lauriano ponciano balilemwa vs happincess kagemulo balilemwa 2011 tzhc 2171 20 june 2011

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 35 OF 2011 IN THE MATTER OF THE LAW OF THE CHILD ACT, NO. 21 OF 2009 AND IN THE MATTER OF AN APPLICATION FOR AN ADOPTION ORDER BY LAURIANO PONCIANO BALILEMWA AND HAPPINCESS KAGEMULO BALILEMWA AND IN THE MATTER OF UPENDO, AN INFANT Date o f last order: 17/06/2011 Date o f Judgment: 20/06/2011 RULING F. Twaib, 3 : This ruling is in respect of an application for the adoption of Upendo, an infant, brought under the provisions of sections 54 and 55 (1) of the Law of the Child Act, No. 21 of 2009. According to the Petition and the joint Affidavit Verifying Petition, the Petitioners herein, Lauriano Ponciano Balilemwa and Happiness Kagemulo Balilemwa, are husband and wife respectively. They were united in holy matrimony at a ceremony held in Johannesburg, Gauteng, South Africa, on 21st March 2002. Unfortunately, their marriage has not been blessed with any issue. This is because, according the Court-appointed Guardian ad t'item; Alphonsa Andrew Shirima, the wife has been found with "uterine fibroid mymectomy", which necessitated an operation that removed her womb. According to the Petition and the Report of the Guardian ad litem, Upendo, the infant, is female and a Tanzanian by birth. She was born in Dar es Salaam on 1st September 2008, which would make her present age to 2 years and some 10 months. Upendo's biological father and mother are unknown, as the infant was abandoned at birth and sent to Mburahati Baby Home by the Police at Sinza, Dar es Salaam. No one has since claimed for the infant. The Commissioner for Social Welfare has consented to the adoption. His consent is annexed to the Petition. The Guardian ad /itenfs report states that the husband is the Business Development Manager at Legacy Travel Tours and his wife works as a Cashier at Steers. According to Ms. Shirima, the Petitioners have shown love and commitment to the infant Upendo since she was placed under their care in August 2010, as they provide her with all necessary requirements. The Petitioners have undertaken to provide for the infant all the statutory requirements and necessaries of life, including food, clothing, shelter, education, and medical attention. The Social Welfare Office has conducted a social investigation regarding the Petitioners and their family, and made a close follow up of the condition of the physical and psychological development of the infant. The family members and other referees have highly recommended and approved the intended adoption. The Guardian ad litem has also reported that she is satisfied that the Petitioners have the means and status that would enable them to suitably maintain and bring up the infant Upendo. The Guardian ad Iitem has therefore recommended that the adoption order prayed for be granted. I have carefully gone through the Petition, the Affidavits verifying the same, the Report of the Guardian ad litem and all documents filed herein. I have taken submissions from Mrs. Shiyo, learned Advocate for the Petitioners and the Guardian ad litem. I am satisfied that this application has been made in good faith. I have watched the Petitioners with the infant Upendo in Court. Upendo looked very happy, cheerful and playful in their company. It was clear to me that in the past ten months since they took custody of Upendo, they have established a strong bond with her, and have been treating her with love and affection. I am satisfied that the Petitioners are of the requisite statutory age, and qualify under the relevant provisions of the law. The consent of the Commissioner for Social Welfare appears to have been deservedly obtained. I am also satisfied that the Petitioners duly understand the nature and effects of an adoption order, and the legal responsibilities they shall assume once such an order is made in their favour. I find as a fact that the Petitioners are fit and proper persons to be granted an Order for the Adoption of the child Upendo. Under section 4 (2) of the Law of the Child Act, No. 21 of 2009, the applicable principle in matters touching upon a child is the "best interests of the child principle". I have no doubt that such an Order would be in Upendo's best interests. On the basis of the foregoing, I hereby grant this application. An order for the Adoption of the infant Upendo shall issue in favour of the Petitioners, LAURIANO PONCIANO BALILEMWA and HAPPINESS KAGEMULO BALILEMWA. I also grant the wishes of the adoptive parents that the infant Upendo be known, henceforth, by the name of ALICIA JEIDAN BALILEMWA. It is ordered accordingly. Dated and delivered at Dar es Salaam this 20th day of June 2011. F. Twaib Judge 20th June 2011