Imkel Hella Campbell-Smith vs Douglas William Campbell-Smith (Misc. Civil Application No. 84 of 1999) [1999] TZHC 528 (6 August 1999)

IMKE HELLA CAMPBELL-SMITH v. DOUGLAS WILLIAM CAMPBELL-SMITH 355 IMKE HELLA CAMPBELL-SMITH v. DOUGLAS WILLIAM CAMPBELL-SMITH HIGH COURT OF ZANZIBAR ATVUGA (Garba Tumaka, D/C.J.) MISC. CIVILAPPLICATIONNo. 840F 1999 Civil practice and procedure - Judgment - Foreign judgment - Regard given to a foreign judgment on a matter adjudicated upon between the same parties

• Section 8 of the Civil Procedure Decree Chapter 8. Civil practice and procedure - Judgment - Foreign judgment - Presumption that a foreign judgment was made by a Court of competent jurisdiction - Section 9 of the Civil Procedure Decree Chapter 8. A B C D E F G H

356 TANZANIA LAW REPORTS [2000] T.L.R. A The applicant, a German national, married the respondent in 1994 and they lived in Germany with their son, born in December 1996. Divorce proceedings were instituted in a district family Court in Germany. The respondent then left Germany and, contrary to their visitation agreement, took the child with him to Zanzibar. The applicant then B applied to the same district family Court in Germany for full custody of the child and was granted. She then made this application to the High Court of Zanzibar for enforcement of the order of custody. C D E F G H Held: (i) Pursuant to section 8 of the Civil Procedure Decree Chapter 8, this court treats the decision of the German Court as conclusive regarding the matter adjudicated upon between the parties. (ii) Pursuant to section 9 of the Civil Procedure Decree, this court is compelled to presume, upon the certified copies of the German Court decisions produced in court, that the decisions were made by a court of competent jurisdiction; (iii) Section 38(1) of the Decree empowers this court to enforce the order for custody delivered by the German Court; the order is consonant with our own case law according to which the welfare of the child is given the greatest importance in custody proceedings, and would grant custody of a child of tender years to the mother unless there are strong reasons against that. Application allowed Case referred to: (l) Ramesh Rajput v. Mrs. Sunanda Rajput (1988] T.L.R. 96 Statutory provisions referred to: (i) Civil Procedure Decree, Chapter 8, sections 8, 9, 38(1), 35 and Orders XVII, rule 3 and XXIV, rules 7 and 8 RULING (Delivered0 6 August 1999) GARBA TUMAKA, D/C.J.: This is an ex-parte application made under sections 9, 35, 38(l)(e) and Orders XVIII, rule 3 and XXIV, rules 7 and 8 of the Civil Procedure Decree Chapter 8; praying for: I

IMKE HELLA CAMPBELL-SMITH v. DOUGLAS WILLIAM CAMPBELL-SMITH 357 (1) This court's enforcement of the custody order made in the Republic A of Germany, in the District family Court of Worms, by Judge Decker on the 9 June l 999. (2) The Costs of this application to be borne by the respondent. (3) Any other relief the court may deem fit just and equitable. The application was supported by a (16) Sixteen paragraph affidavit deposed to by the applicant and counsel relied on all the paragraphs. The application was brought under certificate of urgency and made ex parte. The affidavit, in summary is to the effect that: B C (i) The applicant, who is a German citizen, is married to the respondent, D a British national and they were married in 1994. (ii) They (applicant and respondent) lived together as husband and wife in Germany from 1994 to 1999 with their son Alexander, who was born in December, 1996. E (iii) That on the 6 May I 996, divorce proceedings were initiated in Wonns family Court in Germany whereat both parties were represented by their counsel. (iv) That the respondent, in violation of their visitation agreement, left the country with their child. F (v) The applicant then made an application to the Worms family Court requesting for the full custody of their child, in the presence of G their two counsel, which order was granted, a copy of which is attached to this affidavit. (vi) Upon discovering that her husband, the respondent had brought the child to Zanzibar, she had come to have him returned to her as ordered by the court. Going through the provisions of section 8 of the Civil Procedure Decree, Chapter 8, I am compelled to treat as conclusive, a foreign judgment as to any matter thereby directly adjudicated upon, between H I

358 TA N ZA N LA LAW REPORTS [2000]T.L.R. A the same parties save where they fall within the exceptions listed in paragraph (a) - (f). This court is further compelled by section 9 of the same Decree, to presume, upon production of any document purporting to be a 8 certified copy of a foreign judgment (Annexures A I and A2 in the instant case) that such judgment was produced by a court of competent jurisdiction, unless the contrary appears on the records (and none so appears in this case). C D Importantly, this court believes that the applicant has satisfied the procedural requirement requisite for his application to succeed i.e. by fulfilling the provisions of Orders XVIII and XXIV of the enabling law, the Civil Procedure Decree Chapter 8, as regards notice and format of application. Section 38(1) of this Decree empowers this court to enforce the custody order of Judge Decker of the district family Court of E Worms delivered on the 19 June 1999, which judgment is in itself consonant with our case law as embodied in the decision of the Court of Appeal of Tanzania in the case of Ramesh Raj put v. Mrs. Sunanda Rajput (1) at 97, where it was inter alia held that: F (i) The most important factor in a custody proceeding is the welfare of the child. G (ii) An infant of two (2) should be with the mother unless there are very strong reasons to the contrary, and (iii) There is a rebuttable presumption that an infant below the age of 7 years should be with the mother. To me, enforcement of judgement basically translates to causing u the decisions of a judicial tribunal to take effect or to compel obedience to it. Consequently, upon consideration of the applicants submissions and perusal of annexures AI and A2, I am of the firm opinions that 1 this application succeeds.