NA TZHC Dar es Salaam15

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IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAi'-1 CIVIL A.PPEAL rm.80/95 (Original Kisutu Resident Magistrate's Court Matr. Case No.38 of 1993) \ FARES MUNEMA ........ .. APPELLANT

VERSUS ASHA MUHEMA. . . . . . . . RESPONDENT ,JUDGEMENT KATJEGRYA, .J: The Appellant, Dr. Fares Munerna, and the Respondent, Asha Munema contracted a civil marriage on 31st December 1976 at the Kinondoni Area Commissioner's office. They were blessed with three childrei; Nora, Laura and Furaha (although the· Respondent disputes paternity of the latter). By 1984 the family ties had been let loose, for, vide Matrimonial cause No.83 of 1984 a judicial Separation was ordered. That was on 3/4/85. The Respondent was granted custody of the children. Nine(9) years later, the Respondent petitioned for divorce and custody of the children. The marriage was dissolved on 21/11/94. As the court wanted to satisfy itself as to the wishes and interests of the dhildren it arranged and interviewed them. Thereafter it ruled I \Ofi 3 /L./~'J , " 'Or) that their custody should not b~ disturbed, they were ordered to remain under the Petitioner's custody. The Appellant could not stomach this. He came to this court, challenging the trial court's decision jn a Jong memorandum which substantially 2 refers to irrelevant matters but which can be zeroed to the following, that the trial court erred, in holding that marriage had irreperably broken down; in relying on fabricated evidence, and in awarding custody of the children to Respondent without affording him chance to talk to them. Mr Kisusi, Advocate,

advocated for Respondent while Appellant had it on his own. The appellant insisted that the trial court was wrong in ' ordering for the dissolution of their marriage without sufficient evidence of break-up, and ordering custody of children without considering their (children) health implications. He argued that if put under his custody he would bring them up in a perfect way. In respons~, Mr Kisusi countered by saying that the appeal was incompetent for not having been accompanied by a decree as per the provisions of 0.39, R 1, CPC (cited Kotak Ltd vs Ksoverji ( ""6""'' .1.. ::1 I j ...., r,;,. .. 348; Farougue vs Jerraji (1970) HCD 23; sing saw Mill Vs Mtwara Mikindani Town council 91972) HCD 72); and, in the· alternative he stressed that appellant had failed to adduce reasons which could entitle this court to reverse the trial court's decision; that a 9 year period of Separation is enough proof of irreperability of a marriage; that after the decree for divorce was issued the Respondent got married, and that the court having interviewed the children decided that it was in their best I 3 interests to be placed under the Respondent's custody. In reply the Appellant said that he was not a.ware of. the alleged marriage by Respondent; that if they are to re-unite they must undergo HIV test, that his children love him very much and that the Separation had been caused by external

force. Having carefully gone through the record and the parties' submissions I can only say that this appeal has no merits at all. The trial court's record (proceedings and judgement) portlay the learned PRM painstakingly taking all necessary precaution, first, to allow each party to state his/her part of the story i.e. allowing a party to rumble into the 1983 case proceedings which were not subject of the petition at hand. Not only that taking the trouble of interviewing the children who were said to be aged 16, 14 and 8 years. As rightly analysed by the trial court and argued by Mr Kisusi, it would sturn one's mind if it were to be argued that the fabrics of a marriage would still be intact after a nine year period of Separation! Even the legislature, in its wisdom, found 3 years enough a period for the presumption that marriage has irreperably broken down. S.107 of the Law of Marriage Act prescribes, "107(2) without prejudice to the generality .c OL l t· suJsec·ion ' i1 ) , 'h \ c e cour t may accep t any one or more of the following matters as evidence that a marriage has broken down but . ) ,-·- ..... -~ ....... 4 t proof of any such matter shall not entitle a ,•I party as of right to a decree - a) . . . . . . . . . . . . . . . b) . . . . . . . . . . . . . . . l r C) ....•..•.. • .. • .• d) ......• ·....... . f) , voluntary Separation or Separation by decree of the court,

where it has continued for at least three years." That ~part, the petitioner vowed that the marriage was no longer in existence meaning that she was not ready, under any circumstances, to resume cohabitation under the matrimonial home. That being the case no power on earth would force her to remaih (j under the union she no longer recognizes. It is not of less significance also that the Appellant himself, though insisting that the marriage had not broken down, put HIV testing for both of them as one of the pre-conditions for re-uniting With Respondent. As I had an occasion to observe in the case of ,Josephine Thomas Vs Balinaawe M:wambunqu ( HC) Civil appeal No. 21 of 1996 (Dsm Registry, unreported), "if on~ of th~ party's conduct and declaration establish on a balance of probability that he, or she, can longer accept living within the matrimonial home the marriage should be held to have broken down, and, irreparably. To decide otherwise, as we usually l witness lower courts (especially primary f court) reacting in obvious situations, when for example, a husband or wife declares in the face of· the Magistrate that under no circumstances can she return to the matrimonial home, or accept back the wife into the matrimonial home, is doing more harm than good, and may encourage violence, torture and even loss of life. I should reiterate that this special union should not be forced

upon people by whatever power. We can only try to reconcile and mend the same I \ ,I with parties' consent - that is the most we can do." On the evidence on record therefore the trial court was fully justifieq to conclude, contrary to Appellant's wishes, that the marriage between the two had irreparably broken down. Regarding his attack on the order for custody of children, likewise, the trial court's decision cannot be faulted at all. The court considered the best interests of the children and did not wildly arrive at the decision it made as contended by Appellant. It considered various factors including - the fact 6 that for 9 years they had been under their mother's custody as a result of which, in the absence of negative changes in the surrounding circumstances an abrupt change of custody would disrupt their lives; that the Appellant was no longer in services and his income was unknown as admitted by himself . The court went further and interviewed the children (aged) 16, 14 and 8) in f compliance with S.125(1) (2) of the Law of Marriage Act and each one of them is on record as wishing to live with the Respondent. On income and accommodation it is on record that the Respondent a is Headmistress earning enough to maintain the children.while the Appellant has no known regular j_ncome: he is retired and his pension which seemed to have attracted some problems was not yet paid,

and above all he was still occupying his ex-employer's premises with no guarantee of continuity, for, we know that ~ service tenancy generally terminates with the end of employment. From all this no tribunal reasonably constituted could have arrived at a decision different from the one arrived at by the trial court. Lastly, (and I ptit it last, intentionally) while Mr Kisusi is quite right in his observation regarding consequences of failure to attach a decree, for, 0.39(1) CPC clearly spells out, the memorandum shall be accompanied by~ copy of the decree appealed from and (unless the court dispenses therewith) of the judgement on which it is founded!' (Emphasis .:J.. ··- . " 7 .... I mine), this rule which applies or suits generally does not apply to appeals on decrees under the Law of Marriage Act. The law of Marriage Act provides a sPecial procedure for filing appeals from subordinate courts. The aggrieved party simply files his memorandum of appeal with the relevant subordinate which passed '"!'!"" the decree court and the said court is then bound to accept the Petition and transmit the record to the High court. The conditions set by 0.39, Rule (1) CPC are not applicable at all. This can only be appreciated by quoting S.80 of the Law of Marriage Act, and Rule 37 of the Law of Marriage (matrimonial Proceedings) Rules, 1971. S.80 provides, "(1) any person aggrieved by any

decision or order of a Magistrate's Court in a ' ., matrimonial proceeding may.appea~ therefrom to the High Court. (2) An appeal to the High court shall be filed in the Magistrate's court within forty five days of the decision or order against l ,, which the appeal is brought. (3) Save to the extent provided in any rules .made under this Act the provisions of the I. . ,,. ... ... 8 Civil Procedure Code, 1966 relating to appeals shall not apply to appeals under this Act. While, Rule 37, prescribes, "37(1) An appeal under section 80 of the Act shall be commenced by a. memorandum of Appeal filed in the subordinate court which made or passed the decision, order or decree appealed against. (2) Every memorandum of appeal shall be either in Kiswahili or in English and shall state briefly the grounds of objection to the decision, order or decree appealed against. (3) Upon the receipt of the memorandum of appeal, the subordinate court shall transmit to the High Court, the memorandum of appeal together with the complete record of the matrimonial proceeding to which the appeal relates. (4) The High Court,shall not reject or refuse to entertain any memorandum of appeal by reason only of any defect in the form of the memorandum but shall admit every memorandum of appeal" See also Iddi Mpenda vs. Josephine Thomas, (He) Civil Revision _.11CMaf■·hl.■J■. - ,-...~,... . 9 No.13 of 1995, (Dsm

Registry unreported). I have quoted the said rule in whole not only to show the inapplicability of the technicalities of the CPC but also to show that the appeal procedure was purposely made easy and simple most , likely to accommodate the less literate or illiterate who are the majority members of our society and also considering that marriage is the most sensitive and nucleus of society. In conclusion therefore the appeal is dismissed in its entirety. Considering the nature and circumstances of the case I make no order as to costs. L.B. Kalegeya JiiDGE ~ t ~- ....a....:_ , ·.•