20160928 TZHC Arusha

tN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA i [IN THE DISTRICT REG~STRY] I ' ,'AT ARUSHA I I MISC. CIVIL APPLICATIO NO.136 OF 2016

IN THE MATTER OF JUDICATURE AND APPLICATIONS OF LAWS ACT,; CAP.358 R.2002 IN THE MATTER OF THE LAW OF THf: CHILD ACT, 2009

AND J IN THE MATTER OF FENORIN MESHACK EVUKORI .... THE CHILD . I AND IN THE MATTER OF AN APPLICATION FO'R LEGAL CUSTORY AND I LEGAL GUARDIANSHiP ORDERS BY LORI ANN TANIS -

I

APPLICANT 1 I : RULING 1 Date of last Order: 14/9/2016 , Date of Ruling: 28/9/2016 BEFORE: S.C. MOSHI, JUDGE. I i The application is made under Section 2~ 1) of the Judicature and 1 Application of Laws Act, [Cap .358, R.E. 2002], Article 4(1) of the African ' Charter on the Rights and W$Ifare of the Child, 1990, Article 3(1) of the United Nations Conventions o~ the Rights of the Child, 1989, Section 4(2), 7(1), 8(1), 9(1) (2), 16(9) (b)) 37(1) and 45(1) of the Law of the Child Act, I ; No.21 of 2009 and Section 95 of the Civil Procedure Code [Cap.33 R.E. 2002] and any other enabling ~rovision of Lawt II 1 • The applicant prays for the following orders:- 1. That, this Honourable Court be pleased to ~ppoint Lori Ann Tanis to be legal guardian of the child, Fenorin Meshack Mevukori with full parental rights and responsibilities.

2. That, this Honourable Court be pleased to grant legal custody of the child, Denorin Meshack Mevukori to the applicant, Lori Ann Tanis.

3. That, this Honourable Court be pleased to ·issue orders to the effect that, the applicant Lori Ann Tanis be permitted to live and travel with the child, Fenorin Meshack Mevukori in: the United Republic of Tanzania, in the United States of America and or elsewhere in the world.

4. That, this Honourble Court be pleased to order the applicant, Lori Ann Tanis to return the child, Denorin Meshack Mevukori to the United Republic of Tanzania and produce her before the Deputy Registrar of the High. Court of Tanzania at Arusha in after every five years until she attain the age of majority (18 years old) unless such orders of the court in the United States of America or the United Republic of Tanzania.

5. That, this Honourable Court be pleas~d to grant leave to the applicant to undergo adoption procedures in the United States of America, for the child, Fenorin Meshack Merukori.

6. That, this Honourable Court be pleased tp issue orders to the effect that, the applicant Lori Ann Tanis through families through adoption, a child placement agency of address 354 Norwood Ave SE, Grand Rapards, MI 49506, Michigan State, in t~e United States of America 2 I . be submitting progressive report on the state and welfare of the I child, Fenorin Meshack Mevukori, after every twelve months to the I Deputy Registrar of the High Court of Tanzania at Arusha, the . I Regional Social Welfare Offices, Arusha reg'ion in the United Republic ; nd of Tanzania and Tanzania Embassy locatJd at 1232, 22 ST NW, Washington state, DC 20037 in the United States of America. I I .

7. Any other such orders that this Honourable Court may deem fit and just to grant.

8. Costs of this application. The applicant was represented by Mr. Robert Mgoha, advocate. At the I ' hearing of the application the applicant and tne biological father of the child were present. The court had an opportunity to examine th~m, while Mr. Mgoha was ordered to bring written subrt1ission. On oral 1examination by court the ' applicant stated that she came to Tanzania lastlyear i.e. November, 2015. He stayed in Tanzania for 3 weeks, that's wherl she became aware of the i child who was by then at small steps children ~ome. He later on came to Tanzania on 11th September, 2016 and expectep to travel back to USA on 18th September. Mr. Meshack Torongei Mollel who alleges to be the father of the child ' couldn't tell the age of the child. He even coul(tl not explain with certainty where the mother of the child was. He first said that she was dead, later on changed and said that the' child's mother \jVaS mentally ill. He further 3 I stated that he stayed with the child up to July, 2016 when she was taken I to school. I I have also considered the submission which was filed by Mr. Mgoha, I advocate. Mr. Mgoha proposed two issues, the first issue deing whether the court is I vested with powers to entertain legal custody I and guardianship orders application. Mr. Mgoha stated that the Court has powers to do so apart from custody order under Section 37(1) of the Law of the Child

Act, 2009, which does not specifically provide for guardian~hip orders. He cited Art. I 108 (2) of the constitution of the United ReRublic of Tanzania, 1977, Section 2(1) of the Judicature and Application of Laws Act, [Cap.358 R.E. 2002] and Section 95 of Civil Procedure Code [Cap.33 R.E. 2002]. i He urgued that the application for legal guardiarnship is not clearly defined in the law of the Child Act, 2009 unlike adoption application which is clearly 1 I defined from Section 55 - 74 and the rules made thereat. The situation i with legal guardianship is distinguishable because there are no rules to I govern it. He further invited the Court to apply cpmmon Law and equity. In this respect he cited the Lord High Chancellor+ of Great Britain (1979 - I 1987) under the Halsbury's Law of England, 4th ~d at para 740 which states I that:- I " ........ where an application with respect to a child is made to I the court by any individual, the court may by order appoint that individual to be the child's guardiar, if the child has no parent I with parental responsibility for him ... there are no specific 4 statutory restrictions as to the eligibility of individuals to be appointed as guardians. However, the court must regard the child's Welfare as paramount consideration and it must not be an order unless it considers that doing so would be better for the child than making no order at

all". I have considered this urgument. It is apparent that Section 37 (1) of the Law of the Child Act does not provide for guardianship application. Section 37(1) of the Law of the Child provides for application for custody of the child by a parent, guardian or a relative. See, Misc. Civil Application No.09 of 2016 in the matter of Happy Edward Ngowi, an infant and in the matter for the application for Legal Guardianship Order by Charles Francis Manfold and another, (HC) Mwaimu, J. I am persuaded by this decision, as it was held, the law does not provide for procedures for guardianship by foreigners as it did for adoption. Mr. Mgoha invited me to apply the constitution, Art. 108(1), Judicature and Application of Laws Act Section 2(1) and Section 95 of the Civil Procedure Code, Act. It is my view that these provisions are of general applications. The issue of custody of the child is specifically provided by law, as indicated, custody can be granted to apparent, guardian or relative. The law of the child does not provide for guardianship application. Had the intended to do so, it would have specifically and expressly stated so. Likewise the court cannot be guarded by common law while there's specific law of the child dealing with custody. It's expressly stated that custody can be given to the persons who are indicated under Section 37(1) of the Law 5 I of the Child Act. For the

applicant to succeed mu st be a parent, guardian 1 or relative of the3 child. I nd On 2 issue whether the applicant is suitable Ito be granted with the application. Even if the court was properly move~, the facts regarding the biological parents of the child as stated by Mest,ack Tarongore Mollel in court are not consistent with what he stated iri the affidavit, as shown I above, he even couldn't tell the age of the childi, the whereabouts of the mother of the child and even the date which tHe child was taken to the i center differs from what he stated in the affidavit. I I Furthermore, the applicant has never lived with the child. They just visited ! Tanzania for few weeks, she is not a parent, a guardian or a relative. I All in all, I find that this court is not vested with jurisdiction to entertain the application under the provisions which the application has been preferred. I Hence the application is struck out for being incotnpetent.

I

JUDGE 28/9/2016 I I 6