Judgement Mabula Dindai

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SU-REGISTRY OF MWANZA

AT MWANZA CIVIL APPEAL NO. 25829 OF 2023 (Arising from the decision of the Geita District Court in Probate Appeal No. 01 of 2023 before Hon. S.L. Maweda – SRM dated 6th day of October, 2023) MABULA DINDAI……………………..………...….……..……….……..…..APPELLANT

VERSUS HERBERT JOB ……..……….…………………...………….…........…1st RESPONDENT BENADETHA L. MAIGE………..…………………….…..….……...…2nd RESPONDENT

JUDGMENT 13th June & 12th July, 2024 ITEMBA, J. ‘Dead men tell no tales’ I would agree with this English idiom, because, if otherwise, it would have been known to us what were the wishes of the deceased parents towards their children whom they left behind at a tender age. This is the second appeal whereas the battle herein is between the brother of the deceased, the appellant and the deceased brother-in-law, 1st respondent, and deceased’s mother-in-law, the 2nd respondent. The background leading to this appeal is that; on 5/10/2021 Kianda Dindai Misambo, the deceased died interstate. He was survived with a widow Mwasi Job Maziku and two children names withheld, currently 11 years and 1 9 years hereinafter, the children. The said widow was proposed by the family to be the administratrix of estate of her husband but unfortunately, she died on 6/9/2022 before her court appointment. The deceased, left behind the children, under the care of the respondent who is their maternal grandmother. Later, the appellant was appointed the administrator of his brother’s estate by Katoro Primary Court, herein the appointing court. His appointment was made despite the objections made by one Herbert Job, the brother of Mwasi Job Maziku and the 1st respondent herein. Following that appointment, the appellant filed a miscellaneous application before appointing court against the respondents claiming

that the two have refused to release the deceased’s children, houses’ tittle deeds and a motor vehicle. The respondent explained that they do not have any tittle deeds and the said motor vehicle was surrendered at the police station following several fracases from the appellant. As for the children, they told the court that they have the right to raise them because the deceased left them under their care. Among others, the appointing court declared the tittle deeds lost and ordered the appellant to process new ones on the name of the heirs, ordered the appellant to collect the car from the police station 2 and the children to remain in the deceased’s house under the custody of the 2nd respondent. The appellant was unsatisfied and he appealed to the District Court fighting for the children custody. In the 1st appeal it was ordered that, the appellant can still execute his duties as an administrator of estate but the 2nd respondent shall remain the custodian of the children. Still daunted, the appellant has marched to this court, in his hand armed with three grounds as follows: i. That, considering the nature and circumstances of the case, the first Appellate Court had erred in law and facts to upheld the decision of Primary Court which placed the children under custody of the 2nd Respondent who owns nothing to meet the basic needs/requirements of the two children than

the Appellant that their best interests have been compromised. ii. That, the first Appellate Court had erred in law and fact to upheld the decision of the trial court which had failed to evaluate the evidence on record. iii. That, as a whole the decision of the District court is against the weighty of evidence and prevailing laws. 3 When the appeal was called for hearing, the appellant was represented by Mathias Mashauri learned counsel while the respondents fended for herself. Moving the court, Mr. Mashauri argued the 1st ground separately and the 2nd and 3rd grounds jointly. He explained generally that the aim of the appeal is to object the custody of children which is granted to the 1st appellant. That, the main ground is that the interest of these children are not considered. That, based on the respondent’s age and other circumstances she will not give proper care to the children. He cited sections 4(2) and 37(4) of the Law of the Child Act, Cap 13 R.E 2019, herein the LCA, stating that the court should primarily consider the best interest of the child. Referring to the case of Yusufu Rafael v Monica Yoshua Civil Appeal no. 11/2022 High Court Kigoma, cited with approval in Habby Longo v Dotto Kifizi and another Civil Appeal 67/2021 he argued that, the best interest of a child involves many things including friendly environment of raising a child. He stressed that, the

appellant is the right person to raise the children and even the appointing court did not satisfy itself as to why it 4 placed custody to the 2nd defendant. That, the 2nd defendant is the grandmother of the children, she is of old age, do not have any income which will help her raising them. That, to the contrary, the appellant is young, he has income which will enable him to raise the children and give them proper care and he is currently the one who pays for their education. That, the lower courts were to satisfied themselves with evidence on how the 2nd respondent will manage to raise the children in their personal care, education and other care as it was decided in Sajad Ibrahim Falamsi v Ally Jawat Civil Appeal 42/2020 cited with approval in in Yusufu Rafaeli. That, the court went further and mentioned the United Nations aspects to consider in granting custody which include protection, living in environment which ensure physical, mental and psychological growth, spiritual growth with a sense and fear of God. That, basic needs and these are not similar from one community to another. The learned counsel went on that, our societies are patrilineal where the father’s side is given the role to take care of the children and based on this, the appellant is supposed to be granted power to raise these children. The 2nd and 3rd grounds were argued jointly. The learned counsel stated

that the District Court did not properly evaluate the evidence in 5 record. That, the 2nd respondent just wanted to be given the children because she had stayed with them in the same house but that evidence is very weak there must be proof of financial ability. That, even if when the children were called by court to state who they want to stay with they chose the 2nd respondent, that was not enough apart from other evidence. That, these children who were 7 and 10 years by then, they were too young to form good opinion. That, section 11 of the LCA requires the child to be capable of forming a right of opinion. That, the court should not have relied much on their opinion because childcare involve most things in order to build the child future. He finalised his submission by praying that the appellant be granted with custody of the children. In reply, the 2nd respondent was the first to submit and she did not succumb. She told the court that after the death of the children’s parents she immediately took care of the children. That, at the appointing court, both children were questioned and the 1st child chose to stay with her because she is her grandmother, and the 2nd child did not even know the respondent she called him brother while he is the uncle. That, regarding the younger child, she took care of her since birth she actually took her 6 from Katoro to her home until when the

child could sit, walk and talk and her father came to take her. That, the child considers her as her mother. Regarding her age and ability to raise the children, she stated that she has managed to raise the children since their parent’s demise although she was not getting any support until the court issued an order of support. That, the deceased parents handled them to her and they trusted her. That, the appellant has supported the children about 3 times, he bought food, paid school fees and during holidays he bought some clothes although the support is not voluntarily made, they have to complain to the appellant. That, the appellant is not capable of raising the children as he is not working, he is using the money left by his deceased brother claiming it is ’mali ya ukoo’ meaning it is a clan’s properties. That, even when the parents separate it is the mother who has high chances of being given the children’s custody and she is stepping on the mother’s shoes. That, if the children grow up, mature and have self-awareness she will handle them to the said clan. That, she does not want any property and she is incapable of selling the house she only wants to take care of the children. She is also concerned that the children, if taken by the appellant, will be moved to another school. 7 That, she has her farms even when the appellant did not bring food the children could still

eat. She finalised by stating that, the lower courts were justified in letting her stay with the children, the house is theirs, they should not be move from one place to another. On his part, the 1st respondent also opposed the appeal. His main ground was that, at the appointing court both children were called they could not identify the appellant and they stated that they wanted to stay with the 2nd respondent. He added that, the appellant was not in good terms the respondent’s family and the respondents and he had more than once threatened the respondent’s family and his deceased sister, Mwasi reported to police and they we were settled. In his rejoinder, the appellant’s counsel insisted that there is no reason in record as to why the custody is given to the 2nd respondent. All what is said by the 1st respondent is not in records. That, the children failing to identify the appellant, is also not in record and if he did not recognize them, he could not be able to call them and shop for them during holidays. 8 That, the appellant is not after for money but for taking care of the children. Regarding their children wish to stay with their grandmother, he argued that, their wishes are not independent because they were both under 15 and still young. Responding to the 1st respondent’s submission he stated that if those allegations against the appellant are true, they are criminal

liabilities and they should be taken to a proper forum. He finalised by insisting that the appellant deserve the children’s custody and even the bible urges adults to care and punish the children, the 2nd respondent is old she cannot do that. Upon parties being probed by the court, it was revealed further that; the appellant is in mining business, he took over from his brother the deceased. Both children are attending a primary, day school in Katoro and the youngest is frequently sick. That, upon Mwasi’s death there is no probate cause which was filed. The family relied on the probate cause of Kianda Dindai Misambo, the appellant’s brother. That, at the deceased’s house, apart from the 2 children and the 2nd respondent there are other family members related to the respondents, who live there but they were living there even when the deceased were alive. 9 Having appraised the lengthy submissions from both parties, the issue is whether the appellant should be granted with custody of the children. Based on the grounds of appeal the main complaint is on the propriety of giving custody of children to the 2nd respondent. To start with, I have noted that the respondent’s have raised a number of issues which are not supported by records therefore they will not be considered, this being the second appeal. The appellant’s counsel is mainly challenging the appointing court for not

considering the best interest of the child in reaching its’ decision. The principle of best interest of the child is found in our laws: Section 4(2) of the LCA states that; The best interests of a child shall be a primary consideration in all actions concerning children whether undertaken by public or private social welfare institutions, courts or administrative bodies. 8.-(1) It shall be the duty of a parent, guardian or any other person having custody of a child to maintain that child in particular that duty gives the child the right to- (a) food; (b) shelter; (c) clothing; (d) medical care including immunization; (e) education and guidance; (f) liberty; and (g) play and leisure. Further, section 37 (4) of the LCA requires the courts when granting custody to primarily consider the best interests of the child. 10 In the case of Nacky Esther Nyange v Mihayo Marijani Wilmore Civil Appeal No. 169 of 2019, which is essentially a matrimonial appeal, the Court of Appeal expounding sections 26 and 39 (2) of the LCA and Rule 73 (a) to (i) of the Law of the Child (Juvenile Court Procedure) Rules, GN No. 182 of 2016 (hereafter referred to as the Juvenile Court Rules), had this to say: ‘In applications for custody, the best interest of the child is determined in consideration of such factors as; the age and sex of the child, the independent views of the child, the desirability to keep

siblings together, continuity in the care and control of the child, the child's physical, emotional and educational needs, the willingness of each parent to support and facilitate the child's ongoing relationship with the other parent.’ Further, sections 7,8, 9 AND 10 of the LCA states that: 7.-(1) A child shall be entitled to live with his parents or guardians. 9(4) Where biological parents of a child are deceased, parental responsibility may be passed on to a relative of either parent or a custodian by way of court order or any traditional arrangement. It is also worthy noting that section 10 of the LCA which states: 10. A person shall not deprive a child of reasonable enjoyment out of the estate of a parent. 11 Therefore, it is the right of the child to live with parents or guardians, the opinion of the child is valuable in determining custody, children should be left to enjoy their parent’s estate and in granting custody, there are several conditions to be considered, the same will guide me in my findings. In reaching its decision, the appointing court was guided by section 11 of the LCA, that a child has a right of opinion. That, the court has considered the children opinion and that the 2nd respondent has raised the children even before the death of their parents, they should not be disturbed and in doing so, the appellant will not be affected in his execution duties. The

1st appellate court took note that, the appointing court has considered the best interest of the child and maintained the decision. I agree with the appellant’s counsel that in the present situation the court need to consider best interest of the child. I also agree that, best interest of a child cannot be easily defined because it is a wide and subjective matter and depends on the case-by-case basis. There are issues based on psychosocial, culture and beliefs, health, economic and general lifestyle which may vary from family to family and from one child to another. 12 Having considered all aspects encircling this appeal I have the following observations one; The children were questioned on whom they prefer to stay with, looking at page 18 of typed proceedings, in loose translation, the elder child said: ‘I am asking to stay with grandmother, she is the one who raised us since we were young, I do not know the other’. And, the second one said: ‘I cannot leave my grandmother whom I am used to, I beg that we keep on living with her.’ Both children gave their opinion before the court and they opted to stay with the 2nd respondent. Two; as per the appointing court records, there is no dispute that the children were living with the 2nd respondent even before their parent’s death. The 2nd respondent had moved in the deceased’s house to take care of them while they were sick. The

second respondent is used to the children, know their need as she kept on raising them even after the death of both parents. There is a rebuttable presumption that women are nurtures and cares of children and vulnerable. That is why it was the 2nd respondent, not the appellant, who moved in and took care of the deceased and children before their death. Three; apart from the appellant being the deceased’s brother and 13 challenging the 2nd respondents’ ability to raise the children, the court is not told how capable is the appellant in custodianship. Where and how does he live? Is he married or a bachelor? Does he have children of his own? If yes, how is he involved in their lives? What is the extra quality which he has as a guardian against the 2nd respondent? I find that, the appellant was to establish and prove that he is more suitable than the 2nd respondent. Four; I have considered the aspect of ‘continuity in care and control’ as provide for in Nacky Esther Nyange v Mihayo Marijani Wilmore (supra). It is not in dispute that the children have been consistently under the care of the 2nd respondent, this infers that apart from the educational, religious and social institution which they are currently engaged, they are already used to a certain lifestyle and cultural practices. These arrangements, if disturbed, will affect the continuity in care and control and will

eventually not be at the best interest of the children. Five; on the aspect of age, I have gone through the lower court’s record and when adducing their evidence, the appellant was recorded to be 33 years while the 2nd respondent was 68 years. Indeed, the appellant is relatively young as compared to the 2nd respondent. However, I do not agree that mere older age affects a person’s ability and competency as a guardian unless there is a specific weakness like sickness etc, disclosed which is based on the said 14 old age. On the part of the 2nd defendant who has raised the children from the year 2021 there is no specific weakness shown against her. Lastly; on the cultural issue of raising children in patrilinear practice, I think it is good to be observed if there are people from that paternal side who are competent as guardians. That, they consider the best interest of the children and in this case, there is none than other the 2nd respondent who is from matrilineal side. In the premises, considering my findings above, I am in tandem with both the appointing and first appellate courts' finding that the appellant failed to prove his claims on the balance of probabilities. In the end, the appeal stands dismissed. Each party bears its own costs. DATED at MWANZA this 12th Day of July, 2024. L. K. J. ITEMBA

JUDGE 15