Judgement Civil Appeal No

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CIVIL APPEAL NO. 16 OF 2023 (Originating from Juvenile Civil Application No.05 of 2023 in the Juvenile Court of Kilimanjaro at Moshi) ELISANTE ANDREW MJEMA……............................................ APPELLANT

VERSUS DEVOTHA PRAYGOD MBWAMBO.………………………… RESPONDENT

JUDGEMENT Date of Last Order : 21.08.2024 Date of Judgement:17.09.2024 MONGELLA, J. The parties herein are a married couple though living separately. The respondent preferred Juvenile Application No. 05 of 2023 in the Juvenile Court of Moshi at Moshi seeking for the Court to order the appellant to contribute in maintenance of their two children. She requested that the appellant be ordered to pay TZS. 150,000/= monthly as contribution for maintenance of the children; TZS. 100,000/= monthly for house rent and to pay school fees for both children. After hearing the evidence of both parties, the court ordered the appellant to pay TZS. 250,000/= as subsistence allowance. He was further required to issue a health insurance to both children and renew the same, to pay their school fees and buy them clothes as Page 1 of 12 needed. Aggrieved by said decision, the appellant has preferred this appeal on the following grounds: 1. That, the trial magistrate erred in law and facts in failing to properly evaluate and analyse the evidence as a result thereof ordered extreme higher subsistence allowance and rent monthly, which cannot be affordable by the appellant. (sic) 2. That, the trial court erred both in law and in facts by not ordering custody of children and provision of maintenance of the children.

3. That, the trial magistrate erred in law and in fact by granting higher subsistence allowance and rent to the respondent without considering the evidence on record that the appellant is paying T.shs. 1,575,000/= as school fees to the respondent's children and other children depending on him depending on riding bodaboda only. Both parties were unrepresented. Therefore, by consensus and for interest of justice, the appeal was resolved by written submissions. Submitting in chief, on the 1st ground, the appellant alleged that the provision of maintenance of children is a creature of law and not wishes of parties to the union. In that respect, he faulted the trial court for ordering a high amount of subsistence allowance and rent, which he could not afford to meet. He further challenged the trial court for awarding the amount arbitrarily without regard to his Page 2 of 12 means. He claimed to have testified before the trial court as to his work as “bodaboda” driver and proposed on the amount he could afford to pay as maintenance, but the same was not considered by the trial court. In support of his position, he referred the Court to the case of A M. Kimweri vs. Yusufu Athuman [1970] HCD 119 whereby the Court ruled that the omission to ascertain a party’s means prior to awarding maintenance is fatal. Arguing further, he contended that the trial court itself noted that there was no

any evidence on the accuracy of earnings of the parties as the social welfare report was not helpful to the court. However, he said, surprisingly the trial court proceeded to award a high figure in maintenance that he could not afford. He admitted that before, he was capable of paying TZS 300,000/- monthly as maintenance, however his economic status changed whereby currently he has six children and he is a mere bodaboda driver. Addressing the 3rd ground, the appellant alleged that the trial court did not pay attention to the fact that he was already paying school fees to the tune of TZS. 1,575,000/= while he was a mere bodaboda driver. He in fact did not deny his responsibility in maintaining his children, but that he can do that if this Court grants a reasonable figure that he can afford to pay. He contended that in determining such figure this Court should be guided by his means or ability factors that the trial court failed to consider. The respondent, on her part, supported the trial court’s decision. She held the view that the trial court’s orders for maintenance were Page 3 of 12 right and in accordance with the law. She averred that the trial court took into consideration the fact that it was the appellant’s duty as the father of the children to take care of the children. She referred the case of Denis Elias Nduhiye vs. Lemina Wilbard, Juvenile Civil Appeal Case No. 1 of

2019 (HC at Kigoma), in which the economic status of the parties was considered by the court after hearing the testimonies of each party on their income and expenditures. She added that upon analysing the Social Welfare Inquiry Report, the Court found the same lacking as it was formulated from mere interrogations of parties rendering it less credible and not in the best interest of the children. As to their case, she contended that the trial court made its decision by relying on the appellant’s statement to which he admitted paying TZS. 1,575,000/- as school fees for one child. She argued further that the trial court also considered her testimony on the appellant being a prosperous businessman owning multiple shops and engaging in bulk potato sales. That, the appellant also possessed a motor vehicle, motorbike and several plots or houses. The respondent did not reply to the 2nd ground in consideration of the fact that the appellant never addressed the same. Countering the 3rd ground, the respondent alleged that the trial Magistrate seriously considered the fact that the appellant was paying school fees amounting to TZS. 1,575,000/=. She argued that the trial court noted that since he was able to pay the said amount, he could not fail to pay TZS. 250,000/= per month as subsistence Page 4 of 12 allowance and rent. Further, she asked that this Court to note that the mentioned TZS.

1,575,000/= was the remaining debt for school fees meaning that there were more fees before. That, the appellant was able to pay more than TZS. 2,000,000/= as school fees for the children, thus he could afford the subsistence allowance and monthly rent ordered by the trial court. In her view, the trial court’s orders were correct. Rejoining, the appellant maintained that the subsistence allowance he was ordered to pay was quite high, such that he could not afford the same by his means. He reiterated his claim that he has six other children to take care of so, if he pays the said amount, he would end up causing suffering to the other children. He maintained that the trial court ought to have observed his means to pay the said allowance as instructed in Denis Elias Nduhiye (supra). He further maintained that the trial court did not consider that he was also paying TZS. 1,575,000/= as school fees. He as well reiterated his stance that he was ready to maintain the children provided that the Court grants a reasonable figure that he can afford. I have considered the grounds of appeal, the submissions of both parties and gone through the trial court record. What I find not contested in this matter is the fact that the appellant and respondent are separated and have two issues. The record shows that one of the issues was born in 2013 and the other in 2020, thus they are currently 11

and 4 years, respectively. The appellant also does not seem to contest the order requiring him to pay school fees Page 5 of 12 and provide health insurance to his children with the respondent. What he appears to contest in this appeal is the order issued by the trial court requiring him to pay TZS. 250,000/= as subsistence allowance and rent for his children. Undoubtedly, the law provides that it is the duty of the parents to maintain their children. Such duty is well laid down under Section 129 of the Law of Marriage Act [Cap 29 RE 2019] in which the law recognizes the paramount duty of the father of the children to provide for them and that of the mother where the father is unavailable or unable. This matter having involved children renders the Law of the Child Act [Cap 13 RE 2019], which is way detailed on what amounts to best interest of the child, of paramount importance in resolving this matter. Under Section 41 of the Law of the Child Act, the duty to maintain a child is well articulated. The provision states: “41. A parent in respect of whom an order of parentage has been made, shall have a duty to contribute towards the welfare and maintenance of the child to supply the necessities for survival and development of the child.” The factors to be considered in issuing maintenance orders are well provided under Section 44 of the Law of the Child Act. The same provides: “44.

A court shall consider the following matters when making a maintenance order- Page 6 of 12 (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child; (b) any impairment of the earning capacity of the person with a duty to maintain the child; (c) the financial responsibility of the person with respect to the maintenance of other children; (d) the cost of living in the area where the child is resident; and (e) the rights of the child under this Act.” In considering the wealth and income of the parents, Rule 84(2) of Law of the Child (Juvenile Court Procedure) Rules, 2016 GN No. 182 of 2016 has listed factors for the Court to consider. These are: “(2) The court shall, in considering the wealth or income of a parent or a person legally liable to maintain the child, take into account— (a) wages, salaries, commission, bonuses and allowances; (b) service provided; (c) business activities; (d) pension or severance benefits; (e) dividends and interests; (f) returns from real or personal property such as rents, sale of produce, farm products, livestock, poultry, dairy product and other similar items; and (g) needs of other dependants” To further assist Juvenile Courts in making an informed decision, Section 45 (1) of the Law of the Child Act allows courts to order a Page 7 of 12 Social Welfare Officer to prepare a social inquiry report.

When such report is prepared, the court is bound to consider the same in making its decision as provided under Section 45(2) of the Law of the Child Act. I find it pertinent to hereunder reproduce the two provisions for ease of reference: “45.-(1) A court may order a social welfare officer to prepare a social inquiry report before consideration of an application to make an order for maintenance, custody or access. (2) The court shall, in making such order, consider the social inquiry report prepared by the social welfare officer.” In the case at hand, the trial court ordered the Social Welfare Officer to prepare a social inquiry report. Upon viewing the same, I find it showing that the respondent was a casual labourer working as a local food vendor “mama nitilie” and sometimes a star times decoder sales person whereby she earned TZS. 3,000/= daily. The appellant was recorded as a “boda-boda” driver earning around TZS. 10,000/= daily. He had 6 children in total. The report eventually concluded by stating that the parties had the duty to maintain their children. From the report, it is evident that there was no actual or certain information on the economic status of the parties, I find so on the ground that the Social Welfare Officer merely interviewed the parties to ascertain their economic capacities and relied on the said information to prepare her report. For ease of

reference, I Page 8 of 12 hereunder reproduce an excerpt of her report specifically on the source of information whereby she stated: “In the preparation of this report, I was able to interview the applicant at her household compound and the respondent in my office separately. The interview was conducted on Friday of 25/08/2023 and on Monday of 28/08/2023.” The rest of her report was merely on what the parties had informed her during her interview with them. Even as to their financial capacity, the report noted as follows: As to the respondent’s capacity, it noted: “According to her the more she sells the more she earns. Also, she said that her minimal earnings per day is three thousand (3,000/=) which is not enough to fulfil his family basic needs.” As to the appellant’s capacity, the report noted: “He is working as a motorcycle driver (“bodaboda”) and his packing station is at Mbuyuni area. He owns his own motorcycle with plate number “MC 424 AMT”. His minimum earning per day is 10,000/=. He said that the earning used to maintain his all six children... So according to him he is capable to pay 2000/= per day for food to both children, to provide medical services when they become sick, to buy clothes for them and cover issues related to education services.” The purposes of an inquiry report are well provided under Rule 85 (1) (a) and (b) of GN No.182 of 2016, which states: Page

9 of 12 “85. (1) The court may, before granting an order for maintenance in accordance with section 45 of the Act, request a social welfare officer to prepare a social enquiry report for the purposes of— (a) assessing the ability of parents to provide for the maintenance and care of the child; and (b) ascertaining the accuracy of any statements relating to income and outgoings and liabilities.” From the foregoing, it is evident that the trial court’s purpose to order the inquiry report was defeated. The Social Welfare Officer did not comprehensively exercise her duty to inquire as to the financial capacity of the parties. Her report was based on mere statements of the parties who were amid a maintenance battle with each claiming to lack financial capacity or to have low financial capacity hence totally or somehow unable to support their two children. A fair and detailed report would have been acquired by not only interviewing the parties, but also investigating on their capacity by other means. For reasons of inaccuracy as to earnings of the parties due to the lacking report, a fact neither party has herein contested, the trial court proceeded to rely solely on the evidence of parties. The trial Magistrate made his orders based on the appellant’s initial payments going way back to an arrangement between them facilitated by the Social Welfare Officer. This was an apparent

error on his part. In the absence of a detailed inquiry report, I find that the Page 10 of 12 financial status of the parties was not disclosed and the trial court could not in any way make an informed decision. The trial court did not only ignore the requirements set under Section 44 of the Law of the Child Act as well as Rules 84 and 85 of GN No. 182 of 2016, it also ignored the fact that even though the appellant admitted to have initially made some high payments of allowance as claimed, he had pleaded to currently lacking the means to support his children the same way. It is my view that in the absence of a proper inquiry report, the trial court ought to have ordered another report to be made within set standards. In failure to make such amends, the maintenance order was rendered inappropriate and a nullity because: one, the Inquiry Report could not be considered as mandated under Section 45(2) of the Law of the Child Act and thus the provision was violated. Two, the order did not comply with mandatory provisions of the law in relation to factors to be taken into account prior to issuing a maintenance order. Therefore, in the foregoing observations, I quash the judgement of the trial court and set aside all resultant orders. I order the matter to be remitted to the trial court for a social inquiry report to be issued within confines of the laws and thereafter, a proper judgement be entered. Considering the relationship of the parties, I make no orders as to costs of this appeal. Page 11 of 12 Dated and delivered at Moshi on this 17th day of September, 2024. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 12 of 12