JUDGMENT CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 17136 OF 2024 (Appeal from the decision of Juvenile Court of Dar es salaam, One Stop Judicial Centre at Temeke in Civil Application No. 4920 of 2024) LUTUFYA ALLY NASSORO................................................................ APPELLANT VERSUS TAHIR TALIB SIEF..................................................................... RESPONDENT JUDGMENT 11th September & 15th October, 2024 BARTHY, J.: The appellant Lutufya Ally Nassoro aggrieved by the decision of the Juvenile Court of Dar es Salaam. The appellant advances two grounds of appeal as follows: 1. That the Honourable trial magistrate erred in law and fact by failing to consider, evaluate, and address the prayer in the application seeking communication access between the appellant and the children. i 2. That the Honourable trial magistrate erred in law and fact by failing to consider that both parents have a duty to contribute to the upbringing and welfare of the children. The appellant prayed that this court quash and set aside the judgment and decision of the Juvenile Court and grant the appellant the right to communicate with her children and contribute to their welfare. The appeal was heard through written submissions, with the appellant’s submission prepared by her learned advocate, Ms. Jane Goodluck Mseja, and the respondent represented by Ms. Esther Nyalada. In her submissions, Ms. Mseja argued that the trial court failed to consider the appellant's prayers to access her children in four ways: by communication while she is outside the country; contributing to their welfare; allowing the children to visit the appellant's parents and grandparents to maintain family bonds. She noted that the appellant is employed in Canada, and given her 30 days of annual leave, it is unreasonable for her to be denied communication with her children during that time. Ms. Mseja further argued that the respondent, who has custody of the children, had denied the appellant and her parent's access to the children, 2 causing psychological distress to both the appellant and the children. Citing Mnyonge Idrissa vs. Kirumba Hussein, PC Matrimonial Appeal No. 4 of 2020, Ms. Mseja emphasized that the best interests of the children should consider their emotional development, which requires regular contact with both parents and extended family. In addition, Ms. Mseja referred to Section 38 of the Law of the Child Act, Cap 13 R.E. 2022 (the Law of the Child) and Rule 76(1) and (2) of the Law of the Child Rules, which provide for the rights of non-custodial parents to access their children. She insisted that the grandparents' relationship with the children was crucial, given that they had lived with the children for two years and their continued access was vital for the children's emotional stability. Ms. Nyalada, representing the respondent, contended that the appellant sought access to the children after deserting them in 2022. She submitted that the appellant left the youngest child, an infant of three years, without any communication and failed to contribute to the children's welfare. Ms. Nyalada emphasized that the trial court had duly considered the appellant's prayers and that the welfare and rights of the children are the 3 primary considerations in such matters, as provided under Section 26 of the Law of the Child Act. She argued that the appellant had abandoned her responsibilities, leaving the respondent to care for the children alone. The trial court, therefore, granted the appellant the right to communicate with the children and contribute to their welfare, with the condition that any access to the children while in Canada would require a formal application. Ms. Nyalada further argued that the respondent only requested supervised access, fearing that the appellant might take the children to Canada without the respondent's consent. She concluded that the trial court properly evaluated the evidence and made a fair decision, and she urged this court to dismiss the appeal. Having carefully considered the submissions of both parties, the grounds of appeal, and the trial court's record, I will now determine the merit of this appeal. In determining the first ground of appeal, I must address the issue of whether the trial magistrate erred in law and fact by failing to consider, evaluate, and address the appellant's prayer for communication access with the children. 4 The appellant's counsel submitted that the appellant sought access to her children in various forms, including communication while abroad, and through her parents, grandparents, and other relatives. She emphasized the importance of maintaining communication with her children, particularly given her employment abroad, and cited relevant legal provisions to support her argument. In opposing the appeal, the respondent's counsel argued that the trial court had properly analyzed the evidence before it and granted the appellant the right to access the children. However, she contended that the appellant had abandoned the children for an entire two-year period, which raised doubts about her prayer for access. Upon reviewing the trial court's judgment, it appears that while the trial magistrate did grant the appellant the access rights, however the specific prayer, such as access through grandparents and phone calls, were not fully explored. It is important to note that, in matters involving access to children, the court must always consider the best interests of the child, as outlined in Rule 77(1) of the Law of the Child Rules. 5 The concept of "best interest" is not strictly defined by statute, but it can be interpreted based on the unique circumstances of each case. The Court of Appeal in Nacky Esther Nyanqe vs Mihayo Marijani Wilmore (Civil Appeal 169 of 2019) highlighted key factors in determining a child's best interest, including the child's physical, emotional, and educational needs, as well as the parents' willingness to facilitate the child's relationship with the other parent. In this case, the appellant does not dispute the children remaining in the respondent's custody, but she seeks the right to access them in various forms like, visit them when possible, and allow them to maintain relationships with her relatives, including grandparents. Ms. Nyalada, insisted that the trial court had granted the access, but also raised concerns about the appellant's past abandonment of the children. However, based on the trial court records, it is clear that the appellant had initially left her children with her parents, then later the respondent took them away and denied her access. The best interests of the children must always be prioritized, particularly with regard to their emotional development and the need for continued communication with both parents, especially since the appellant works abroad. I am persuaded by the findings of this court in the case of Glory Thobias Salema vs Allan Philemon Mbaga (Civil Appeal 46 of 2019), High Court at Arusha [2020] TZHC 3794 (13 November 2020), where my brother, Judge Mzuna, among other considerations, granted access to the mother. It was determined that it was in the best interest of the child to develop a close relationship with her, despite allegations that the mother had abandoned the child at the respondent's gate when the child was still an infant. While the appellant's absence could be a concern, there is no evidence that her access would harm the children. Regular communication is essential to their emotional well-being, and in safeguarding this, the court may impose certain conditions on visitation to ensure the children's welfare is protected, such as supervised visitation or scheduled contact. The trial court granted the appellant the right to access the children under the following orders: 1. The application is granted to the extent outlined below. 2. Custody of the children shall remain with the respondent, with access rights granted to the appellant as detailed in items (3) and (4) below. 3. The appellant is entitled to access the children on the 1st and 3rd weekends of each month, from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. 4. During school holidays, the parties shall equally divide the time spent with the children: the appellant will have the children during the first half of the holidays, and the respondent during the second ha/f. 5. The access granted under items (3) and (4) will only apply when the appellant is in Tanzania. 6. Any removal of the children from Tanzania to Canada will require leave of the court, obtained through a formal application. However, considering the appellant's employment abroad and her non­ residence in Tanzania, I find merit in her argument that the trial court should have given more weight to her specific prayers for communication, including regular phone calls and access through relatives and or grandparents. It is essential to foster and maintain the emotional bond between the children and the appellant. The lack of regular in-person interaction should not hinder the children's right to a meaningful relationship with their mother, as such 8 connections are critical to their emotional and psychological well-being. Effective communication, whether through virtual or in-person means, plays a vital role in ensuring that the children feel supported and connected to both parents, despite the geographical distance. In light of the above considerations, the trial court's decision regarding the appellant's right to access the children is hereby modified as follows 1. The appellant is granted the right to communicate with the children via phone or video call, at reasonable day times during weekends, while abroad. 2. The appellant's parents, grandparents, and other relatives are allowed visitation with the children, in coordination with the respondent, on the fourth weekend of each month and for half of the school holidays; such visits shall be supervised by a social welfare officer. 3. All other orders from the trial court remain in effect. In light of the above, this court finds partial merit in this ground to the extent of modification made with regard to the right of access by the appellant. 9 I now turn to the second ground of appeal, where the trial magistrate is faulted for failing to consider that both parents have a duty to contribute to the upbringing and welfare of the children. The appellant's second ground relates specifically to the obligation of both parents to contribute to their children's welfare. The appellant's counsel, however, did not submit arguments regarding this ground. On the other hand, Ms. Nyalada, representing the respondent, acknowledged that both parents bear the responsibility for their children's upbringing but contended that the appellant had abandoned her duties. Despite this, the law clearly mandates it is the duty of the father to provide for his children, as provided under section 8(1) and 41 of the Law of the Child Act any various international instrument on the child's right. The appellant, in her original application, sought to provide social services to the children, including purchasing clothes and gifts. The trial court, however, did not make a clear determination on this matter. Given the importance of this issue, and considering this court's role as the first appellate court, I am stepping into the shoes of the trial court to make a determination on the appellant's prayer. Since the respondent did 10 not contest this prayer, there is no valid reason to deny the appellant the right to contribute to the welfare of her children, as it is consistent with fundamental principles of parental responsibility. In light of the foregoing, I find the appellant's second ground of appeal to have merit. In conclusion, this appeal is allowed to the extent of the modifications to the right of access mentioned above. Additionally, the appellant is permitted to provide for the children on their material and their social needs. It is so ordered. Temeke this 15th of October, 2024. G. N. BARTHY JUDGE 11