CIVIL APPEAL NO 27220 of 2023 Comfort Mndewa

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 27220 OF 2023 (Arising from the decision of The Resident Magistrate's Court of Dar es Saiaam at Kisutu in Matrimonial Cause No. 27 of2020) COMFORT ZENA MNDEWA............................................................. APPELLANT VERSUS EDWARD YATERA............................................................................ RESPONDENT JUDGMENT 10th June & 15th July 2024 BARTHY, J.: The appellant herein aggrieved with the decision of the Resident Magistrate Court of Kisutu (the trial court) vide Matrimonial Cause No. 27 of 2020, appealed to this court on the following grounds; 1. That, honourable trial Magistrate erred in law and fact for failure to analyse and evaluate evidences of both parties. 2. That, Honourable Trial Magistrate erred in law and fact by raising and analysing extraneous matter(s). 3. That, honourable Trial Magistrate erred in law and fact for rejecting evidences presented by the Appellant. i 4 That, honourable trial Magistrate erred in law and fact as he improperly and/or an afterthought allowed the recalling of a witness by the Respondent 5. That, Honourable trial Magistrate erred in law and fact in granting custody of issues to the Respondent without considering wishes of the issues regarding their custody. 6. That, honourable trial Magistrate erred in law and fact in ordering equal payment of maintenance costs by the Appellant and the respondent regarding the maintenance of the Children. 7. That, honourable trial Magistrate erred in law and in fact for being bias. 8. That, honourable trial Magistrate erred in law and in fact in granting 80% to the respondent and 20% to appellant without considering contribution of the appellant in acquisition ofjointly acquired matrimonial house at Kibada. Wherefore, the appellant prays for the appeal to be allowed, custody of the issues be given to the appellant, matrimonial house at Kibada be equally divided, cost of the appeal be provided for and any other reliefs this hounarable court deem(s) fit to grant. Before delving into the grounds of this appeal, a brief background of this matter is crucial for this court to adequately determine the present appeal. The parties to this matter were wife and husband respective who celebrated their Christian marriage on 29/05/2010. After twelve years of 2 marriage, the respondent herein petitioned for decree of divorce before the trial court, alleging infidelity, four years willful separation and each party accusing other to be the cause for their marital differences. The trial court upon hearing the matter issued the decree of divorce, custody of children the respondent, both parties were ordered to share the maintenance of children and the division of the matrimonial assets was ordered. The appellant aggrieved with the decision of the trial court, appealed to this court. In this matter, the hearing was conducted through written submissions, and both parties submitted their arguments on time. Mr. Shundu S. Mrutu, learned advocate for the appellant, abandoned grounds three and four of the appeal and focused on the remaining grounds. In his submission to the first ground he stated, the trial magistrate erred in law by failing to consider evidence properly, specifically leading to procedural and factual errors. Mr. Mrutu argued that the court must evaluate testimonies and evidence from both sides to make an informed decision. The trial court failed to determine if the marriage had broken down beyond repair, for not relying on evidence of cruelty. The appellant presented PF3 (exhibit D2), which was not considered in the judgment of 3 the trial court. Additionally, he stated the respondent created fear in the children, preventing them from visiting the appellant. Mr. Mrutu further contended that the court failed to analyze evidence on matrimonial properties. He argued that plots No. 715, 716, 717, 718, 719, and 720, were acquired during the subsistence of their marriage, which should be regarded as matrimonial properties due to the appellant's contribution. For further reference he cited the case of Joseph F. Mbwiliza vs Kobwa Mohamed Lyeseko Msukuma & Two Others (Leg a I Representative/Administratrix of the estate of the late Rashid Mohamed Lyeselo); Court of Appeal, Civil Appeal no. 227/2019 Submitting on the second ground, he argued that the trial magistrate raised and analysed extraneous matter(s), Mr. Mrutu insisted the trial magistrate did not engage a social welfare officer to investigate the best interests of the child. The court just formed an opinion on the potential influence of either parent on the children which was extraneous matter. The law mandates under section 39(2) (d) of the Law of Child Act, Cap 13. R.E 2019 (the Law of the Child), that the views of children capable of forming an independent opinion be considered, which the court failed to do. Adding that there was no inquiry report by welfare officer on the opinion who is the fit person to take care of the issues. 4 For the fifth ground, the appellant argued that the trial magistrate erred by granting custody to the respondent without considering the children's wishes, as mandated by section 125(2)(a)(b) of the Law of Marriage Act, Cap 29 R.E. 2019 (The Law of Marriage Act). The children, being over 7 years old, were capable of expressing their wishes. Mr. Mrutu on the sixth ground contended that the trial court incorrectly ordered equal maintenance payments of their issues contrary to the law, which primarily places the duty of child maintenance on the man. This legal position was supported by the case of Moses William Mlaqula vs, Veronica Celestine Mbuqa, High Court, Civil Appeal No. 60/2021 . On ground seven, it was stated that the records of the trial court indicate bias in determining the matter, as the trial magistrate solely gave weight to the testimony of the respondent while largely disregarding the testimony provided by the appellant. The court failed to analyze the evidence submitted by the appellant, particularly Exhibit D2 regarding the respondent's cruelty. Additionally, the court did not acknowledge the appellant's testimony that the respondent was creating fear and hatred in the children toward her, as reflected on pages 59 and 63 of the typed proceedings. 5 The court also failed to recognize the appellant's contribution toward the acquisition of the properties. On the eighth last ground, Mr. Mrutu argued that the trial court unfairly awarded 80% of the property to the respondent and 20% to her, without considering her contributions, such as paying school fees, medical bills, and handling family affairs. She also pointed out that her evidence of a joint loan for the Kibada house was unchallenged. Citing the case of Bi Hawa Mohamed vs. Ally Seif Civil [1983] TLR, 32 and section 114(l)(2)(b) of the Law of Marriage Act. The appellant prayed that the court equally divide the matrimonial house, grant her custody, and cover the appeal costs. Replying to the grounds raised, the respondent, through his written submission prepared by N.A & Partners (Advocates), stated on the first ground that the trial magistrate was well guided by law, principles, pleadings, evidence, and submissions made by respective advocates to conclude that the marriage was irreparably broken down due to adultery, which was not disputed by the appellant. The appellant, in her answer to the petition, also prayed for the divorce. It was therefore their argument that Exhibit D2 was not useful, as parties in a matrimonial dispute cannot be forced to live together. 6 Referring to the case of Tumaini N, Simoqa vs. Leonia Balenqa, Civil Appeal No. 117 of 2022 Court of Appeal. The claim that the respondent was creating fear for the children was not supported by any evidence. Regarding the issue of custody, they contended that the court considered the welfare and best interest of the children, as seen on page 10 of the typed judgment. Additionally, regarding Plots No. 715, 716, 717, 718, 719, and 720 they were determined to be the respondent's personal properties, similar to the 48 plots located at Chekeni Mwasonga Kigamboni, which were tdetermined to be the appellant's personal properties (Exhibit D-5 collectively). Therefore, it was the contention from respondent's side that the appellant did not testify about her contribution towards these properties. It was an afterthought to claim that she contributed through her efforts in feeding the family, paying school fees, medical expenses, and loan facilities, all of which were disputed by the respondent. Resisting the second ground, the respondent argued that the trial magistrate correctly noted that the appellant had relationship with another man and had a child with him. Granting her custody would expose the children to a step-father whose cultural values and ethics might ----- negatively impact them.-------------------------------------------- q zj 7 On the fifth ground, it was argued that the trial magistrate did not err in granting custody to the respondent without considering the children's wishes. The counsel for the appellant misconstrued the law, specifically section 125(2)(a)(b) of the Law of Marriage Act, which does not mandate the court to follow the child's wishes. The primary consideration is the welfare of the child, which was thoroughly addressed in the judgment. Additionally, neither party wished for the children to be called to court to express their preferences. On ground six, the court erred in law by ordering equal contribution for maintenance. It was submitted that, in the court's proceedings on page 60, the appellant requested a 50% share of the maintenance, and if the respondent is unable to contribute, she would take it on herself. On ground seven, the trial magistrate was accused of bias in law and fact. The counsel argued that judicial officers take an oath to administer justice impartially and without fear, favor, affection, or ill will. A judge's or magistrate's opinion based on facts introduced or events occurring during proceedings does not constitute bias. A failure to analyze evidence does not indicate bias. On the eighth ground, regarding the division of 20% to the appellant and 80% to the respondent, it was argued that the respondent provided evidence of jointly obtaining a house loan of TSh. 120,000,000 with the 8 appellant while they were working at Barclays Bank. Although the loan application was joint, it is the respondent's account which is currently servicing the loan. It was contended that the appellant only paid 14 million and then stopped servicing the loan. Exhibits P7, P8, Pll, and P12, as well as testimonies of nine witnesses, were referenced. The house is still under mortgage, with a monthly deduction of Tsh. 1,129,046/= from the respondent's salary, and there is an unpaid balance of Tsh. 78,000,000, indicating the house is not fully paid for. Considering the extent of contribution, the trial court did not err, and this court should find the appeal without merit and dismiss it. In the rejoinder, Mr. Mrutu briefly stated that the trial court's failure to analyze exhibit D2, meant the court failed to discharge its duties. He further reiterated his previous submission which I will not reproduce it. Having gone through the submissions from both sides regarding the present appeal, this court must now determine whether this appeal has merit. In the current appeal, the appellant raised a total of eight grounds but abandoned the third and fourth grounds of appeal, which this court will not address. I will begin my deliberation by examining ground seven, in the issue whether the trial magistrate exhibited bias in determining the ----- 9 J matter. With regard to this issue, Mr. Mrutu, argued that the trial magistrate did not give due weight to or properly analyze the appellant's evidence, thereby showing clear bias. In response, the counsel for the respondent argued that the opinion formed by the trial court should not be interpreted as bias. Regarding this ground, the Code of Conduct for Judicial Officers of Government Notice No. 1001 of 2020 (to be referred as the Code of Conduct) under Rule 6(1), it requires judicial officers to ensure that in their conduct, both in and out of court, maintains and enhances confidence in the impartiality of the judiciary. If a judicial officer finds themselves unable to be impartial, Rule 9 of the Code of Conduct requires them to disqualify themselves. The relevant rule is quoted below for easy reference: A judicial officer shall disqualify himself in any case in which thatjudicial officer: (a) believes he will be unable to adjudicate impartially; (b) believes that a reasonable, fair minded and informed person, would have a reasonable suspicion of conflict between a judicial officer's personal interest or that of a judicial officer's immediate family and his judicial functions; (c) has a personal bias or prejudice concerning a party or personal knowledge or facts (d) served as a lawyer in a matter in controversy or a lawyer with whom he previously practised iavv^ served io during such association as a lawyer concerning the matter or the judicial officer or such lawyer has been a material witness in the matter". Examining Rule 9, as quoted above, it does not suggest that accusations of failing to analyze evidence or give appropriate weight to evidence presented in court amount to bias by a judicial officer. Based on the evidence and arguments presented, I did not detect any form of bias or inclination to show prejudice towards the appellant. Therefore, I find this ground without merit. I will now address the second ground of appeal, which will be addressed in the issue whether the trial court decided the matter based on extraneous considerations and reached an incorrect conclusion. The trial court has a duty to evaluate the evidence of each witness and make findings on the issues framed. This principle was emphasized in the case of Paulina Samson Ndawavya vs. Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) Court of Appeal at Mwanza [2019] TZCA 453. Mr. Mrutu argued that the failure to consider the evidence constitutes a procedural and factual error. Conversely, the counsel for the respondent asserted that the appellant did not dispute the issuance of a divorce decree. Regarding custody, the court considered the welfare of the children. Concerning the division of assets, the appellant did not provide any evidence to prove her contribution to the acquisition of those assets. ii It is evident that both parties presented their evidence during the trial. The respondent claimed that the appellant had fathered a child outside their marriage, among other allegations, which clearly indicated that their once loving relationship had deteriorated. Having heard the opposing evidence, the trial court framed the issue as whether the marriage between the petitioner and the respondent had broken down irreparably. Upon scrutinizing the evidence presented, the trial court made its findings, as documented on page 7 of the court record stated; "The respondent does not object the divorce as she also prays for the same in her prayers. This is conclusive evidence that love no longer exist among them. As rightly submitted in the final submissions by the counsels for the parties respectively citing the case of Tumaini N. Simoga vs. Leonia Tumaini Baienga, Civil Appeal No. 117 of2022, CAT at Morogoro where it cited in approval the HC decision in the case of John David Mayengo vs. Catherian Malembeka, PC Civil Appeal No. 32 of2003 in which it was held; "Marriage being a voluntary union ofa man and woman intended to last for their joint lives. It is the parties themselves who are the best judges on what is going on in theirjoint lives. As crucial ingredient is love. Once it disappears then the marriage is in trouble. There is no magic one can do to make the party who hates the other to love her or him. "In equally find that in the 12 circumstances the marriage at hand is broken down irreparably" [Emphasis is supplied]. The evidence presented by both parties indicated that their marriage had irreparably broken down due to infidelity, prolonged willful separation, and the absence of mutual affection. The court, having determined the marriage was irreparably broken, proceeded to issue ancillary reliefs concerning custody, maintenance, and the distribution of matrimonial assets. The records of the case clearly show that the trial court, on pages 10 to 12, provided a thorough analysis of the issues of custody and maintenance for the two children, detailing the reasons for its determinations. Regarding the distribution of matrimonial assets, the trial magistrate's analysis is documented on pages 14 through 19, where he identified the matrimonial assets, assessed the extent of each party's contribution, and provided reasons for the ordered distribution. In this regard, the court finds that the trial court sufficiently analyzed the evidence from both sides, addressed the framed issues, and provided a reasoned decision. Therefore, this ground of appeal lacks merit and is dismissed. Turning to the fifth ground, this court must determine whether the trial magistrate erred in law and fact by granting custody to the 13 respondent without considering the children's wishes regarding their custody. When deciding on child custody, the paramount consideration is the welfare of the child. Subject to this consideration, section 125(2)(b) of the Law of Marriage Act requires that the wishes of the child be considered, provided the child is of an age capable of expressing an independent opinion. This provision imposes a mandatory obligation on the court to consider the wishes of the child, as stated in section 125(2)(b) of the Law of Marriage Act which provides; "(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 (a)N/A (b) the wishes of the child, where he or she is of an age to express an independent opinion". [Emphasis is supplied]. Additionally, Section 39(2) of the Law of the Child, stipulates that the court must consider the best interests of the child and the importance of the child being with his or her mother when making an order for custody or access. The court must also regard the views of the child if these views have been independently given, as emphasized in Section 39(2)(d) of the same law. f] 14 From these provisions, it is clear that while the views of a child or children who have attained the age to express an independent opinion must be considered in considering the welfare of the said child. Thus, courts are obligated to consider the independent views or opinions of children, especially regarding matters affecting their well­ being, as a matter of law. In the judgment, the trial magistrate noted on page 11 that the children in question were born on 08/10/2010 and 02/11/2012, making them both over seven years old. The magistrate further observed that these children are of an age where they can express their independent opinions regarding their custody. The magistrate's failure to document how the children's views were solicited and considered in the decision-making process raises concerns about whether the statutory requirements were fully adhered to in this case. The trial court stated that: "In the evident stiff antagonistic environment in which the children live with their parents, I apprehend the danger of the children being influenced by either parent if I undertake to seek their opinion on whom they would like to stay with. "[Emphasis is supplied]. From this statement, it is evident that the trial magistrate did not comply with the legal requirements to seek the independent opinion of the children regarding their custody. The magistrate's personal concerns 15 overshadowed the legal mandate, also neglecting the involvement of Social Welfare Officers and failing to seek an inquiry report to assist the court in its findings. Having observed that the trial court issued the custody order without obtaining the children's opinions, this oversight undermines the court's decision on the custody of the children. Therefore, this ground has merit. Given the nature of this matter, I find that this ground is sufficient to resolve the entire appeal without addressing the remaining grounds. Consequently, I find that the appeal has partly succeeded. I hereby order that the file be remitted back to the trial court to ensure that the proper procedures for granting custody are followed in accordance with the requirements of the law. It is so ordered. Dated at Temeke this 15th day of July, 2024.