morgan brigette mandica shilina vs corrado venettoni 2003 tzhc 103 22 july 2003

IN THE IIIGH CO U R T OF T ANZANIA (DAR ES SALAAM DISTRICT REGISTRY) CIVIL REVISION NO. 62 OF 2003 M O R G A N BRIGE TTE M ANDICA SIIILINA Versus C O R R A D O VENETTON1 RULING ORIYO, J The application for Revision arises from custody proceedings at the Kinondoni District Court, Dar es Salaam. The respondent herein is an Italian citizen residing in Rome Italy. He has come to Tanzania to initiate Matrimonial Cause No. 64 o f 2002 against the Applicant for orders that the applicant either returns an infant child to Rome or hands over custody o f the said infant to the respondent. The parties cohabited in Rome, Italy for a period o f over 5 years. Their relation ship led to the birth o f the infant child, A L E S SA N D R O V EN ETT O NI, on 13th April, 1999. Subsequent to that, parties decided to part company and the applicant took away with her the infant child who has remained in the applicant’s custody to date. Pursuant to that state o f affairs the respondent applied for the custody o f the infant child at the Juvenile Court o f Rome which decreed in February 2002, that the infant remain in the custody o f the applicant, with visitation rights to the respondent, but the right o f overnight stay o f the infant with the respondent was excluded.. The applicant, bom o f Tanzania parents and holder o f a valid Tanzanian passport Number A 0 3 3 9 issued at Dar es Salaam on 25th July 2002, thereafter returned to Tanzania and brought the infant child along. The respondent then initiated the custodial proceedings at the District Court. The learned trial magistrate (Mbuya, SRM) granted custody to the respondent on 16th June, 2003 and on 17th June, 2003 a warrant o f Arrest was issued against the applicant for failure to hand over the infant to the respondent. The applicant is dissatisfied and has applied for various reliefs including revision o f the trial court proceedings, judgment and orders; an interim restrain order to prevent the respondent from removing the infant child from Tanzania. Further she prays for custody o f the infant. The application is supported by an affidavit o f the applicant stating, inter alia, that she has lived with the infant since his birth, that an Italian court has granted custody to her under a consent order and that the trial court has reversed the order o f the Italian court and granted custody to the respondent. She added that the respondent is already in possession o f air tickets for himself and the infant to travel back to Italy. In countering the application, the respondent states, inter alia, that:- (1) The infant, being an Italian citizen is entitled to grow up in an Italian and Roman Catholic Culture and attend the best schools which are not available in Tanzania (2) The infant is registered in a substandard school in Tanzania. (3) The infant is being taken to various churches in Tanzania while he is a baptized Roman Catholic (4) The respondent is entitled to take his infant son back to Italy pursuant to the trial court’s order o f 16th June, 2003. (5) As a general legal point the respondent asserts that the application for revision is improper because there is no error on jurisdictional matters raised. In reply to the counter affidavit, the applicant points out to four instances o f irregularities where the trial court wrongly assumed jurisdiction. These include the decision on the applicants status o f her citizenship; the fact that the respondent is neither domiciled nor a resident o f Tanganyika; custody had already been granted by an Italian court to the applicant and that the cause o f action arose in Rome, Italy. There are two issues for determination by this court, namely:- (i) W hether the applicant has appropriately invoked the re visionary powers o f the court. (ii) Who is entitled to the custody o f the infant. Parties argued the application through written submissions. The applicant made her submissions through the services o f M semwa and Company, Advocates and the respondent was represented by the law firm o f Dr. Lamwai, M dam u and Company, Advocates. Before determining on the merits o f the substantive application, there is an objection raised by the applicant in its rejoinder submissions that the respondents submissions were filed out o f time in contravention o f the court order. On this ground the applicant prays for its rejection. In support o f the prayer the applicant has referred the court to several foreign and local decided cases including:- (i) Dr. Ally Shabhav .. vs.. Tanga Bohora Jamaat 0 9 9 7 ) TLR 305. (ii) Godwin Ndewesi and Karoli Ishengoma.. vs.. Tanzania Audit Corporation; Civil Application No. 57/94; Court o f Appeal o f Tanzania, Dar es Salaam - Registry (UnreportedX (iii) Tanga High Court Misc. Civil Application No. 21/2002; Africa MuslimAgencv .. vs.. Dr. Ali Ebrahim Shabhav (unreported). It is not disputed that the respondent did file its submissions late by one day. The said submissions were accompanied by Dr. Lamwai, A dvocate’s letter explaining the cause o f the delay. Article 107 A (2) (e) o f the Constitution o f the United Republic o f Tanzania, 1977 as amended provides that in dispensing justice, courts o f law should not be bogged down by legal technicalities but should primarily focus on substantive justice. The original version in Kiswahili reads as follows:- “ Katika kutoa uamuzi wa niasliauri ya madai na jinai kwa kuzingatia sheria, Mahakama zitafuata kanuni zifuatazo, yaani:- (a ) --------- ---------------- ( b ) -------------------------------- (c) ....................................-.- (d) ............................. ... (e) kutenda haki bila ya kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka” . Thougli the applicant’s and the respondent’s versions on the cause o f the delay differ slightly; in the spirit o f (e) above, the delay o f one day can be accommodated without causing any injustice to the applicant. Further, the subject matter o f the revision requires that it will be in the interest o f justice and the welfare o f the infant that both parties be heard. On those grounds, the applicant’s prayer that the respondent’s submissions be rejected, must fail. On the issue o f the applicant invoking the reversionary powers o f the court, it is justified for the applicant that because the proceedings were tainted with irregularities and the court lacked jurisdiction. On the other hand it was argued for the respondent that the court did not lack jurisdiction but was exercising a concurrent jurisdiction with the Juvenile Court o f Rome on the issue o f the custody of the infant. This court was referred to the decision o f the late BIR O N j, in support o f the argument in> In the matter o f Patrick Ernest Hofmann, an infant (1971) HCD No. 409 Let me hasten to state that this case is not on all fours with the one at hand, therefore is distinguished. However, with due respect to the respondent, having concurrent jurisdiction does not extend rights to parties for duplicity of suits or to courts to reverse valid orders o f the other court which orders were granted by consent and the matter is subjudice in Rome and fixed for 29 October, 2003. Section 77 o f the Law o f Marriage Act, 1971 is titled:- “ Right to invoke jurisdiction” . Subsection4 thereof provides:- 44 (4) Any person may apply to the court for maintenance or for custody of infant children or for any other matrimonial relief if— (a) he or she is domiciled in Tanganyika; or (b) he or she is resident in Tanganyika at the time o f the application; or (c) both parties to the marriage are present in Tanganyika at the time of the application” (emphasis added) According to B lack’s Law Dictionary, Seventh Edition; the word domicile is defined as: “ The place at which a person is physically present and that the person regards as home; a person’s true, fixed, principal and permanent home, to which that person intends to return and remain, even though currently residing elsewhere- Also termed permanent abode.” “Resident” is defined as a person who has a residence in a particular place; and “Residence” is:- 1. The act or fact o f living in a given place for sometime. 2. The place where one actually lives. An example o f a resident is one who resides at his area o f work though his fixed place of abode may be different. It has already been pointed out that the respondent came to Tanzania 011 a tourist visa and would have left immediately custody was granted by the trial court if not for these revisional proceedings. He is neither domiciled nor Resident under the above provision. Thus he does not qualify to apply for custody in Tanzania courts under the circumstances. Having established that the trial court had no jurisdiction to entertain and determine the custody proceedings as it did; the question is why the applicant chose to keep quite at the trial court. It is apparent from the trial court’s record that some o f the objections were raised in the applicant’s Answer to the Petition but withdrew the same before determination. Primarily, the issue o f jurisdiction is the foundation upon which the justice system operates; lack o f which vitiates proceedings, judgments, decrees, orders, etc; thereon. Notwithstanding the reservations by the respondent, the objection raised by the applicant on the lack o f jurisdiction by the trial court is upheld. In view o f the foregoing, this court up holds that the applicant appropriately invoked the revisional jurisdiction o f the court. The proceedings, judgment decree and orders o f the trial court in Matrimonial Cause No. 64 o f 2002 are therefore nullified and set aside. This suffices to dispose o f the matter before the court. The second issue for determination is who is entitled to the custody o f the infant. In Tanzania, the power o f courts to grant custody is governed by Section 125 o f the Law o f Marriage Act. 1971. Section 125 (2) provides:- “ (2) In deciding in whose custody an infant should be placed the paramount consideration shall be the welfare o f the infant — ’’(underlining provided). The “ welfare principle” is intemationality recognized as part o f International Human Rights Law. The united Nations Convention on the Rights of the Child provides by Article 3 thereof:- A R T IC L E 3 1) In all actions concerning children whether undertaken by public or private social welfare institutions, courts o f law, administrative authorities or legislative bodies, the best interests o f the child shall be a primary consideration Tanzania is a signatory to the Convention On the basis o f the welfare o f the infant principle, the custody o f Alessandro Venettoni is restored to the applicant who has had custody o f the infant child since his birth. The respondent is granted visitation rights on weekends and public holidays but without the right to retain the infant for overnight stay. The respondent has shown concern on the standard o f education being availed to the infant. In order for the respondent to contribute towards the maintenance o f the infant, he shall pay for the costs o f subsistence, school fees and medical expenses o f the infant child. There will be no order for costs in view o f the circumstances herein. It is so ordered. K.K. ORIYO JUDGE 22/7/2003 Co ram : S.A. Lila- DR For the Applicant: Msemwa advocate for For the Respondent: Mdamu, advocated for. C/C Mavura ORDER: Judgment delivered today in the presence o f learned Msemwa, advocate for the applicant and learned Mdamu advocate for the respondent. S.A. Lila DISTRICT RE GIS TRAR