20171130 TZHC Dar es Salaam

"~L ., F ~ •· - .. ' ' f ~ , ""' , • • • •••• l.' A IN TI-JE HIGH.COURT Of TANZANIA DAR ES SALAAM DISTRICT REGISTRY · AT DAR ES SALAAM CIVIL APPEAL NO. 71 OF 2017 · (Appeal from the Ruling and order of the Juvenile Court of Dar es Salaam in Misc. Civil Application No. 113 of 2016, dated on z;th February, 2017 by Honourable Kisoka RM) VIVI OBED MACHANGE .................................APPELLANT ·' VERSUS MEENDA GEORGE MALLYA ............................ RESPONDENT JUDGMENT MURUKE, J. Way back in 2007, the appellant and respondent. celebrated a Christ\an marriage at Shiri Moshi, then started living together as husband and wife. The marriage was blessed with two children Alan and Ian. Unfortunately there were misunderstandings between the appellant and respondent. Appellant alleges being. beaten by the respondent several times and abused before the public and in front of children. After realizing her life was in danger, the appellant decided to flee from the matrimonial house and went to her _sister at Tabata. Respondent forceful -~ ·,..., managed to restrain the children. Later appellant managed to 1 •-":"'w.,.. ~f••-·, • ·•.• , I~ rent the house at Kimara where she is living todate. She has opened a shop at Sinza which earns her a living. Having settled at Kimara, the appellant herein knocked the door of the trial court seeking for custody of the children and maintenance. At the trial court, her application was refused, contrary to her expectations, and respondent was granted custody of the two issues of marriage. ( Being dissatisfied, appellant filed five ground of appeal before this court. On the hearing date appellant was represented by Mr. Sanga, while respondent was being represented by Mr. Kamugisha, learned advocate. By consent of both parties, hearing was conducted by way of written submission. In the cause of submission appellant abandoned ground two and five and consolidated ground one and four. Therefore court will address on two grounds namely consolidated ground (1 & 4) and ground three of memorandum of appeal. Consolidated ground read as follows:- The trial Magistrate erred in law and fact in ordering custody of the child aged 6 years old one Alan Meenda Mallya to the respondent while in fact the law requires the child below 7 years old should be placed under the custody of the mother . 2 ... ' AND that the trial magistrate erred in law and fact for granting the custody of Ian Meenda Mallya aged 8 years old and Alan Meenda Mallya aged 6 years old to the respondent without any tangible reason as required by law. Before proceedings with determination of the appeal it is worth highlighting some fundamental principles relating to the custody of the child. In principle, one of the paramount considerations for granting the order of custody of the child is "the best interest of the child'. This has been the rationale behind The Law of the Child Act, 2009. The issue of custody is not only accommodated by the Law of the Child Act, 2009, but it is also featured in the Law of marriage Act, Cap. 29, in particular Section 125 (3) of the Law of the Law of Marriage Act, Cap. 29 which read as follows: There shall be a rebuttable presumption that it is for the good of an infant below the age of seven (7) years to be with his or her mother and that where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently. 3 It is also the position of the law that, the child below 13 years old should be placed to the mother. It is also clear under the common law doctrine that during a child's tender years, generally, regarded as the age of thirteen and under, mother should have custody of the child. At tender years mothers, are more knowledgeable to the child's attitude and therefore responsible. This has been held recently in CIVIL APPEAL NO. 79 OF 2013 BETWEEN ROSEMARY STELLA CHAMBER JAIRO VERSUS DAVID KITUNGU JAIRO, (unreported) where this court held that, "Apart from considering best interest of the child, court also considers tender years doctrine before granting custody of issues of marriage. The tender years doctrine is a common law doctrine which presumes that during a child's tender years generally, regarded as the age of thirteen and under, mother should have custody of the child. At the tender years mothers are more knowledgeable to the child's altitude and therefore responsible". The above position is also very clear in our country. Court of Appeal of Tanzania several occasions has held in that regard, that, the child below the age of 7 years should be placed under 4 . the custody of the mother. In the case of RAM ESH RAJ PUT VERSUS MRS. SUNANDA RAJPUT, 1988 {T.L.R.) 96 whereby the court of Appeal had this to say,: "An infant of two (sic) should be with mother unless there are very strong reason to the contrary. In the present circumstances of this case no strong reasons have been advanced to rebut presumption that an infant below the age of seven years was not supportable on any evidence". In a recent decision delivered by this court in CIVIL APPEAL NO. 79 OF 2013 BETWEEN ROSEMAY STELLA CHAMBE JAIRO VERSUS DAVID KITUNDU JAIRO in which Placed the child aged 13 years old to the mother by considering tender years doctrine, and at page 16 of the cited case, the court had this to say:- "The trial court would have evaluated evidence before it to see under whose custody welfare of the children demands to be placed. In the instant case, I think the wife appellant should be given custody of the two issues of marriage and respondent should be given visitation rights. Also in another case of HALIMA KAHEMA VERSUS JAYANTILAL G. KARIA. (1987) T.L.R 147 laid a principle that the younger the 5 I child the harder it is to rebut that presumption Mwalusanya, J. (as he then was) held that: "The rebuttable presumption under section 125 (3) of the Act, that it is for the good of the child to be with mother, implies that the younger the child, the harder it is to rebut that presumption". Appellant counsel Mr. Dickson Sanga while refering cases, and position of the law, insisted on the consolidated ground that, throughout the ruling by the trial court that there are no strong reasons which rebut the aforesaid presumption. In the counter affidavit of the respondent, for instance, he stated that, the appellant did not demonstrate how she would raise the children by showing her source of income. Mr. Sanga for the appellant argued that, economic status of the appellant is not a ground for placing the child under seven years old to the father. Learned counsel referred this court to the holding in the case of GETRUED B. MWOMBERA VERSUS ELIAS JOHN ANYNDWILE, High Court Tanzania at Dar es Salaam, Civil Appeal No. 6 of 2001 (unreported) whereby Kimaro J, as then was high court Judge held that:- "Regarding the question of custody of children it was wrong for the trial magistrate to put into 6 consideration the economic ability of the parties as a primary factor in determining the issue of custody. According to Section 125 of the Law of Marriage Act, 1971, what becomes a paramount consideration is the welfare of the children under whose custody will the child progress well in terms of care, love and affection, needs, etc. The mere fact that the spouse has no formal employment is not conclusive that she/he is unsuitable to have custody of the children. The totality of all matters which go with the welfare principle should be taken into consideration before a magistrate makes a determination on who should be given custody of the issue of marriage". Appellant counsel submitted that, it is the duty of the trial court to evaluate properly the evidences tendered before it. Citing the case of East Africa Court of Appeal, in the case of Bugumisa and Others versus Tibabega (2004) 2 E.A. 17 where the court had this to say:- 'it is the duty of the court to evaluate the evidences properly tendered before it" Appellant counsel insisted despite such duty, being very clear, the trial court did not properly evaluate the evidences before it. He 7 • therefore prayed to this court to re-evaluate the evidences properly. Respondent counsel Mr. Kamugisha submitted that the laws governing custody of children in Tanzania are the Law of Marriage Act, Cap. 29, the Law of the Child Act, 2009 and Case Laws. Apart from law cited, in determining issue of custody, rule 73 of the Law of the Child (Juvenile Court Procedure) Rules, 2014 (hereinafter referred to as "the Rules'1 is - important. As correctly submitted by Mr. Kamugisha in determining whether to make custody or accuses order, the court may consider in addition:- (i) The ascertainable wishes and feeling of the child. (ii) The child's physical, emotional and educational needs. (iii) Undesirability of disturbing the life of the child by changes of custody. (iv) The likely effect on the child of a changed of circumstances. (v) How capable each parent ..... is of meeting the child's need. (vi) Any harm the child has suffered or is likely to suffer. 8 • (vii) The willingness of each parent to support or facilitate the child's on-going relationship with the other parent. Section 39(1) of the Law of the Child Act, 2009 provides that the court shall consider the best interest of the child and the importance of a child being with his mother when making an order for custody. (2) Subject subsection 1 the court shall also consider; (a) the rights of the child under section 26 (b) the age and sex of the child ( c) ........................... . (d) ........................... . (e) That it is desirable to keep siblings together (f) The need for continuity in the care and control of the child. (g) Any other matter that the court may consider relevant" "Section 26 (1) of the law of the Child Act read that a child shall have a right to:- .(i) Maintenance and education of the quality he enjoyed immediately before his parents were separated. 9 (ii) Live with a parent who, in the opinion of the court is capable of raising and maintaining the child in the best interest of the child. (iii) Visit and stay with the parent whenever he des.ires unless such arrangement interferes with his school or training programme. (2) There shall be a rebuttable presumption that it is in the best interest of a child below the age of 7 years to be with his mother but in deciding whether that presumption applies to the facts of anv particular case, the court shall have regard to the undesirabilitv of disturbing the life of the child bv changes of custodv'~ Section 26(2) of the Act is inpari material with Section 125(3) of the Law of Marriage Act, Cap. 29. This .court having considered submissions by both parties, and before resolving issue raised in the appeal, it is worth, reminding appellant and respondent (parents) on their obligation and responsibility that:- The purpose of new concept in the law of the child act is to make clear that being a parent creates responsibilities rather than rights, and hence that these responsibilities exist whatever the state of the parents' relationship with each other. It is intended to discourage 10 parents from fighting about their 'rights' over their children and to emphasise the view that each will retain a {shared} continuing responsibility for the children. It is important to note that where more than one person has parental responsibility for a child each of them is given power to act alone unless each person with parental responsibility is by law required to give his or her consent, for example, for adoption. Parental responsibility can be shared by a range of people and with a local authority where the child is in care. Law of Marriage Act Cap. 29, and case law stipulate that, the court should have regard to the child's welfare as the paramount consideration when determining any question relating to the child's upbringing or the administration of the child's property. The welfare principle is made subject to the general non- interventionist principle that the court shall not make the order or any order unless it considers that doing so would be better for the child than making no order at all. This means that the court must be assured that there is actually some benefit to the child in making the order sought. Before enactment of the law of the child, the only guidance on the application of the welfare principle was to be found in the case law. The new legislation provides a list of circumstances to 11 • which the court is directed to have particular regard when considering whether or not to order custody or when deciding whether or not to make, vary, or discharge a care, or supervision order. These include: (a) The ascertained wishes of the child, subject to the age of the child (i.e. what the child has said he or she wants to happen, if he or she is considered old enough or mature enough to reach such a decision). (b) The child's physical, emotional and educational needs (i.e., who can best provide for all the needs of the child). Issues such as with whom the child has a bonded relationship, the impact which an order is likely to have on the child's sense of security and the importance of maintaining the status quo are of importance here. (c) The likely effect of any change in the circumstances (e.g., if another adult is to be introduced into the child's life because one parent is to remarry or cohabit with someone new a move to new accommodation or to a new school etc.). (d) The age, sex, background and any other characteristics of the child which the court thinks relevant. It is often said that very young children and pubescent girls need their mothers most whilst growing boys need their fathers, although such views are not invariable principles. Other issues which may be relevant here relate to bringing up a child in circumstances that could be said to be slightly unusual and hence which might potentially 12 affect the child's welfare, for example, where a parent belongs to a religious cult group or is a scientologist, or, where grandparents are seeking a custody, their age may be a relevant consideration. (e) Any harm which has been suffered or of which there is a risk ( e.g., where a child has been neglected or physically or sexually abused or it is feared that there is a risk of such abuse). (f) The ability of the parents or other relevant people to meet the child's needs (e.g., where the adult carer suffers from some disability which affects the care which he or she can offer this will be a relevant consideration). (g) The range of powers available to the court in the proceedings (i.e. whether it is right for the court to exercise its powers in a particular way). A failure by the court in reaching a decision to run through the checklist above, may make it easier, for a dissatisfied party to appeal against the decision made, on the grounds that the magistrate below was 'plainly wrong' as was held in the case of M vs M [1987] 2 FLR 146. This court had an opportunity to go through the affidavit in support of the chamber application for custody, filed on 10th October, 2016, particular under paragraph 4, the appellant averred inter alia that: 13 11. The respondent is a businessman who is always away, he cannot therefore have enough time to look for the children. iii. The respondent's previous acts of failure to check and make follow up of the children's school development both at home and at school, proves that the Respondent herein is incapable to handle the children. Iv. The respondent's behaviour of having sexual relationship with other women expose the children to immoral behaviour and affect the children psychologically. In response to the above allegation respondent, Meenda George Mallya in the counter affidavit filed at the trial court averred that:- 12. That as regards to the contents of paragraph 11 of the Affidavit, I wish to state that the applicant picked the children from my home to the stated school bonanza and dropped off them at home after the school bonanza. The applicant with the children visited my parents on the same day at Mbezi before dropping off the children at home. The contents of paragraph 11 of the affidavit are denied. I will rely on the test messages from the applicant which are hereto attached and marked annexture "MKB-1". 14 13. That as regards to the contents of paragraph 12 of the affidavit, I sate that I did not wish my children to go to the National Park because of their age and my fear following a story of the French tourist's seven (7) year old son who was attacked and killed by the Leopard at Tarangire National Park in 2005. I hereto attach and mark annexture "NKB-2" copy of printed paper explaining about the incident. 14. That the grounds sated in paragraph 13 of the affidavit are denied and the applicant is put to strict proof of each and every stated ground. Further, I state that the applicant should not be allowed to stay with the children due to the following reason:- (a) The applicant left the children for over one year since May, 2015 with no justifiable reasons, without a word or any sense of a caring mother. The applicant used to leave children with me on several occasions in the past and stayed out of the matrimonial home. (b) The applicant has no capability of rising and maintaining children, she has not demonstrated how she will raise the children by showing her source of income. Would only depend on what I may contribute to maintain 15 ------• -• -•- _T _ _ _ - - - • • - ~ - ~ - - ••----•- ~~ - --- - -~--~ - --•- •••- ••- ••" - ~ - • - • - - them. I have solely raised and maintained children for the whole period before and after she fled the house. ( c) Change of custody will disturb the life of children because the children will be forced to move from the home where they have stayed throughout their life to the rented rooms somewhere at Kimara. ( d) The applicant will disrupt the children education system since she has not shown how she will keep the children school continuity with quality which they are currently enjoying while in my custody. (e) The applicant has failed to show how she is capable of maintaining children apart from depending on me Having evaluated the evidence as requested by the appellant, I have failed to defer from the finding of the trial court. While I appreciate and agree with Mr. Sanga that tender years doctrine has been well discussed in the famous case of Jairo, (supra) but the case at hand is different from the fact of Jairo case. In the cause of hearing of this appeal, I have noted with serious concerns following issue one, the age of issue of marriage subject for custody. Two, the complaint of improper uniform by the issue of marriage raised by the mother, Vivian Machange. Three, the averments that the father (respondent) as a business 16 ,._ man travels a lot. That averment has not been contradicted thoughts proceedings. Four, In the counter affidavit by the respondent in cause of hearing at the trial court, it is not started apart from the father, whether there is someone else to take care of the two issues on daily basis. Five, appellants (mother) resides at Kimara and work for gain at Sinza while issues of marriage schools at Mikocheni. From the observation above, it is very easy for the mother, Vivian Machange to make follow up of her two children daily appearance and affairs often. This not only to ensure the two children are not appearing undesirable before the school community, but also for their wellbeing as children of tender age, duly protected by tender years doctrine. In the civil revision number 25 of 2012 of this registry between Mwadada Bwambo Vs Adam Mayungu, (unreported) argument arose that the mother, has left the matrimonial home, on her own, and she cannot be given custody of the issues. And furthermore, there are enough maids to take care of the issues of marriage who were three, six and nine years by them. This court seriously said. I hereby quote. The averment by respondent that issues of marriage are taken care by her 1st daughter and 17 -···----- two maids without mentioning even the age of his 1st daughter is surprising. Tender years doctrine demand best interest of the child are best served by being with its mother. Biologically there is a strong relationship between the mother and the child. According to welfar~ checklist, mother is well placed to understand the altitude of the child and she can respond according to --~ __ ----~----- __ch_ild demonstrc1tions. Unlike otb_ers, J>cJJ~ents_ ha(t_~-----~- biological connectivity that creates more awareness of child problems. Therefore whatever numbers of maids available to take care of the child, cannot replace mothers care at tender years (generally regarded as the age thirteen and under) of which issues subject of this dispute a re of that age. According to the records at hand, the two children have lived with the respondent in the absence of the appellant todate. Changes of custody would disturb the children considering their age. This is in accordance with Section 26(2) of the Act and Rule 73 (d) of the rules which together require the court to have regard to the undesirability of disturbing the life of the child by changes of custody. 18 From the circumstance of this case, it will be not for best interest of the issue to move from their family house, where they used to live. Thus the two grounds lack merits. However close attention and attendance of their mother is necessary in view of their age. Thus, together with orders issued by trial court, following orders are of necessity. (i) Visitation rights given to the appellant by the trial court are further extended to covers, week days, twice in a week, to ensure the following: (a) School uniforms are properly arranged and kept. (b) Issues have done all the home work given by respective subject teachers. ( c) Smooth administration of all child affairs, including but not limited to specific time to watch TV, playing, and prayers. Accordingly appeal dismissed. Bearing the circumstances of this case, each part to bear own costs. Z. G. JUDGE 30/11/2017 19 Judgment delivered in the presence of appellant in person and in ____ :_tb.e .absence of -respondent:- _ ._ ---==-- --=---=-:__·~=- --=-....::~- ---==-:-:.~.::.:-:--_-_--:--_-_-_-=- :-:-..:.-=----=----=-.:.:.---=.:---=- ---z~----=G. Mu riil<e~- JUDGE 30/11/2017 20