anna nyamarasa masiko vs george wayda nangay 2023 tzhc 20271 17 august 2023

IN THE HIGH COURT OF TANZANIA

MUSOMA DISTRICT REGISTRY

AT MUSOMA CIVIL APPEAL NO. 22 OF 2022 (Originating from Juvenile Court of Bunda in Misc. Application No. 14/2022) ANNA NYAMARASA MASIKO......................................................... APPELANT

VERSUS GEORGE WAYDA NANGAY...................................................... RESPONDENT

JUDGMENT 03d & 136 August, 2023 M. L. KOMBA, J.: Appellant and respondent had a child, a girl who was born on 05/01/2017. From birth, appellant was taking care of her when living with respondent mother till August, 2018 when appellant was returned to her mother. In a friction of time, she returned and continued to live with relatives of respondent. Periodically, during holidays the child was taken to respondent's mother. In august, 2022 respondent mother took the child and did not return to the appellant on ground that, the child was under treatment in Bugando. She "forcefully" took the child from her grandmother in Mwanza to Bunda, the action which force the two (appellant and respondent mother) were referred to reconciliation to social welfare officer at Bunda who failed to reconcile the parties. Page 1 of 8 Respondent is the one whom filed application to District court seeking custody of the child for her better upbringing and welfare after finding that appellant failed to take good care of the child while respondent was sending appellant pocket money for up keeping the child but that was not done as the child was found with malnutrition and other deceases. Due to along clinic calendar, respondent find a better school for his child and started to attend Nyakahoja Primary School. The juvenile court granted custody of the child to respondent; and appellant was allowed to visit her child at any time. Appellant was not pleased by the order of the court hence this appeal folded with two grounds that; 1. The Trial Magistrate errored in law and facts to give an order for custody without considering statutory factors when granting the same.

2. That the trial Magistrate misdirected himself in granting the order of custody to the respondent without considering the best interest of the child. Upon registering the appeal, service of summons to respondent became difficult and this court ordered substituted service which was done by announcing in Mwananchi Newspaper of 10th May, 2023 at page 25. Page 2 of 8 Being satisfied with the service the appeal was scheduled for hearing and only counsel for the appellant Mr. Ostack Mligo appeared. In his submission he opted to join both grounds and informed this court that the law, under regulation 72 of GN 182 of 2016 direct that when the matter concerning the child is at court, the social welfare officer has to produce inquiry report which will assist the court to arrive to its decision. That social inquiry report must be prepared and the court shall consider social inquiry before making decision. He said the law is couched in a manner to help a child in order to see the environment are conducive for the child welfare and meet the requirement of the Law of The Child, Cap 13 which insist the court to consider the opinion of social welfare as in S. 43(1) and (2). It was his submission that so far as there was no social inquiry report, the law was violated. Further he submitted that the best interest of the child was not considered. The child was five years old when the case was in

court. Counsel submitted that she was still young, being a girl child, he finds it necessary for her to stay with her mother for the betterment of the child. And therefore Section 39 of Cap 13 was not adhered and the Juvenile court errored on this. He prayed this court to nullify the Juvenile court proceedings and set aside judgment, to order the child to be Page 3 of 8 placed to her mother and when she (child) reaches the age as required by law, father shall make formal application. He further prayed for retrial in case this court finds there was irregularity, to order the child to be placed to her mother when respondent is thinking of re-filing the application. His submission is backed up with the case of Anyingisye Mlawa vs. Tukulamba Kibweja (Civil Appeal 27 of 2020) [2021] TZHC 7104 (5 November 2021). I have careful made a follow up of the submissions by counsel for the appellant and read the record of the Juvenile court. My duty is to determine the appeal fronted before me with its grounds. General I have to determine whether or not the Juvenile court in reaching its decision considered the best interest of the child as provided by law. Nowadays, our country has firm legal position about children and their rights, Cap 13 of the laws has Regulations, the Law of the Child (Juvenile Court Procedure) GN. No. 182 of 2016 which provides; 72 (1) where there is a contested

application for custody or access, the court may direct the social welfare officer to prepare a social enquiry report1 (2) A soda! welfare officer shall, in preparing the report consuit- Page 4 of 8 (a) all the parties to the proceedings separately; and (b) the child separately and if necessary, with the parents or other relevant persons. (3) .../ (4) the court shall consider the social enquiry report before making a decision on the custody or access. (5) ... From the excerpt, I agree with the counsel for the appellant that the enquiry report made by the social welfare officer must be considered by the Juvenile court as it is under sub regulation (4). The same Regulation make it an option for the court to order the enquiry report as in sub­ regulation (1) the word used is 'may'. The Magistrate who made an order via his ruling on 17th October, 2022 at page 4 noted the requirement of this regulation on enquiry report and opined that so far as parties were opted for mediation and were mediated by social welfare officer. For that responsibility done by the social welfare officer he decided to use his discretion wisely for not to direct the mediator to prepare a social enquiry report. This court join hands with the reasons adduced by the Magistrate. Direction to prepare report is option but when the report is submitted then the court is bound to consider it. I appreciate the

decision in Anyingisye Mlawa vs. Tukulamba Kibweja (supra) as cited by Mr. Mligo but circumstance of this appeal is Page 5 of 8 different from one discussed in cited case. From this analysis I find the first ground of appeal has no merit. On the second ground, counsel complained that the best interest of the child was not considered bearing in mind the age of the child and sex. The law provides that; 39. -(1) 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. (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. Let's see what is provided under section 26 of Cap 13; 2^.-(1) Subject to the provisions of the Law of Marriage Act, where parents of a child are separated or divorced, a child shall have a right to - Page 6 of 8 (a) maintenance and education of the quality he enjoyed immediately before his parents were

separated or divorced; (b) live with the parent who, in the opinion of the court, is capable of raising and maintaining the child In the best Interest of the child; and (c).............. (2) There shall be a rebuttable presumption that it is in the best interest of a child below the age of seven years to be with his mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of the child by changes of custody. The law requires the child to be provided by maintenance and education. Further the child of below seven years, under the law of Marriage a child below the age of seven years to be under her mother. The child in this appeal was living in Mwanza where she has got a school which will provide quality education and make it possible for her to visit clinic as per annex GWN/01 of the application. The health condition and attendance of clinic was confirmed by the appellant herein in her submission during hearing at the Juvenile court. Just as held by the Magistrate that an abrupt change of the place she was living, studying and the necessity of attending regular clinic at Bugando Medical Center will be against paramount well fare of the child protected under section 39 (1) of Cap 13. The age of the child is not disputed but, I find the best interest is for the child to be of

good health. This ground too is found devoid of merit. Page 7 of 8 Generally, I find no violation of any law as analysed above. The best interest of the child including access to nearby and reliable medical service. The appeal is devoid of merit is hereby dismissed in its entirely. It is so ordered. Judgment delivered in chamber before Advocate Ostack Mligo for Appellant and in the absence of the respondent. M. L. KOMBA Judge 17 August, 2023 Page 8 of 8