Bilali Ismail vs Agness Shayo (PC Civil Appeal No. 66 of 1997) [1998] TZHC 2135 (7 August 1998)

IN THE HIGH COUd.T OF TAN:lAhIA DAR ES SALAAI'il DISTRICT REGISTRY AT DAR ES SALAAI'-i FC. CIVIL AFFEAL NO. 66 OF 1997 BILALI IShAIL ••oo•ooooeoooooooooooooeoooooo AGNESS SHAYO •••••••ooeoooooooo.:1oooooe•ooee J U D G E ! 11 1 E N T BUBESHI, J: AE FELLANT RESPONDENT on 29/3/96 the marriage between the appellant and the respondent was declared dissolved by the.Primary Court 1 11 1orogoro Urban, The court further ordered trie appellant to pay Shs.50,000/= so·as to legitimise the two children born' during c;:;habi ta.ti or:.. A further sum of Shs.3,000/= per month per child was ordered as maintenance for the period when te co1u.Ple remained separc\ted till the day of judgment and some TShs.5,000/=· per childper month,for each child till they reach the age of 7 years when the appelJ?nt WQs given th0 -oPtion to ±::kc them in his custody. Arrl/ the a:i;::.pellant is DQt able to maintain the children~ . the latter were to ramain with their mother, with the appeliant paying maintenance as ordered'• The appellant was aggrieved and appealed to the District Court. 'Ehe first appellate court upheld' the trial court's decision. '.1 1 he appellant, undaunted, has filed this second apJ;.eal.. He has filed some ' 8 grou·ncts of appeal. These ·in the main are those that wt.re canvassed at the first appeal and all centre on the issue of the maintenance orders~ The respon:lent was duly served but ,did not make court •aPPiarance-and the court proceeded to hear the· appellant's appeal. No new grounds \Jere. added and the ar,pellant opted .to leave the court decide the appeal on ~ the merits of the f ilea. memorandum of appeal. Was the trial court justified in ordering the appellant to pay arrears of maintenance at the rate of Shs.3,000/= per month - total Sh.-s·.ioo,soo/= per y22r I have perused the trial court·• s record· but i;io where is it indicated that the trial court investigated the appellant's income so as to justi_:fy the amount ordered~ •..... /2 .,

... • -., I ,' 2 - In other words, was Shs.3,000/= per month per child an amount that could be paid by the ap:pellant? However, I note also from the record th:1t parties having agreed to pay arrears of maintenance for 3 years to the tune of Shsl00,800/= I think the amount ordered cannot b trmc,d excessive, taking into account the value of our TShilling a.sit is todayo I would leave the sum of Shs.100,800/= undisturbed. As for the mainter0nce of Shs.10,000/= for both children from 4th April, 1996; this also is not excessive in my view. When the children reach the ages of 7 years, the appellant may apply to the court to have the issue of custody of the children reviewed, and in particular to have the children under his custody i.f he ,. so wishes. The children will have to be interviawed to find out where they would wish to stay. In the premises I an1 satisfied that the orders -made by the trial court are proper and I uphold them. The ar)peal filed is hereby dismissed. , ,-, j /--ili' ,, (; ( ' i - I ' t f / ~.£,;J __ (l/v/'-.. Delivered before A.G. BUBESHI the appellant. JUDGE 7/8/98