FESTINA KIBUTU v MBAYA NGAJIMBA 1985 TLR 44 (HC)

FESTINA KIBUTU v MBAYA NGAJIMBA 1985 TLR 44 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kazimoto J

23 September, 1986

(P.C.) CIVIL APPEAL 64 OF 1985 B

Flynote

Family Law - Custody of children - Child born out of a void marriage - Whether the

mother of the child has an absolute right to custody.

Family Law - Custody of children - Child expresses wishes with whom she wants to

live - Whether such wishes to be given weight. C

Family Law - Maintenance - Assessment of - Factors to be taken into consideration.

Family Law - Custody of children - Factors to be taken into account before giving

custody of a child to a party.

-Headnote

Marriage between the appellant and the respondent was declared null and void

because the respondent was D incompetent to marry under the provisions of section

38 (c) and (e) of the Law of Marriage Act, 1971. When the marriage was annulled the

appellant was five months pregnant. She then gave birth to a baby girl. When the E

child was two years old the respondent instituted proceedings for the custody of the

child. The Primary Court awarded him custody of the child. On appeal by the

appellant to the District Court the decision of the Primary Court was overruled.

Custody was given to the appellant until the child reached the age of seven years.

The F court ordered the respondent to pay Shs.50/= a month towards the

maintenance of the child.

When the child reached the age of seven years the respondent sought to be given

custody of the child. The case was before a Primary Court which heard both the

parties and also heard the child who expressed that she wished G to live with the

appellant. Custody of the child was given to the respondent. The appellant's appeal

to the District Court was not entertained.

She appealed to the High Court challenging the award of custody of the child to the

respondent. She also attacked the maintenance award as being too low. H

Held: (i) The mother's entitlement to custody of a child born out of a void marriage is

not absolute; it is conditional upon the absence of agreement between the parties or

court order vesting custody to another person;

(ii) the wishes of a child of tender age should not be permitted to subvert the

whole law of the family or I to prevail against the desire and

1985 TLR p43

KAZIMOTO J

authority of a parent unless the welfare of the child cannot otherwise be secured; A

(iii) under the circumstances of this case it was not in the best interest of the

child to have given custody to the respondent which would have adversely affected

her educationally and psychologically; B

(iv) in deciding what amount of maintenance should be paid the court should

hold an enquiry as to the means of both parents in order to arrive at a just decision;

where applicable the court should take into account the customs of the parties and

the conditions prevailing at any particular time. C

Case Information

Appeal allowed.

Cases referred to:

1. Abdallah Salum v Ramadhani Shemdoe [1968] H.C.D. n.129

2. Re O'Hara [1900] 2 IR 232 D

3. Juma Kisuda v Hema Mjie [1967] H.C.D. n. 188

F. Mbuya, for the appellant

Komba, for the respondent E

Judgment

Kazimoto, J.: The appellant is appealing against the decision of the Courts below

which granted custody of a child born out of the void marriage to the respondent.

This appeal has a chequered history and I will explain. In 1974 the appellant and

respondent were married and on 31st December, 1974 their F marriage was declared

null and void. At that time the appellant was five months pregnant. She gave birth to

a baby girl in 1975. These proceedings concern this child. In 1977 the respondent

instituted proceedings for the custody of the child. This was in Kimamba Primary

Court Civil Case No. 13 of 1977. The Primary Court G awarded custody of the child

to the respondent. The appellant appealed to Kilosa District Court in Civil Appeal

No. 9 of 1977. The appeal was allowed and the child was placed in her custody until

she reaches the age of seven years and at the same time the District Court made an

order that the respondent should pay Sh.50/= per month towards maintenance of the

child. The judgment of the District Court was delivered on 20th October, H 1977.

On the following day, that is on 21st October, 1977 the same magistrate made the

following order which read as follows:

Order: In this case, upon considering the circumstances of the case and under

the Law of Marriage Act 1971 I find that I the

1985 TLR p44

KAZIMOTO J

issues in this case are matrimonial matter in that to be decided under the Law

of Marriage Act. If that is so the appeal to A this Court should not have been

entertained as per Section 80 of the Marriage Act 1971, wherefore this appeal should

have been lodged straight to the High Court. This appeal thus as I say was wrongly

entertained and determined in this B Court and I hereby DECLARE THE APPEAL

JUDGMENT TO THIS CASE AS TOTALLY A NULLITY. The records are to be

prepared and forwarded to the High Court meanwhile the parties should be informed

of this Musing. (sic). C

There is nothing on record to suggest that the file was forwarded to the High Court.

Nor is there evidence to show that the parties were informed. Be that as it may no

further steps were taken by either party until in 1984 D when the respondent

decided to execute the decree in Civil Appeal No.9 of 1977 before Kimamba Primary

Court. The Primary Court Magistrate heard both the appellant and the respondent.

The Primary Court Magistrate also heard the child in question and enforced the

decree by awarding custody to the Respondent. It ordered the respondent to pay

arrears amounting to Shs.5,200/= to appellant as maintenance. The appellant was E

dissatisfied and she appealed to the District Court at Kilosa in Civil Appeal No. 18 of

1984. The district Court struck off the appeal from the register. The appellant is

appealing against that decision on six grounds as follows:

(1) The learned District Magistrate had no jurisdiction to strike out the

appeal. F

(2) The learned Magistrate erred in law in holding that the respondent as

father of a child born out of void marriage is entitled to the custody of a child born

out of such void marriage. G

(3) The learned Magistrate erred in failing to consider the welfare of the

child in awarding custody of the child to the respondent.

(4) The learned magistrate erred in failing to consider the rise in the cost

of living in assessing the amount of maintenance to which the child was entitled. H

(5) The learned magistrate erred in failing to take into account the fact that

the child had clearly stated she would like to live with the appellant and not with the

respondent.

(6) The learned magistrate failed to take into consideration the fact that

the child never knew her father and has never lived with her father since she was

born in 1975. I

1985 TLR p45

KAZIMOTO J

On the first ground of appeal Mr. F.S. Mbuya learned counsel for the appellant has

argued that the District A Magistrate has no jurisdiction under the Magistrates'

Courts Act 1963 Cap 637 and Magistrates' Courts Act. No. 9 of 1984 to strike out the

appeal. He submits that the learned District Magistrate was wrong in striking out B

the appeal. As regards the second ground of appeal, the learned counsel has

submitted that the respondent is not entitled to custody of a child born out of void

marriage and referred the court to the Local Customary Law Declaration Order GN.

279 and Section 128 of the Law of Marriage Act, 1971 where it is stated that a mother

of child born out of a void marriage is entitled to the custody of the child born out of

such void marriage. He C further argued that from the proceedings it is clear that

the child has always been in the custody of the appellant who has provided for her

maintenance, that the child has never lived with the respondent and she even does

not know him. It is submitted by learned counsel that the magistrate, erred in not

considering the welfare of the child D when it ordered that the respondent should

have custody of the child. Mr. Mbuya further submits in support of ground four that

the magistrate did not take into account, when he ordered maintenance of Shs.50/=

per month, the rise in the standard of living and the rate of inflation. He submits that

Shs.50/= per month was clearly E inadequate. He referred the court to the case of

Abdallah Salum v Ramadhani Shemdoe [1968] HCD No.129 in support of his

submission. In further support of his argument on the point he referred to the

Affiliation Act which fixes the rate of maintenance at Shs.100/=. On the fifth ground

Mr. Mbuya learned counsel argues that the child has expressed her wishes to live

with the appellant. He submits that the court should not have F disregarded the

views of the child. As regards the last ground Mr. Mbuya has submitted that it has

been covered by the previous grounds and prays that the appeal be allowed, the

judgment and decree of lower court be set aside and the appellant be awarded

maintenance at the rate of Shs.600 per month for the last ten years including G

educational costs and that the respondent be condemned to pay costs of this appeal.

On the other hand Mr. Komba learned counsel for the respondent has strongly

submitted that on record there was no judgment on 4th October, 1984 from which

this appeal could arise. On ground one of appeal Mr. Komba has submitted that the

H district magistrate was right in striking out the purported appeal as the appellant

was also the appellant in Civil Appeal No. 9 of 1977 which was allowed in her favour.

If she was dissatisfied, argues Mr. Komba, she should have appealed against the

decision. She did not do so and Mr. Komba submits that the matter is res judicata I

and she cannot appeal. Regarding ground two Mr. Komba has submitted that the

appellant was married to the respondent and a

1985 TLR p46

KAZIMOTO J

certificate of marriage was issued. He further told the court that according to the

certificate of divorce dated 31st A December, 1974 the appellant was five months

pregnant and that the appellant does not dispute that the respondent is the father of

the child. He submits that as the child is above seven years he is, in law, entitled to

the B custody of the child. Regarding the welfare of the child Mr. Komba has

submitted that the magistrate considered that fact that the respondent is better placed

to take care of the child as he is a rich man and that at present the child is living with

the respondent and that the appellant is married to an unemployed man with three C

children. Mr. Komba further submitted in reply to ground four of appeal that the cost

of living in 1977 was lower than in 1986 and that if appellant was not satisfied with

the order of maintenance she should have appealed against it. As regards ground five

and six of appeal Mr. Komba has submitted that the allegations are not true. He

argues that the child knows the respondent, that she is living with him and he is

paying for her education and D maintenance. He therefore prays that the appeal be

dismissed with costs, that the decision of the lower court be upheld.

In a brief reply Mr. Mbuya has submitted that the problem in this appeal stems from

Civil Appeal No. 9 of 1977 which was declared a nullity by the same magistrate and

that therefore the Primary Court cannot implement a E judgment which is a nullity.

As regards custody Mr. Mbuya has submitted that under Section 133 of the Law of

Marriage Act 1971 the Court has power to vary or rescind any order of custody or

maintenance of an infant on the application of any interested party. He submits that

the appellant is requesting the court to invoke Section F 133 of the said Act.

Regarding the welfare of the child Mr. Mbuya invites the court to consider the

provisions of section 125(2) of the Law of Marriage Act, 1971. The appellant has sent

the child to a boarding school. I am prepared to assume that this has been done with

the blessing of the appellant's husband. The respondent is, G according to the

record, married to two wives. There is further evidence that the respondent did not

make the payment of Shs.50/= maintenance costs ordered by the court. The Court has

been told that the respondent is a rich man. These are some of the factors which

should be taken into consideration in this case.

As regards Mr. Mbuya's complaints that the court did not give effect to the wishes of

the child I am of the H considered view that the court is entitled to disregard her

wishes. She was about nine years old and I am not persuaded that a child of that age

is capable of forming an independent opinion. Secondly, and as already noted above

she has lived with the appellant ever since she was born and as further stated she did

not know the I respondent. It was therefore expected of her and I think natural that

she should have preferred to live with the appellant

1985 TLR p47

KAZIMOTO J

whom she knows rather than with respondent a stranger to her. Regarding wishes of

children in custody A proceedings Fitzgibbon L.J. stated in Re O'Hara (1900) 2 IR

2323 at page 240 as follows:

... The wishes of a child of tender age must not be permitted .... to subvert the

whole law of the family or to prevail against B the desire and authority of the parent,

unless the welfare of the child cannot otherwise be secured.

The child being nine years old cannot form an independent opinion and the court was

entitled to disregard her C wishes. But I think as I have tried to illustrate above the

magistrate did no consider the welfare of the child when it awarded custody to the

respondent. The child has been in a boarding school. The respondent did not

maintain the child since she was born despite the court order to pay monthly

maintenance since 1977. He paid the lump D sum when he was given custody of the

child in June, 1984. Appellant's husband appears to have regarded the child as his and

with his support has the child been educated in a boarding school. I think that under

the circumstances it was not in the best interest to have given custody to the

respondent which would have adversely E affected her educationally and

psychologically. That ground succeeds. This also disposes of ground 2 of appeal.

I now come to ground four of appeal. It concerns the amount of maintenance. Mr.

Mbuya has strongly attacked the award of Shs.50/= per month as maintenance as

being inadequate. Mr. Komba has countered by submitting F that if she was

dissatisfied she should have appealed. I agree with Mr. Komba that the appellant

should have appealed if she were dissatisfied but in view of the manner the district

magistrate handled the case I hesitate to attribute the blame to the appellant. I will

deal with that aspect shortly in the following grounds of appeal. In deciding what

amount of maintenance should be paid the court should hold an enquiry as to the

means of both G parents in order to arrive at a just decision. The court should,

where applicable, take into account the customs of the parties and the condition

prevailing at any particular time. In Abdallah Salim v Ramadhani Shemdoe. [1967]

HCD 55 where Georges C.J. (as he then was) was confronted with the issue of

"Mtonga" i.e. one cow,(as he then was) was confronted with the issue of "Mtonga" i.e.

one cow, as the traditional reward of H maintaining a child of another he had to

overrule the decision on the ground that it was not enough at the present (that was in

1967) to bring up a child and educated him for the value of a cow (which was by then

costing Shs.50/=). That decision was followed by Said J. (as he then was) in Juma

Kisuda v Hema Mjie [1967] I HCD.188. In both cases the maintenance was

increased. In increasing the amount

1985 TLR p48

KAZIMOTO J

of maintenance the court took into account the "village life" in both Lushoto and

Singida Districts and assessed A maintenance at Shs.100/= per month. The

proceedings in the present appeal were instituted in 1977. It can be said that village

life in Kilosa District in 1967 is the same as in most Districts, in this country. If that is

accepted B then Shs.50/= was clearly inadequate. But village life in 1977 could never

be the same as in 1967. There have been great social and economic changes affecting

the whole rural life which has been turned into semi urban life. People have moved

into new village settlements. These moves have affected the standard of living.

Certainly C Shs. 50/= was not enough to buy the essentials for a child. From what

has transpired in this appeal the appellant is a wealthy man. Had the learned

Magistrate considered these factors he would not have made the order of

maintenance of Shs. 50/= per month.

On ground 2 of appeal the issue is whether the respondent as father of a child born

out of void marriage is D entitled to the custody of such a child. It is not disputed

that the respondent is the father of the child. It is admitted that the appellant was

made pregnant by the respondent before they were divorced on the grounds that the

marriage was null and void as the respondent was incompetent to marry under the

provisions of Section 38(c) E and (e) of the Law of Marriage Act 1971. Mr. Mbuya

submits that under Rules 178 and 181 (c) of the GN. 279 of 28th June, 1963 and under

Section 128 of the Law of Marriage Act 1971 children born out of void marriage

belong to the matrimonial side. Mr. Komba has submitted that as there was a valid

marriage during which the child was conceived the respondent is entitled to the

child. Section 128 provides: F

128. Where a marriage is a nullity or is annulled under Section 96 the mother

shall, in the absence of any agreement or order of court to the contrary, be entitled to

the custody of the infant child, if any, of the marriage. G

In my view the mother's entitlement to custody of such a child is conditional upon

the absence of agreement between the parties or whether the court makes no order to

vest custody to another person. Section 128 quoted above does not confer absolute

entitlement to the appellant and the court has discretion to decide to whom the child

should be placed. H

Ground number one of appeal deals with the jurisdiction of District court to strike out

appeals. As stated by Mr. Mbuya and I think correctly so, powers of the District

Court on appeal or revision are contained in section 16 I and 17 of Cap. 537 the law

applicable when appeal was heard by District Court. These Sections did not vest on

the District Court with powers to strike out an appeal. It was therefore clearly wrong

1985 TLR p49

for him to strike out the appeal. Mr. Komba then submitted that there was no

judgment on 4th October, 1984 A from which an appeal can lie. The learned district

magistrate had made an order and an order of a district court is appealable at the

instance of an aggrieved party under Section 21 of Cap. 537 and now section 25 of the

Magistrate's Courts Act. No. 2 of 1984. The Appeal against that order is clearly

competent. B

For the reasons given above the appeal is allowed. The judgment and decree of the

district court is set aside. It is ordered that the appellant should have custody of the

child and respondent should pay Shs. 250/= per month as maintenance for 10 years

from 1977 as her cost of maintaining the child. She is also granted costs of this C

appeal and the court below.

Appeal allowed.

1985 TLR p49

D