Donatila Exaveri. Perekimas Twamgambo 1. Ruling

Transcription

1 Donatila Exaveri v. Perekimas Twamgambo 1 Ruling Nchalla, J. This is an ex-parte application under Section 390 (1) (6) of the Criminal Procedure Act, and Rule 2 of the Habeas Corpus Rules, 3 and any other enabling provisions of these laws. Mrs. Tenga, who was acting for the applicant, applied to the Registrar under a certificate of urgency that the application be heard and determined expeditiously. The reasons given for this urgency, to quote Mrs. Tenga's letter, are "that the infant children, the subject matter of this application had been taken away from their mother for over five months now (that was on ). This is causing serious anxiety on the part of their mother," I do not have much clamour about this certificate of urgency, but only if the application is properly filed and is tenable. This will be seen later in my findings. On the day of hearing this application, Mrs. Tenga never appeared to argue this application, instead Miss. Mandari learned advocate held Mrs. Tenga's brief, and was duly instructed to argue the application. The application is supported by an affidavit duly sworn by the applicant Donatila Exaveri. I have read the applicant's averments contained in her affidavit. I also heard Miss. Mandari who anxiously and vehemently argued this application. Miss Mandari exhibited a dint of women liberation in her arguments in support of a cause affecting a party of her gender. I listened very carefully to Miss. Mandari's forceful argument, but I was always on guard and careful not to 1 High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Appeal No. 87 of 1989 In the Matter of an Application by Donatila Exaveri for Issue of Directions in the Nature of habeas corpus and In the Matter of Maria Innocent Twamgambo, Pendo Innocent, John Innocent (Children) (Unreported). Nchalla, J. (as he then was). Ruling delivered in chamber at Dar es Salaam on 14th October, 1989 in the absence of both parties. 2 Act No. 9 of Government Notice No. 150 of 1930.

2 attract feelings or suspicion in her about woman chauvinism of misogyny to which most women fall prey in such situations. Miss. Mandari stated that the applicant lived in concubinage with the father of the children, the subject matter of this application. They so cohabited for eight years in Dar es Salaam, during which period four children were born of their union. Those children are namely Maria aged 7 years, Pendo aged 6 years, John aged 2 1/2 years and, lastly, Frasidya aged 1 1/2 years. The father of the children, one Innocent Twamgambo died in March, 1989, and was buried at his father's homestead in Karagwe District. The respondent is the father of the deceased Innocent, that is, the grandfather of the named children. Up to the death of Innocent no legal marriage had been contracted between the parties, although a presumption of Marriage could perfectly be raised under Section 160 of the Law of Marriage Act, It is stated that after the funeral of the deceased Innocent which funeral took place at the home of his father, the respondent chased the applicant from his house and detained the four children. The applicant made complaints to the C.C.M. office about respondent's act of detaining the children. The C.C.M. intervention in the matter resulted to the release of only the last born of the four children who appears to have been still breast feeding at the material time. Miss. Mandari submitted that, the respondent, who is only the grandfather of these children, has no right of custody of those children. So, in law, the respondent has unlawfully detained those children and, in the circumstances, a writ of habeas corpus can properly be issued by this court against him. Miss. Mandari submitted that the applicant is both physically and financially able to sustain the children. She is a petty trader and also does some farming on a 5 acre piece of land in Mbezi area, Dar es Salaam Region. Miss. Mandari stated that the respondent is mis-treating the said children, and that their health has been impaired. However, no medical evidence was produced or annexed to support this allegation. The same has therefore not been proved. Miss. Mandari also prayed that an order be made by this court under rule 7 of the Habeas Corpus Rules that the said children be released to the applicant, pending the return of the summons. 4 Act No. 5 of 1971.

3 In support of this application Miss. Mandari cited the decision of this court in Naamini Mtera v. Mboka Mwambapa and Another 5 decided by my learned brother Judge Maina. In that case my brother Judge Maina held as follows: "Having heard the learned Counsel for the applicant, and upon reading the affidavit in support of the application, I am satisfied that the applicant is the natural mother of the child Mboka Mwambapa. The said child was forcibly taken away from its mother allegedly by the two respondents (who were grandmother and aunt respectively). It is hereby ordered under Rules 3 and 4 of the Habeas Corpus Rules that summons be issued to the two respondents Mboka Mwambapa and Tunga Kilonzo." I have read the ruling of my brother Judge Maina in the case cited above. However, it is not certain whether the facts of that case are similar to the facts in this instant case. It was not also stated in that case whether the parents belonged to the same tribe as do the parents in the instant case. It is also not stated in that case, like in the present case, whether the father of the child, Mboka legitimized the child in question under customary Declaration Rules or not. To me those factors inter alia, are crucial to the determination of the instant case, and, indeed even in the case that was decided by my brother judge Maina. In the circumstances, I am not the least persuaded that the decision of this application ought to follow suit to the decision in Naamini Mtera's case cited herein. Before I go to decide on the substance of this application, I must first say something about a serious irregularity that transpired in the filing of this application. The application does not indicate the date when the same was filed. The application was not even signed either by the Registrar or any authorised court official to prove that the application was duly presented for filing on a particular date. There are only darted statements on these crucial elements. Moreover, I have perused through the record, but I have not been able to trace the copy of receipt for which the applicant paid fees for filing this application. It is quite possible that this application was filed without the requisite fee having been paid. These irregularities are fatal to the application, and this court would be minded to settle its decision of this application on merely those irregularities. But I wish to go further and make a finding on whether, despite of these irregularities, this application is properly before this court, and whether the same is tenable. 5 High Court of Tanzania at Dar es Salaam, Miscellaneous Civil Case No. 64 of 1987 (Unreported).

4 This application is seeking for an order of habeas corpus which is a prerogative writ. As far as I am aware, the practice of the High Court in such application is that the applicant has first to apply for leave to apply for the said writ. The applicant cannot straight away apply for issue of the writ without first obtaining leave to apply for the same. In the circumstances, this application which has been filed without leave is incompetent, and the same stands for dismissal. Moreover, the prerequisite for applying for the writ of habeas corpus are, inter alia, that there must be a prima facie case that the act complained of does really exist. In this case the applicant had a duty to prove that the respondent is unlawfully detaining the children in question. It is averred that the respondent is the paternal grandfather of these children who were born out of wedlock, but under concubinage of their parents for eight years. As I have said already, the parents of these children could be presumed married under customary law in view of Section 160 of the Law of Marriage Act, It is not averred when these children first started living with the respondent. Is it after the death of their father, or before he died? If those children were living with the respondent before their father died, then I do not see how the act of unlawful detention of those children would be imputed on the respondent. Even if those children started residing with the respondent upon the death of their father, still it cannot be said in law that the respondent, the grandfather of those children, is detaining those children, sufficiently to invoke the provisions of the Habeas Corpus Rules on the respondent. I am afraid, to invoke those rules will amount to an abuse of those rules and the court process. There is nothing criminal or unlawful that the respondent has committed in relation to his act of providing custody to those children - his grandchildren, after the death of his own son. So, I find that no prima facie case has been established by the applicant, under the circumstances, to entitle this court to issue summons to the respondent under the Habeas Corpus Rules and under Section 390 (1) (a) (b) of the Criminal Procedure Act, Moreover, in order to merit for issue of the summons applied for, the applicant was required also to prove that no other remedy or redress is available for the act complained of, other than the order of habeas corpus. I am of the considered view that this condition has not been established. On proper consideration of the facts of this matter, I am satisfied that the act complained of by the applicant can have redress before the relevant Primary Court under customary law, to wit, the 6 Act No. 5 of 1971.

5 Local, Customary (Declaration) Orders 7 which are applicable to Karagwe District where the parents of the children and the respondent belong. The issue here is primarily one of custody of the children whose father is dead. Under Government Notice No. 279 of 1963 there is Rule 181 (A) (B) (C) which reads, and I quote: 181 A. Baba ana haki za kuhalalisha watoto wake wasio halisi wakati wowote kwa kumuoa mama yao. [The father has the right to legitimize his children who are illegitimate at any time by marrying their mother]. B. Kama mtu akitaka kumhalalisha mtoto wake bila ya kumwoa mama yake anaweza kufanya hivyo kwa kulipa fidia shilingi 100/= kwa baba ya msichana kabla mtoto hajaacha ziwa. [If a person wants to legitimize his child without having to marry the child's mother, he can do that by paying a fine of Shs. 100/= to the father of the girl (the mother of the child) before the child is weaned]. C. Mahala atakapoishi mtoto patakubaliwa na baba na mama wa mtoto au wakishindwa kukubaliana basi patawekwa kwa amri za baraza. Kwa hali yoyote baba atakuwa na wajibu wa kumtunza mtoto. [Where the child will reside will be agreed upon by the father and the mother of the child or if they do not agree then it will be as per the order of the Baraza (Council). Whatever decision is reached, the father has the duty of providing maintenance for the child]. Considering the provisions of this rule, indeed, we are not told whether or not the deceased father of these children legitimized these children by payment of the prescribed amount of shs. 100/= per child before they were weaned. This is an important issue for consideration and determination. But the most important part of the provision relevant to this case is (C) which provides that, in the event of disagreement as to custody of the children the matter will have to be referred to the Baraza for determination. And Baraza under these rules means a Primary Court having jurisdiction in the district in which the rules apply. To me it does not matter in this case that the dispute of custody of the children is between mother and grandfather of the children, and not between the mother and father of the children as this Rule would seem to imply. 7 Government Notice Nos. 279 and 436 of 1963.

6 Then there are Rules 2, 3 and 4 of Rules of Inheritance of the Declaration of Customary Law, First Schedule, the Law of Persons, Rules of Custody or Guardianship of Children. These rules provide, and I reproduce them: 2. Mlinzi wa watoto wadogo waliofiwa na baba atawekwa na baraza la ukoo. [The Guardian of young children who have lost their father shall be determined by a Clan Council] 3. Ikiwa mtoto wa kiume wa kwanza ni mtu mzima, ndiye atakayewekwa kuwa mlinzi wa watoto wadogo wenzake akiwa yeye ni mwenye akili na ana tabia nzuri. [If the first male child is an adult, then he will be the guardian of the other children if he is of sound mind and good conduct] 4. Ikiwa mtoto wa kiume wa kwanza hafai, atawekwa ndugu mwingine wa ukoo wa marehemu. [If the first male child is unsuitable, then guardianship will be given to another relative of the family of the deceased] Under these rules, as far as custody or guardianship of children whose father is dead is concerned the mother does not feature anywhere in that order. Also it is my considered view that the issue of custody of these children ought to be determined along with the issue of the administration of the deceased's estate, that is, the estate of the late Innocent, the father of these children which cause has not been filed and determined. In the circumstance and for the foregoing reasons, I am of the considered view that this application is both incompetent and untenable. The same is not properly before this court. I consequently dismiss this application. As the application has been heard ex-parte. I make no order for costs. The applicant is advised to file her case in the relevant Primary Court in compliance with this ruling. Application dismissed. 8 Government Notice No. 436 of 1963.