NAIMA JUGDMENT 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA MATRIMONIAL APPEAL NO 29619 OF 2024 (Originating from the decision of Geita District Court Matrimonial Appeal No. 5824 of 2024 before Maweda-PRM) NAIMA JOSEPH----------------------------------- APPELLANT

VERSUS MACO JOHN ------------------------------------ RESPONDENT

JUDGMENT Date of last Order: 15/01/2025 Date of Judgment: 11/02/2025 K. D. MHINA, J. This matter originated from Nyankumbu Primary Court in Geita in Matrimonial Cause No. 49 of 2023. In that case, the appellant, petitioned to the trial court for three reliefs of divorce, division of matrimonial properties and custody of the three issues. Essentially, after the Primary Court heard the petition, it held that there was no marriage between the parties and the house was not subject. 1 Further, the trial court awarded the custody of the two issues who were living with the respondent to the respondent and the custody of the last issue who was living with the appellant to the appellant. However, the respondent was ordered to pay TZS. 100,000/= each month as maintenance. The appellant was aggrieved with the decision of the trial court. She preferred Matrimonial Appeal No.5824 of 2024 in the District Court of Geita with four grounds of appeal as follows; i. The trial court erred in law and fact for failing to evaluate the evidence properly resulted into an unfair decision. ii. The trial court erred in law and fact for awarding the custody of two issues to the respondent without assigning reasons. iii. The trial court erred in law and fact for awarding the custody of two issues to the respondent without considering that the issues were minors and iv. The trial court erred in law and fact

for failing to assign a guardian as in charge of the house of Ivan Hassan, the minor and the child of the parties. Thus, the decision failed to protect the best interest of a child. Having heard the appeal, the District Court, on 24 October 2024 the trial court’s decision. However, it ordered the property/ house, to be under the custody of the respondent. 2 The outcome of the appeal aggrieved the appellant. She then lodged this appeal on 21 November 2024. From the memorandum of appeal lodged the appellant had six (6) complaints: - 1. That, the first appellate court erred in law to give the respondent custody of two children without considering that their age needs them to be close to their mother (respondent) 2. That, the first appellate court erred in law and in fact without taking into account the word ‘’welfare of the child’’ without allowing the child to choose between the appellant and the respondent who he/she wishes to live with according to the Law of the Child Act.

3. That, the trial and the first appellate court erred in law and in fact to consider the evidence that, the respondent does not have love and affection for her children hence miscarriage of justice on the part of the respondent.

4. That, the trial court erred in law and in fact without taking into account the best interest as propounded under the Law of the Child Act of 2019.

5. That, the first appellate court erred in law in deciding that the respondent continue to live in the child’s house, one Ivan Hassan without consideration that the appellant may use the house for his own benefits or change the ownership.

6. That the first appellate court erred in law and in fact for allowing the applicant to be given T.sh 100,000/- as 3 maintenance for the child, the amount which does not cover the needs of the child. The appeal proceeded by way of written submissions. The appellant enjoyed the services of Mr. Batholomew Musyangi, learned advocate and on the part of the respondent had the services of Mr. Felix Kagimbo, learned advocate. Supporting the 1st ground of appeal, Mr. Musyangi submitted that the courts below erred in law to place custody of two children to the respondent taking into account that the two children are still young and they were supposed to be under the custody of the appellant as the mother. He explained that in deciding the custody of the children the court has to go into detail to come up with a fair decision based on the best interest of the child. He supported his submission by citing sections 4 (1) (2) and 26 of the Law of the Child Act cap 13 R.E 2019 (the Act) that it is a rebuttable presumption that it is in the best interest of a child below the age of 7 years to be with his mother. 4 Further, the court should consider the best interest of the child and the importance of a child being with his mother when making an order for custody or access as provided under section 39 (2) of the Act. To further bolster his submission, Mr. Musyangi cited the cases of Chiku

Ismail vs. Mugisha Rweyemamu, Matrimonial Appeal No. 26 of 2020 HC (Tanzlii) and Celestine Kilala and Halima Yusuph vs. Restituta Celestine Kilala (1980) TLR 76, where the court held the best interest of the child is the most important ground to consider. Arguing together the 2nd and 4th grounds of appeal, Mr. Musyangi submitted that the respondent did not prove his case before The District court. He explained that the Court should regard the wishes of the parents of the infant and the wishes of the infant, where he or she is of an age to express an independent opinion. To support his argument, he cited sections 125 (2), (a) and (b) of the Law of Marriage Act cap 29 R.E 2019 Therefore, the children had to be given the opportunity to choose to live with which parent because the views of the children were of the utmost importance in the best interest of the children in deciding the custody of the children. 5 Concerning the 3rd ground of appeal, Mr. Musyangi submitted the respondent had no evidence to prove that the appellant did not have love and affection for her children. He was supposed to prove that allegation as per section 110 (1) of the Law of Evidence Act Cap 6 R.E 2022. On the 5th ground, he argued that the first appellate court did not consider that the respondent could change illegally the use of the house left to the child Ivan. Therefore, this court has to choose the

appellant to be the administrator of the house that belonged to Ivan. On the last ground, Mr. Musyangi submitted that the courts below did not consider that the appellant had no any income. He cited the cases of Faraja Nsemwa vs. Alex Mbilinyi, Matrimonial Appeal No. 04 of 2018 (Tanzlii) where it was held in deciding the maintenance of the child the court has to consider the income of the man, the court has the duty to increase the amount of maintenance. And the case of Jerome Chilumba vs. Amina Adamu [1989] TLR 117 it was held that; “..where the equality of maintenance is required to all children and dependants of the sued person’s income for sake of ability to pay”. 6 Therefore, the courts below had to consider the financial status of the appellant. In response, Mr. Kagimbo raised a pertinent issue that the 2nd, 3rd, 4th, 5th and 6th grounds of appeal contained the issues which were raised for the first time in this second appeal. Therefore, he argued that this court cannot deal with grounds of appeals which were not raised in the first appellate court without the leave of the court. He substantiated his assertion by citing Samwel Sawe vs. Republic Criminal Appeal No. 135 of 2004 (unreported), where it was held that; “as a second appellate court, we cannot adjudicate on a matter which was not raised as a ground of appeal in the first appellate court’’. For the 1st ground, he

submitted that the proceedings and judgement of the trial and first appellate court that the appellant left (abandoned) the two children in the hands of the respondent, therefore the two children were living with the respondent even before the matter was taken in court. 7 He argued that for the welfare of the two children, it is proper for the respondent to remain with the custody of the children. He cited section 125 (3) of the Law of Marriage Act to support his argument. Unfortunately, Mr. Musyangi did not file the rejoinder to counter the reply to the submission in chief, especially the pertinent issue raised by Mr. Kagimbo on the new issues (grounds) which were not raised at the first appellate court. Having heard the submissions from both parties, I now turn to determine the appeal and I will start with the pertinent issue raised by Mr. Kagimbo. This issue should not detain me long. The records are quite clear that the 2nd, 3rd, 4th, 5th and 6th grounds of appeal were never raised at the first appellate court. For that, the law is an elementary principle that issues not raised before the first appellate court cannot be raised as new grounds on subsequent appeals and there is a plethora of authorities on that issue. The Court of Appeal in the case of Melita Naikiminjal & Loishilaari NaIkiminjal vs. Sailevo Loibanguti (1998) T.L.R 120 was confronted 8 with a similar issue on

whether it can decide on a matter not raised in and decided by the High Court on the first appeal. The Court held that; “An issue not raised before the first appellate court cannot for the first time be raised and entertained by the second appellate court. Court of Appeal in the case of Farida and Another vs Domina Kagaruki, Civil Appeal No. 136 of 2006 cited with approval in Kizuwa Kibwana vs Gibson Baingaye, Misc Land Appeal No. 35 of 2017 where it was held that “It is a general principle that the Appellate Court cannot consider or deal with issues that were not conversed or pleaded or raised at the lower court.” Also, in Robert Nyakie@ Nati vs. Republic, Criminal Appeal No. 393 of 2018 (Tanzlii) the Court of Appeal held that; “This Court has, on numerous occasions held that it has no jurisdiction to deal with an issue raised for the first time that was not raised nor decided by lower courts unless that issue raises a point of law; the jurisdiction of the Court is confined to matters which came up in the lower court and were decided”. The only exception to this elementary principle is when the grounds raised involve a point of law. See Robert Nyakie@ Nati (Supra). However, the complaints involved in the 2nd, 3rd, 4th, 5th and 6th grounds of appeal in 9 the instant appeal are issues of facts which need to revisit and re-evaluate the evidence. Therefore, the 2nd, 3rd, 4th, 5th

and 6th grounds of appeal are not worth being considered and determined by this Court. Thus, the grounds are dismissed. In determining the 1st ground of appeal and this being the second appeal the established principle is courts in second appeals should seldom interfere with concurrent findings of fact by the lower courts unless there has been a misapprehension of the nature and quality of evidence and other recognized factors leading to a miscarriage of justice. See Wankuru Mwita vs. Republic, Criminal Appeal No. 219 of 2012 (unreported), where the Court of Appeal held that; "... The law is well-settled that on a second appeal, the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or clearly unreasonable or are a result of a complete misapprehension of the substance, nature or non-direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice”. 10 At the trial, when the custody of two issues, minor and both below seven (7) years was placed to the respondent, the trial magistrate held that for the best interest of the children, two elder children who were living with the respondent even before the case was taken to the court, to continue living with him and the younger one who was living with the

appellant to continue to live with her. That was how the custody issue was determined by the trial Court. Further, according to the evidence it was the appellant who sent the two children to the respondent. According to the evidence of DW3, the children were sent by one Shomari, and the respondent admitted they were his children. When the respondent phoned the appellant, she respondent that they were his children thus, he should live with them. They reported the matter to the Social Welfare Office and were told to live with the two children. On the same issue, the 1st appellate court upheld the reasoning given by the trial court and added that the evidence indicated that the children were abandoned and were handed over to the respondent by the Social Welfare Office. 11 From above, the position of law as per the cited section 125 (3) of the Law of Marriage is as follows, I quote; “There shall be a rebuttable presumption that it is for the good of an infant below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of an infant by changes of custody.” However, in deciding in whose custody an infant should be placed, the court is required to take into account the paramount consideration regarding the welfare of the infant.

See Pulcheria Pundugu vs. Samwel Huma Pundugu [1985] T.L.R.7 The position is also held in the cited case of Celestine Kilala (Supra) TLR 76, where it was held that; “..in deciding the custody of the child the paramount duty placed to the court is to consider the best interest of the child, in which one of the factors to be considered is the age of the child and his opinion’’. Therefore, the welfare principle is of great importance in awarding the custody of the children to the parents or guardians. Thus, having gone through 12 the records and the lower court’s decision, there was no misapprehension of the substance, nature or non-direction on the evidence; a violation of some principle of law or procedure in determining the custody of the children. Therefore, though the children were below seven (7) years old and the custody was awarded to the father (respondent), I don’t see the reason to change hands for the children’s custody as the issue of welfare and best interest was well evaluated by the courts below. From the above discussion, the 1st ground is devoid of merits. In totality, the appellant’s grounds of appeal fail to persuade this court to interfere with the decision of the 1st appellate court. Thus, the appeal is unmeritorious; consequently, I dismiss it. Since the appeal arises from matrimonial proceedings, I make no order as to costs. It is so ordered. K. D. MHINA

JUDGE 11/02/2025 13 Court: The right to appeal is fully explained to the parties. K. D. MHINA

JUDGE 11/02/2025 14