to bear its own costs DATED at DODOMA this 6th day of May, 2026. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered virtually this 7th day of May, 2026 in the presence of Mr. Mukhtary Cheche, learned counsel for the Appellant, Mr. Hosea Chamba, learned counsel for the Respondent and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. 15