the high court of the of tanzania moshithat their marriage hardly lasted for three weeks when all...

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI

MATRIMONIAL APPEAL NO. 7 OF 2020

(Originating from RM Matrimonial Cause No. 4 Of 2018 Resident Magistrate Court of Moshi at Moshi)

ABEL CHARLES MASUKI.....................................................APPELLANTVERSUS

NEEMA ADOLF KWEKA.......-.........................................RESPONDENT

JUDGMENT

MUTUNGI .J.

The appellant appeals against the decision of the Resident

Magistrates Court of Moshi at Moshi (trial court) in Matrimonial

Cause No. 4 of 2018 (S. S. Massati, RM) delivered on 21st

February, 2020.

It is apparent on record that, the appellant petitioned for

divorce in respect of their marriage. Before then the two had

separated for ten years. The background history of this

marriage is that the parties contracted a Christian marriage

on 20th December, 2008 and were blessed with one issue

Faith Abel Masuki born on 10/10/2011. Both parties averred of 14

that their marriage hardly lasted for three weeks when all

went sour. Ever since the respondent had the custody of their

child and was responsible for her welfare and upkeep.

Having knocked at the doors of the trial court, the appellant

claimed, given the short span of the marriage was not sure if

the child was his thus a DNA test was ordered to that effect.

The results were 99.99% positive meaning the issue was the

appellant’s child.

As regards the matrimonial assets, the appellant asserted

that, they did not acquire any joint assets but the respondent

found him with two cows which he inherited from his mother.

The respondent conceded that, they did not acquire any

joint assets. In respect of the child (Faith Abel) who was also

called as a court witness prayed that, she wished to proceed

living with the respondent for the sole reason that, all along

she had been taking care of her basic needs.

At the end, the trial court declared the marriage irreparably

broken down and a decree of divorce was granted. The trial

Magistrate also observed that, the two cows were not jointly

acquired by the parties thus the respondent was not entitled

to the division of the said cows. Regarding the only issue of

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marriage, custody was granted to the respondent while the

appellant was ordered to provide maintenance by

depositing Tshs. 200,000/= per month including school fees.

Aggrieved by the decision, the appellant has preferred this

appeal by advancing two grounds as hereunder: -

1. That, the trial magistrate erred in not ordering the child

Faith Abel to be in custody of the appellant.

2. That, the maintenance allowance payable to the

respondent was arbitrarily fixed by the trial magistrate

without considering parties' income.

In this appeal the appellant was represented by Mr. Faustine

Materu, learned advocate whereas the respondent

appeared in person (unrepresented).

Submitting in respect of the 1st ground, Mr. Materu argued

that, in deliberating on the custody of the child one has to

consider the welfare of the child. He added, at the trial court

the appellant relied on the case of Christina Kibatu V Mbava

Kiraiimia [19851 TLR 44 where the Judge referred to a British

case which warned the courts not to rely solely on the words

of the child as against the family welfare. Further that,

although the trial court granted custody to the respondent

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basing on the child's wishes there is evidence that all along

the appellant had been supplying the respondent with

maintenance allowance and health insurance. Further that,

even though the child was above 7 years the trial court did

not consider granting custody to the father (appellant).

On the 2nd ground, Mr. Materu argued that the trial court

referred to the case of Jerome Chilumba V Amina Adam

[19891 TLR 117 HCD which directs the court to hold an inquiry

on means of earning of both parents before making an order

for maintenance. He argued that, the appellant tendered

Exhibit R2 salary slip which showed that, his take-home is Tshs.

508,701.03/= while the respondent who is a Secretary at

Tumaini University Makumira - Arusha never mentioned her

salary and the court did not bother to inquire into her salary

or income.

He further argued that, under the 4th schedule of the

Magistrates, Courts Act Para 3 (3) (c) (iii) provides that

maintenance should not exceed 2/3 of the salary, thus 1 /3 of

the appellant’s salary amounts to Tshs 166,567/= only.

Therefore, the court did misdirect itself on this aspect by

ordering Tshs. 200,000/= per month, an amount which is too

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high as compared to his take home. He prayed that the

appeal be allowed with costs and the appellant permitted

to pay Tshs. 50,000/= monthly plus health insurance which he

has been paying all along.

Contesting the appeal on the 1st ground, the respondent

argued that a child has been with her since childhood and

the appellant had deserted them for over 2 and 1/2 years.

She had to go to the social welfare office to seek for

assistance. She further asserted that, the appellant has never

lived with the child, and had disowned her. She described

the appellant as a drunkard with no morals at all. He had

gone to the extent of impregnating their house girl. He has a

habit of living with more than one woman at a time.

Therefore, it was proper for the trial Magistrate to grant her

custody of the child.

On the second ground, the respondent argued that, the

appellant tendered a salary slip showing that his salary was

Tshs. 1,500,000/=. However, he secured a loan in order to

lower the amount and in the course avoid paying the child’s

maintenance. The respondent further contended that, the

appellant has a habit of throwing abuses at her. He has

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openly told her the child is her burden which she has to bear.

She averred that, Tshs. 200,000/= ordered by the trial court

has now accrued to Tshs. 1,200,000/= but the appellant has

only managed to pay Tshs. 660,000/=. He does this purposely

so as to avoid parental responsibility. She was disappointed

by the appellant’s suggestion of providing Tshs. 50,000/= per

month and argued that, the same is too little to cater for

food, school fees and other basic needs which are the child's

rights.

The respondent finally prayed that, she proceeds to live with

the child since before the trial court the appellant had only

prayed for divorce and not the child’s custody. Thus he

cannot make such claims now at the appeal stage.

In his brief rejoinder Mr. Materu reiterated his submission in

chief and pointed out that, it was the respondent who

deserted her matrimonial home just after 3 weeks of marriage

and she refused to go back to the matrimonial home. He also

argued that there is no evidence that the appellant was

cruel or a drunkard and these facts are new in this matter.

The counsel referred to Criminal Case No. 105/2018 which the

respondent instituted against the appellant for the offence

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of neglecting to provide for his child. In that case the

appellant was acquitted after it was established that, the

child was never neglected. In the upshot he insisted the

appeal be allowed.

Before I proceed to determine the merits or demerits of this

appeal, I feel inclined to point out the basic principles

derived from the Law of Marriage Act, Cap 29 R.E. 2019 (the

LMA) and Law of the Child Act, 2009 (the Child’s Act)

concerning the welfare of the child. One, all children have a

right of living with their parents as per Section 26 (1) (a) (b)

and (c) of the Child’s Act. By parents it means a father and a

mother. So no parent has exclusive right over the other on the

issues of marriage even after separation or divorce.

Two, the law is clear that, upon divorce or separation while

dealing with the issue of custody, the paramount concern

should be on the well-being and best interest of the child.

Section 39 (1) of the Child’s Act has pointed out what should

be considered in implementation of the same. It reads;

"(J) The court shall 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. of 14

(2) Subject to subsection (1), the court shall also

consider;

(a) The rights of the child under section 26;

(b) The age and sex of the child;

(c) That it is preferable for a child to be with

his parents except if his right are persistently

being abused by his parents;

(d) The views of the child, if the views have

been independently given;

(e) That it is desirable to keep siblings

together;

(f) The need for continuity in the care and

control of the child; and

(g) Any other matter that the court may

consider relevant"

Moreover, Section 125 (2) of the LMA, has well elucidated

that, when granting custody, the court should have due

regard to the undesirability of disturbing the life of the child

by change of custody and to give paramount consideration

to the best interest of the child. The section reads;

“(2) In deciding in whose custody a child should be

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placed the paramount consideration shall be

the welfare of the child and, subject to this, the

court shall have regard to

la) the wishes of the parents of the child;

(b) The wishes of the child, where he or she is of

an age to express an independent opinion; and

(c) The customs of the community to which

the parties belong."

This position of law has been vehemently fortified in the

esteemed cases of Celestine Kilala and Halima Yusufu vs.

Restituta Celestine Kilala [19801 TLR 76, Mariam Tumbo vs.

Harold Tumbo [19831 TLR 293 and Ramesh Rajput V Mrs

Sunanda Rajput [19881 TZCA, TLR 96.

Coming to the appeal at hand, I will deal with the grounds of

appeal while giving due regard to the position of law and

principles mentioned above. Starting with the 1st ground the

appellant is challenging the trial court’s decision, failing to

grant custody to him. According to him the trial court erred

in relying on the child’s wishes, therefore the decision

reached was not in the best interest of the child. The question

therefore is whether or not the trial court heeded to the

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principles explained earlier when granting custody. The

answer to this is found at page 10 of the judgement where

the learned trial magistrate while considering the issue of

custody made the following findings: -

“From the pleadings and evidence the spouses

were in separation since 2014 and all the time,

the issue Faith had been in the Respondent's

custody. I have called the issue as the court

witness and she wished to be in respondent's

custody on the ground that, the respondent has

been taking care of her.

The child wishes to live with her mother was

strongly challenged by Mr. Materu in his final

submission saying and I quote “the child being

nine years old cannot form an independent

opinion and the court was entitled to disregard

her wishes”. He submitted further by citing the

case of Festina Kibutu V Mbaya Nqaiimba (1985)

TLR 44.

I have also considered the fact that, the

petitioner was not sure if the issue was his

biological daughter until DNA (Exh P4) proof. It

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would be in their best interest if they (sic) remain

in the Respondent’s custody. I therefore decide

the issue FAITH ABEL to remain in Respondent’s

custody. However, the Petitioner should be

allowed to visit his child.”

From this extract I find the trial Magistrate vividly established

that she had the best interest of the child in mind as a

paramount consideration in awarding custody to the

respondent. The trial magistrate correctly, took into account

the evidence on the record and the provisions of section 125

of LMA. The trial Magistrate had considered the importance

of the child having stayed all along with her mother, hence

there was a need of continuity of the said care. It was not

desirable to disturb the life of the child. The court did consider

the fact that there was already stigma that the child did not

belong to the father (appellant). More so the court had

taken initiative to summon the child just to get her opinion.

Adding up all these facts, it is open truth that, it was in the

best interest of the child that custody be granted to the

respondent. The appellant had failed to convince the trial

court to hold otherwise. The 1st ground therefore fails.

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Coming to the second ground of appeal, it should be noted

that, parents must strive to see their separation and/or

divorce does not have an impact on their children. The best

interest of the child should be their focus, if truly they have the

child’s well-being at heart. It is only through that guidance

the child's well-being and best interest will prevail. Similarly,

the one having custody of the child should not use that as a

tool to punish the other parent not having the custody. The

same applies to the financial position of both parents where

courts are required to first make inquiries before granting

maintenance orders.

Before the trial court, such inquiry was never made, the trial

Magistrate relied on the appellant’s income i.e. salary slip

which was annexed in his final submission. The same was not

pleaded or tendered as evidence during trial thus she erred

relying on the same as guidance to order for the child's

maintenance. The calculations made by the learned council

Materu in this appeal regarding the salary slip therefore

cannot hold water since the same was not admitted as

evidence.

The foregoing notwithstanding, taking into consideration that

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the appellant is a school teacher, I consider the amount of

Tshs 200,000/= per month and education expenses as

ordered by the trial court reasonable to cater for

maintenance of his child. The duty to maintain the issue is

statutorily directed to the father as per Section 129 of the LMA

no matter with whom the child lives with. More so,

considering the current economic climate, the amount

ordered does not suffice to assist in providing all the basic

needs of a growing child plus education costs. It is thus

obvious that the respondent being employed as a Secretary,

will have her inputs in maintaining the child too. After all both

parents have an obligation of providing for their child as

provided for under Sections 8 (1) and (2), 9 (1) and (3) and

26 (1) of the Child’s Act (Supra). Therefore, I find no concrete

reason to fault the trial court's amount of money ordered for

maintenance of the issue (Faith). This ground fails with all its

weight.

In light of the above analysis, I find this appeal devoid of

merits and hence proceeds to sanction the same to a

dismissal with no costs.

It is so ordered.

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A----------------B. R. MUTUNGI

JUDGE 10/9/2020

Read this day of 10/9/2020 in presence of both parties.

>----------B. R. MUTUNGI

JUDGE 10/9/2020

RIGHT OF APPEAL EXPLAINED.

» )B. R. MUTUNGI

JUDGE10/9/2020

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the high court of the of tanzania moshithat their marriage hardly lasted for three weeks when all...

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