20151214 TZHC Arusha2

IN THE UNITED REPUBLIC OF TANZANIA .

IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY)

AT ARUSHA CIVIL APPEAL NO. 42 OF 2015 - (Originating from Kiteto District Court of Kibaya, Misc. Civil Application No. 1/2014) NEMBRIS ISSA NDIPOYA ............................................. APPELLANT

VERSUS NGOPINYO LEMAY LEBERETI. ................................... RESPONDENT Date of last Order: 27/11/2015 Date ofJudgment: 14/12/2015

JUDGMENT MASSENGI, J The Appellant NEMBRIS ISSA NDIPOYA being aggrieved by the decision of Kiteto District Court at Kibaya (Hon. E.D. Massawe) in Misc. Civil Application No. 1 of 2014 delivered on 18/8/2015 appeals before this court on the following grounds; 1. That the learned Magistrate erred in law and fact when failed to ·consider the evidence tendered in court in regard to the disappearance of the respondent for 10 years hence no existence of 1 marriage between the appellant and the respondent and even not biological father to the children.

2. That the learned Magistrate erred in law and fact when failed to consider the Maasai customs on who carried out the ceremony of children after birth along with respondent not entitled to the custody of four children out of (5) who were placed under his custody.

3. That, the learned Magistrate erred in law and fact for failure to consider the last name which the children bares according to Maasai customs as far as Local Customary Declaration Order G.N No. 279/1963 is concerned. On 20 th day of October, 2015 when both parties appeared before this court, the appellant who appeared in person and unrepresented prayed the hearing of this appeal to be conducted by way of written submissions and the respondent who appeared in person as well, consented. Hence this court granted the prayer and ordered as follows; the appellant to file her submission in chief by 4/11/2015, the respondent to file reply submission by 18/11/2015 and rejoinder if any to be filed by 25/11/2015. Both parties complied with the scheduling order. Arguing the first ground of appeal, the appellant submitted that the issue on who is the biological father of the children is among the issues which were left undetermined by the trial court. She contended that she was married to the respondent in accordance with customary rites but later they separated for 10 years the fact which was supposed to be taken into account by the trial court that there is no more marriage after separation of 10 years. She alleged that the respondent is not the biological father of 2 the children but irrespective of raising that allegation before the trial court, the trial court granted custody of

children to the respondent without determining the issue of who was the biological father of children as a result the respondent took children who does not belong to him. To support her argument, she referred this court to .the case of HALIMA KAHEMA VS. JAYANTILAL G. KARIA (1987) TLR 147 and the case of SARAH MALOGO VS. WILLIAM VAHAYE (1983) TLR 217. Submitting on the second and the third ground of appeal she contended that as far as the Law of the Child Act and Customary Local Customer Declaration Order of 1963 is concerned; the best interest of the child is of paramount but the trial Magistrate failed to consider that. It was further stated that according to Maasai customs you have to consider on who carried out the ceremony of the children after birth because after 10 years of separation, the appellant bare children with someone known as LAIPANGW'A PALALIATI and she bare all four children while living at his father's house of which after each birth the appellant's father was the one who carried out the ceremony and not the respondent, even the surnames of the four children were not the ones of the respondent. Referring to Rule 184 of the Local Customary Declaration Order G.N No. 279 of 1963, she insisted that LAIPANGW'A PALALIATI is the biological father of the children and not the respondent. She added that the trial court also failed to invite the Social Welfare Officer in

order to investigate the environment from both parties and prepare a social inquiry report before issuing an order for custody of children as per section 45 (1) of the Law of the Child Act No. 21 of 2009. She therefore contended that the issue of the custody of children 3 being placed to the respondent without best interest of the child being taken into account left the right of the child in jeopardy as the trial court was supposed to be guarded by the paramount consideration of the best interest of the child without relying into mere facts which lacked proof. As such she prayed this appeal be allowed with costs. Opposing this appeal, the respondent in regard to the first ground of appeal asserted that although he deserted the appellant for some years, but the children namely DADAYO NGOPINYO LEBERETI and REHEMA ISSA NDIPOYA were born before his disappearance as such the appellant is telling lies for including REHEMA to another person's parentage. He further stated that there is strong evidence from their son DADAYO SIMON LEEMAY, clan leader EZEKIEL LESENGA ALUMAS and one ALOIS KIMSA that the parties were husband and wife until the dispute arose in 2013 and the children belongs to him. Responding to the appellant's allegation that LAIPANG'WA PALALAITI is the biological father of the children, he contended that under section 110 of the Evidence Act, Cap. 6 R.E 2002 the burden of

proof lies to the person who alleges but during the conduct of the case, the appellant never mentioned that LAIPANG'WA PALALAITI as the father of children nor called that person to appear before the trial court to prove that he is the father of children. Referring to the case of PETER SHIRIMA VS. ASHA ISMAIL, Civil Appeal No. 8 of 2002 (High Court at Dodoma - unreported) he stated that new matter which did not feature in the proceedings giving rise to the present appeal could not be spared. Basing on the above, he therefore contended that this appeal has no merits and prayed the same be dismissed with costs. 4 In rejoinder the appellant reiterated what was stated in the submission in chief and maintained her prayer for this appeal be allowed and the decision of the lower court be set aside for the best interest of children. I have considered .the submissions of both parties and thoroughly gone through the records of the trial court. The main issue in this appeal is who is entitled to custody of the children at issue as the appellant is faulting the trial court for granting custody of the ·children to the respondent while the respondent is not the biological father of the children. As I have gone through the evidence on records, the appellant vehemently testified before the trial court that she lived with the respondent as husband and wife for only three years and they managed

to get one child by name DADAYO NGOPINYO LEBERETI, thereafter they separated and she got back to her father's place where she got the rest of her children including REHEMA ISSA, MERRY ISSA and BARAKA ISSA. The appellant claimed that those three children do not belong to the respondent, as their father is one LAIPANGWA OLORE. The appellant's evidence was supported by the evidence of PW2 (the appellant's father) and PW3 (appellant's brother). On the other side the respondent insisted that he is the father of all children, he asserted that they lived together for one year and got one child by name of DADAYO NGOPINYO and later they separated and the appellant got back to his father but after sometime he followed her there and continued to live together and managed to get other children before separating again. The issue which was not in dispute is that the appellant and the respondent lived as husband and wife for 5 sometime before separating and that the respondent paid dowry to the appellant's father. It is not clear in evidence as to when they started living together as husband and wife and when they separated. Be as it may, the pertinent issue which was required to be dealt by the trial court first is whether there was marriage between the two because under Maasai customs if there is marriage between the two then the children born in the wedlock belongs to the father without

regarding whether he is the biological father or not. It is undisputed fact from records, of the trial court that the respondent paid dowry to the appellant's. father; but according to our law payment of dowry is not evidence of marriage. So as to constitute marriage, there must be marriage ceremony as stated in the case of RAMADHANI RAMADHANI VS. SUNGI ANDALU (1984) T.L.R 158 that; "Payment of bride wealth, even if proved is not • evidence of marriage, there must be clear evidence of marriage ceremony. (emphasis supplied) ' Considering the circumstances of this case, I fin,d that the issue whether there was marriage between the two was very p~rtinent to be dealt with before issuing custody to either of the two. Since that issue was neither raised by the trial court nor dealt with, It is my considered view that the trial court erred in law and in fact for failure to consider a ' fundamental issue which as a result renders the proceedings and an order entered thereof a nullity. On the circumstances, I therefore nullify the proceedings of the trial court and the decision entered thereof. I hereby order retrial and direct the I 6 trial court to consider the issue on whether there was marriage between the parties and deal with it before proceeding with determination on who between the two should be entrusted with custody of the ~hildren. It is so ordered. F.H. MASSENGI

JUDGE 14/12/2015 Judgment delivered in Court this 14th day of December, 2015 in the absence of both parties.

JUDGE 14/12/2015 7