Civil Appeal 20 of 2022 Judgment Mrisha J

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) ATSUMBAWANGA CIVIL APPEAL NO. 20 OF 2022 (Originated from Ruling and Decree ofJuvenile Court of Katav! at Mpanda in Civil Application No. 4 of2022) BETWEEN LUCAS BENARD MWACHALI................................ ........ APPELLANT AND f DELEFINA KIBOMBA....................... .RESPONDENT JUDGMENT 2$h May & 23d July, 2024 MRISHA, J. In this appeal the appellant is aggrieved with the decision of the Juvenile Court of Katavi at Mpanda (the trial court) in Civil Application No. 04 of 2022, delivered on 28th October, 2022 in favour of the respondent. The appellant filed with the trial court an application for custody of Allen Luca Mwachali, the child whose biological mother is the respondent. Briefly, the facts in relation to the dispute before the trial court were that Luca Benard Mwachali (the appellant) and Delfina Kibomba (the respondent) agreed to have secret love relationship which led the appellant to become pregnant. Thereafter, the two lovers agreed that their intimacy relationship i would last forever with a condition that it should be kept as a secret between the: two of them because by that time the respondent already had a legitimate wife and family. Later their child was born on 20th February, 2020. Unfortunately, the said agreement was not honored by the respondent because one day the appellant took the child to the appellant matrimonial home in the mid night where she started claiming over the child right that he should live with his father. After that happened, the respondent had nothing to do, but to break the secret by telling his wife about the child born out of wedlock. Thus, the appellant decided to file with the trial court an application for custody of a child under Rule 63 (1) of the Law of the Child, seeking for sole custody of that child on the grounds that one, he is a biological father of the child, two, the respondent is not a fit mother to bear and raise the child due to her alcoholic behavior and three, she has a behavior of throwing her children at different places which is hazardous to the child. The respondent resisted the application with all forces as she denied the appellants assertion and complained that she was never receiving maintenance from the appellant, except Tshs 150,000/= on the day of delivery, she asked help for intervention of the applicant's Human Resource officer as well as the 2 Social Welfare Officer and he was ordered to pay a maintenance of Tshs 5.0,000/= per month. That the appellant executed such order for sometimes and stopped. Thus, she went and asked for help from one office to another, but her efforts to have the situation better were in vain. In her submission before the trial court, the respondent denied that she is an alcoholic, and further added that she received abusive messages from the appellant via her phone. However, the appellant in one occasion lived with the child for three months, but he failed to take care of him, due to his irresponsibility. As earlier stated, the trial court adjudged the matter in favour of the respondent, hence the present appeal in which the appellant's arsenal is predicated on six grounds of appeal as follows: 1. That, the trial court erred in law by its failure to proceed with the application ex-parte against the Respondent even after the Respondent . \7<- failed to file her reply to the application. 2. That, the trial court erred in law and fact by taking into account the extraneous matters in composition of its ruling at page 6 second paragraph of the Ruling. 3 3. That, the trial court erred in law and fact by its failure to believe the appellant and his witness testimony which was cogent. 4. That, trial court erred in law by not considering the report of Social Welfare Officer and claiming to have expunged the report illegally. 5. That, the trial court erred in law and fact by deciding the application without framing the issue. ■> 6. That, the trial court erred in law and fact by awarding the- maintenance cost of Tshs 50,000/= and health insurance without considering the income of the Appellant. "d With those grounds of appeal, the appellant is imploring this court to allow the appeal with costs and order custody of the children to be placed to the appellant and any other relief(s) this court will deem fit to grant. When the present appeal was called on for hearing, both the appellant and respondent appeared in person, unrepresented and though being laymen, they at least tried their level best to submit for and against the appellants grounds of appeal. As the practice of this court demands, it was the appellant who began to make his submission in chief. 4 Submitting in support of his grounds of appeal, the appellant started to submit on ground number four of the appeal arguing that the trial court erred to reject the Social Welfare Report. He submitted that the said report was properly prepared by the Social Welfare officer as it contains significant information which could help the trial court to determine the matter differently. The appellant added that although the report was rejected, but no sufficient reasons were assigned by the trial court for rejecting it. _ On ground five, the appellant argued that the trial court heard and determined the matter without framing issues. That despite the fact that the case was on welfare of the child, yet the.trial court decided the matter without framing the issues for determination. He added that, the main issue was on the allegations that the respondent was throwing the child at different places and he drunkenness behaviour. In regards to ground six, the appellant submitted that the trial court did not consider the appellant's financial situation or income. He further contended that the trial court erred in law by ordering the appellant to pay for health insurance of the child the subject of this appeal without taking into account his financial status. He demonstrated financial capacity by telling the court that he is able to pay for that child's support between 15,000/= to 20,000/= per month because .5 he is a civil servant, he has a family of one wife, five children and his parents depend on him. He has no other means of income. Regarding the issue of health insurance, the appellant submitted by telling the court that his insurance package is full of dependents; hence, he will not be able to provide health insurance for that child. However, it was his submission that the money he has been providing for that child will still be used for his medical treatment. In the end, he implored this court to adopt his memorandum of appeal which contains six ground of appeal which is self-explanatory to form part of his su bmi ssion i n ch ief. On the adverse side, the respondent started by attacking the Social Welfare Report arguing that the said report was written by the officer without assessing the child's living environment and no inspection or interrogation was conducted or done by the social welfare officer. The officer was required to visit the respondent's home/place and conduct the inspection, then write the report, but that had never been done by the officer. Regarding allegations of throwing the child at different places, the respondent submitted that she has four children, three children of whom she got from 6 different fathers, but she has never thrown any of them. On the issue of drunkenness, she denied the assertion and argued that neither evidence nor witness was produced by the appellant to prove her drunkenness; still the trial court noticed the appellant is irresponsible to his child. She wound up by imploring me to consider the right and welfare of the child and dismiss the a p pea I with costs. : < In a brief rejoinder, the appellant reiterated what he submitted on his submission in chief and insisted that he is not able to pay Tshs 50,000/= as a child support and also, he added that the respondent threw his child to the corridor of his house. Lastly, she prayed to this court to provide the means of sending the child support and order custody of child be placed to her. Having provided the above summary of the submissions and evidence of the parties in extenso, I now turn to consider the merits or otherwise of the present appeal based on submissions, evidence on record and the relevant law. To start with I will deal with the issue of failure to file her reply/counter affidavit to the application. It is on record that on 29th May, 2022 when the case was went for hearing before the trial court, the respondent prayed to the said court to file her counter affidavit, the prayer was granted without objection from the 7 appellant. However, the respondent did not comply with the order and counter affidavit was not filed, then hearing of the application was conducted and the trial court decided the matter, as above stated. It is a trite law that failure of the respondent to file a counter affidavit does not render the application uncontested one as what is being uncontested is the factual issues bearing in mind that affidavit is evidence. Therefore, the omission only denies the respondent with the right to respond on factual issues; she is however, entitled to contest the application on issues of law. (See: Sakina Issa v Rashid Juma, Wise. Civil .Application No. 55 of 2021 and Fatuma Ally Mohamed v Mohamed Salehe, Misc. Land Application No. 365 of 2019 HCT (unreported). ' fe _ -.I-.L-.' £&x " '• i-; -: ••• s.;•''js• V- In Fatuma Ally Mohamed v Mohamed Salehe, (supra), the court held that: "The position of the law on failure to file a counter affidavit is settled. The respondent is deemed to have not contested on the factuality of the affidavit. I agree with Mr. Njama that, omission to file a counter affidavit does not render the application uncontested as to deny the respondent a right to address the Court on merit or otherwise of the application. Neither does it release the applicant with a duty to argue his case." 8 From the above position, the respondents failure to file a counter affidavit does not render the application heard ex parte against the respondent; the respondent entitled to submit on matters of law and the applicant is duty bound to prove his case. Hence, based on the above reasons, I do not find any merit on the first ground of appeal. On issue of extraneous matter, the appellant referred to page 6 second paragraph of the ruling and argued that the paragraph in that ruling is containing extraneous facts which is not stated by any party to the case. I see a need of quoting the said paragraph for easy of reference, as hereunder: . .1 must confess that this application gave me a lesson of which would be of help to meand even to the society in general. After saying that, let me outline the area of determination..." From the above extract, the trial court indeed added some words, in my view, however, those words do not amount to extraneous matter. I say so on the following reasons; one, the extract indicates that having heard the evidence from both parties regarding the application before, the learned trial magistrate had observed that the said application gave a lesson to her and the society in general. In my view, she was on the right track because that is one of the 9 objectives of the judgment and ruling to the society; two, after her observation, the trial magistrate raised one issue for determination. Hence, it is my strong view that the referred paragraph does not amount to extraneous matter and does not vitiate the trial court proceedings. Therefore, the second ground of appeal has no merits. It is the position of the law that framing of issues: is the duty of the trial magistrate or judge and this is provided under Order XIV, Rule 1(5) of the Civil Procedure Code [Cap 33 R.E. 2022], The law makes it mandatory for the court to frame issues at the first instance. It is also clear that the decision of any court is based on issues framed. The court is not required to frame issues only where the defendant/respondent at the first hearing makes no defence. Failure to frame issues is a procedural irregularity which is fatal only when it occasions miscarriage of justice or affect the merits of the judgment. This position was amplified in the case of Norman v Overseas Motor Transport (Tanganyika) Ltd [1959] E.A. 131, where the East African Court of Appeal held that: "Failure to frame issues is not necessarily fata!" Back to present case, I thoroughly read the ruling composed by the trial magistrate and found that the trial court framed one issue for determination and io determined the matter based on the framed issue. This is shown at page, paragraph 2 of the ruling which I quote: "After saying that, let me outline the area of determination. That is, Whether custody of the child ALLEN LUCA MWANCHALI should be under the applicant or not?" Again, the trial court decided the matter based on the issue framed and this is shown at page 9 of the ruling, where the trial court stated that, and I quote: "I only came with one conclusion that, the best place for the child to be is under respondent custody, to mean-her mother. Applicant had failed to convince this court as to why the child should be placed under his custody." " ;' From the above excerpt, it is obvious that the trial court framed issue before determining the matter and the wellbeing of the child was determined and the court ordered the custody of the child to be under the respondent. However, among of the issues the trial court was discussing in its ruling are, the throwing of the child is one of the reasons to show the respondent is not fit to stay with the child; the issue is custody of the child. Based on the above reasons, I find that ground five of the appeal has no merit. li As for the Social Welfare Report, it is the position of the law that the court shall order for the social inquiry report to be carried out by the Social Welfare officer upon the applicant and respondent. In conducting inquiry, the social welfare officer may consult the child separately and if necessary to consult the child's relatives. The report will be presented to the court, whereas the report will be crucial in assisting the Court in determining and granting custody and access orders. ""'2’ In the present case, it is on record that the trial court ordered social inquiry to be Conducted and Social Welfare Officer to supply his report on 1st October, 2022. After being supplied with the said report, the,trial court expunged the report due to the reasons that, the said report is necked as it had some gapes. It then advised the child to be under custody of the applicant's mother (grandmother) without stating that she is willing to raise the said child. Also, the report does not reveal whether the parties were inquired and required to give their opinions as regards the custody of that child. Upon submission of the social welfare report, the court shall make such order; by considering social inquiry report prepared by the social welfare officer, this is stated under section 45 (2) of the Child Act [Cap 13 R.E. 2019]. Conversely, the court is not obliged to accept matters recorded in the social welfare report or 12 follow recommendations made in the reports, then it shall record the reasons for not complying with the recommendation. As mentioned earlier, the trial court expunged the social welfare report due to the reasons that the said report is necked as it had some gapes. In my view, had those pages been filled it would have helped the trial court to come up with a good position of where the child should be placed. Therefore, it was correct for the trial court to expunge the report and refrain from considering it due to insufficient recommendations. , 'v Despite the fact that the social welfare report was expunged, the trial court would still make its decision by looking on factors raised in an application for custody and access rights to a child based solely on the principle of the best interest of child as provided under section 39 of the Child Act [Cap 13 R.E. 2019]. (Also see: Celestine Kiiala and Halima Yusuph v Restituta Celestine Kilala [1980] TLR 72. The Court may also take into account other factors including: (a) the age and sex of a child, (b) the views of the child if the views have been independently given, 13 (c) that it is preferable for a child to be with his parents except if his rights are persistently being abused by his parents, (d) that it is desirable to keep family members together, (e) disturbing the life of child by changes of custody, (f) the need for continuity in the care and control of the child, and (g) any other factors that the Court may consider relevant. My perusal of the ruling has reveals that when the trial court was deciding the custody of the child considered the best interest of the child, the undesirability of disturbing the life of the child by changing his custody as well as the need of the child stay with his mother as provided under section 39 (1) and (2) and 26(2) of the Law of the Child Act. For easy of reference, I will quote a passage of the trial magistrate's ruling when making such decision, where she said: "The reasons of the child to be under respondent's custody are as follows, that,, first, the child is still so young to the extent that, he still needs the care arid protection of her mother. Second is that, the child was once at applicant mother custody, letter on returned to the respondent till present, under those circumstances, I think it's better to be left where he is and not to disturb his mind. Third is that, applicant had a family, but he doesn't want to stay with the child, rather to be put under his 14 mother's custody/1 wonder why as I thought he applied for child custody in order to be doser to the child and not to be sent to another living place. Lastly is that/ since respondent had other children/1 am sure she won't let the child in issue uncared/ and it's better for the child to live with his blood relative and not otherwise." Flowing from the above excerpt, this court is satisfied with the decision of the trial court based on section 39(1) and (2) and 26(2) of the Law of the Child Act, by considering the best interest of the child, the age of the child, and undesirability of disturbing the, life of the child by changing his custody as well as the need of the child to stay; with his mother. Bad enough, the appellant did not want to stay with the child, rather to put him under the custody of his mother who did not apply for the custody. Since the trial court considered all the above- mentioned factors in determining the custody of the child, even though the report of social inquiry was expunged, I am of the settled view the omission did not occasion any injustice on the part of the appellant. Hence, I hold that the fourth ground of appeal lacks merits. Next for consideration is ground six where it has been argued that the trial court erred in law by awarding the maintenance cost of Tshs. 50,000/- and health insurance without considering the income of the appellant. Likewise, I do not 15 find any merit in this ground of appeal. At the trial, the appellant testified that he agreed with his employer to pay Tshs. 50,0Q0/= per month as a maintenance cost for the child the subject of this matter. Again, at the social welfare office the appellant agreed during mediation that he will continue to pay Tshs. 50,000/= per month, is it is shown at page 7 of the trial court typed judgment. This evidence shows that the appellant was able to pay the said amount as a maintenance costs. Thus, in my view the appellants argument that he is a civil servant whose salary is not enough to make him pay the amount of maintenance and cover the health insurance charges as ordered by the trial court, is unmerited. The appellant was paying Tshs. 50,000/= as maintenance costs; this information is deducted from his own evidence which he adduced before the trial ■court. 1J. In absence of any other evidence to the contrary, I do not see how the trial court could have appreciated the appellant's claim that he had financial constraints. On the issue of health insurance, the said child has a right of having health insurance whether to be included in the appellant's insurance package or by being enrolled in any other type of health insurance i.e. Toto Health insurance. 16 Finally, I have to address the third ground of appeal which the appellant has adopted as his submission in chief, though he did not talk about it in the course of making his submission before the court. From that ground of appeal, it can be deduced that the appellant's complaint is that the trial court erred in law by its failure to believe the evidence adduced by him and his sole witness who was the Social Welfare Officer and testified as PW2. S However, after going through the typed judgment of the trial court, I have come to realize that the learned trial magistrate properly considered not only the appellant's evidence, but also, she considered that of his witness along with the one adduced by the respondent. This is shown from pages 8-9 of the trial court typed judgment, save for page 9 in which the trial magistrate used to assign the reasons for her decision that the child in issue should better be placed in custody of the respondent and not the appellant. Hence, I find and hold that the third ground of appeal raised by the appellant is also without merits. Hence, it crumbles as well. Jy All the above being said and considered, I see no reason to fault the trial magistrate's findings regarding the custody of the child in dispute. 17 In the premises, and for the above stated reasons, cited law and authorities, I do not see any reason to fault the findings of the learned trial magistrate. Hence, I hold that the grounds of appeal raised in this appeal are devoid of merits and therefore the appeal is hereby dismissed. I make no order for costs. It is so ordered. A.A. MRISHA JUDGE 23.07.2024 DATED at SUMBAWANGA this 23th day of July, 2024. A.A. MRISHA JUDGE 23.07.2024 18