20190213 TZHC Dar es Salaam

IN THE HIGH COUR TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 156 OF 2017 ISSABELA MPONGALIANI. . . . . . . . . . . . . . . . . . .... .APPELLANT VERSUS NELSON JACOB MUSHI . . . . . . . . . . . . . . . . ....... RESPONDENT (Appeal from the decision of the Juvenile Court of Dar es Salaam in Misc. Civil Application No. 20 of 2017) JUD·GMENT _MGETTA, J: Aggrieved by the ruling delivered on 12/7/2017 by Resident Magistrate in the Juvenile Court of Dar es Salaam, (henceforth the trial court), through a legal_ service of Tanzania Women Lawyers Association (TAWLA), the appellant one Issabela · Mpongaliani, on 26/7/2017 lodged a Memorandum of appeal containing three grounds of appeal as hereunder: 1. That the trial Court Magistrate erred in law and fact by granting -custody of the child Emmanuel Nelson 'Mushi to the Respondent 1 mother while the mother (the appellant) of the child is capable of maintaining the child. 2. That, the trial Court Magistrate erred in law and fact by not giving the Appellant right to be heard. 3. That, the trial Court Magistrate ·erred in law and fact by not considering the best interest of the child by ordering the child to stay. with his grandmother and not his mother (the appellant). A background giving a raised to this appeal is that formerly the appellant and respondent were living as wife. and husband respectively. They then separated from each other. In Misc. Civil Application No. 20 of 2017, the respondent one Nelson Jacob Mushi applied to the trial Court · which subsequently granted him an order for sole custody of his child called Emmanuel Nelson Mushi, born on 15/12/2006 at Muhimbili Hospital, Dar es Salaam. Previously the child was under the custody and care of the appellant after she had taken him from the respondent's parents. The respondent accused the appellant for abandoning the child when it was at the age of three (3) months old. He then took custody of him and raised him with his parents more than nine (9) years. - 2 - ',J It is evident record that the respondent left the child under the custody and care of his parents. On 3/12/2016, the appellant went and took the child from the respondent's parents as it was mistreated and left without care. In her oral submission, she reiterated same above and complained further that her child was left under the custody of respondent's parents. There it was not taken or going to school, but just stayed with its grandmother keeping goats. She submitted further that her child was under torture condition. She therefore urged me to reverse the trial court decision and then she be allowed to stay with her child. She said she is working as a nurse assistant and also running a pharmacy business at Buza Yambo, Dar es Salaam. She is therefore able to take care of the child. Having heard the submission by the appellant in absence of the respondent who is duly served, I found on the record that the appellant at the trial court through a legal service of TAWLA filed a notice of preliminary objection on points of law that the application lodged by the respondent at the trial court is incurably defective for wrong or non-citation of the law as t . he failed to state under which law his application was made; that the affidavit supporting the application is incurably defective for not being verified and not being dated; and, that the affidavit is incurably defective 3 <'- as it offends the provisions of Order XIX, rule 3 (1) of the Civil Procedure Code Act, CAP. 33. I further glanced at the proceedings and noticed that the preliminary objections raised by the appe_llant at the trial court were not determined. In law, where there is any preliminary objection in any matter before a court, such objection must be heard and determined first before going to a next step. Sometimes, a preliminary objection may dispose of the matter completely. The failure to hear and determine the raised preliminary objection amounted to procedural irregularity which vitiated the -proceedings and the decision_ of t_!,e tric)I _c.ourt .. Moreover, nowhere in the proceedings of the trial court it is indicated that the application was heard in the presence of the appellant. Hence principle of-nature justice was also violated. For those reasons given herein, I do Invoke the revisionary power of this court as provided under section 44 (1) of the Magistrate Courts Act of 1984, CAP 11 and proceed to quash and set aside the proceedings and ruling of the trial court. I declare them a nullity. I had a view that I would had return the original file for retrial, but on reflection -and considering the circumstances of this matter and the interest and welfare of the child, I am therefore constrained to order that Status quo be 4 •. maintained, that is to say that things to remain as they were before the filing of the application at the trial court. I further order that the child Emmanuel Nelson Mushi, who is about thirteen years, be placed under the custody and care of his. mother, the appellant Issabela Mpongaliani, who is duty bound to provide him with all the necessities such as taking care of him, taking him to school, Clothing, feeding him, et cetera. In the circumstances of this case, each party has to bear its own costs. Order accordingly. · ~~_z: IJ ,, JOHN S. MGETTA - -- .,.. JUDGE 13/2/2019 Court: This judgment is delivered today this 13th day of February, 2017 in the presence of the appellant in person, but in absence of the respondent for reason(s) known to himself. JOHN~. MGJrrA ]J,, JUDGE 13/2/2019 / 5