in the matter of application for the management and administration of the nmb bank account no 70508300239 owned by hamis rashidi mchinya and in the matter of applicati

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM DISTRICT REGISTRY

AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 392 OF 2024

IN THE MATTER OF APPLICATION FOR THE MANAGEMENT AND ADMINISTRATION OF THE NMB BANK ACCOUNT NO. 70508300239

OWNED BY HAMIS RASHIDI MCHINYA

AND

IN THE MATTER OF APPLICATION BY MALISA JUMA ABDALLAH

RULING Date oflast order: 15 January2024 Date of Ruling: 7th February2024 MTEMBWA, J.: Under section 19 (1), (2) and (3) of the Mental Health Act No. 21 of 2008 together with section 95 of the Civil Procedure Code, Cap 33, RE 2019, the Applicant is seeking for an order declaring one MR. HAMIS RASHIDI MCHINYA as a person of unsound mind. Basing on his unsoundness, that this court be pleased to order that his Bank Account No. 70508300239, operated by NMB Bank Plc, Tegeta Branch, be managed by the Applicant. The same was brought under a certificate of extreme urgency and was 1 supported by the Affidavit of the Applicant and one MR. ABDUL HAMIS RASHID MCHINYA. When this matter was called up for hearing, Mr. Godwin Anthony Fissoo appeared for the Applicant. Hearing proceeded orally. Mr. Fissoo submitted that the Application herein was brought under the certificate of urgency and under the provisions of section 19(1), (2) and (3) of the Mental Health if read together with Section 95 of Civil Procedure Code. He implored this Court to declare one MR. HAMIS RASHIDI NCHINYA as a person of unsound mind. He added further that, in view of his unsoundness, the Court be pleased to appoint the Applicant, one MS. MALISIA JUMA ABDALLAH to manage the Bank Account No. 70508300239 operated by NMB Bank Plc, Tegeta Branch, in the name of NCHINYA H. Mr. Fissoo continued to note that Section 19(1), (2)

and (3) of the Mental Health Act (Supra) gives this Court powers to appoint a fit person who can be a parent, son, friend, relative or any interested person to manage the Bank account on behalf of the alleged unsound person. In this respect, the learned counsel 2 submitted that the applicant herein is legal wife of the said MR. HAMIS RASHIDI MCHINYA having contracted a marriage on 29th October 1970. To date, they have been blessed with five issues, however, very unfortunate, one died. Mr. Fissoo submitted in addition that MR. HAMIS RASHIDI MCHINYA is a retired military man who worked for more than twenty-nine years. He added that, when he was mentally sound, he used to run and manage his Bank Account by transacting a number of personal transactions including his pension funds. As of late, he can no longer manage and or operate his Bank account. On the reason for his unsoundness, Mr. Fissoo submitted that MR. HAMIS RASHIDI MCHINYA suffered from stroke attack on 10th April 2023 and he was hospitalized at Lugalo Hospital in Dar es Salaam. The CT scan was conducted and revealed that middle cerebral artery disrupted. To buttress a copy of the ATM Card and the Medical Report dated 29th December 2023 were attached to the Affidavit. As a result, the family conducted a meeting and resolved that the Applicant be appointed to manage or administer the said Bank Account. 3 To support his

contention, Mr. Fissoo cited the case of Lilian Bemad Masaki, Mise Civil Application No. 7/2022, High Court at Moshi and added further that, in any case, the Court normally takes into consideration the circumstances and available medical reports. He lastly beseeched this Court to grant the Application. Indeed, the Mental Health Act (supra) provides for the care, protection and management of persons with mental disorders and provides further for the voluntary or involuntary admission in mental health care facility and other related matters. Section 19 (1), (2) and (3) of the Act dictates as follows; (1) Application for an order for the management and administration of the estate of a person with mental disorder may be made by a parent, a child who has attained the age of eighteen, friend relative or any interested person under whose care or charge such person is. (2) Every application shall be accompanied by an affidavit setting out the grounds upon which it is made and shall give full particulars as to the property and kindred of the person to whom it relates. (3) Where the application relates to a person lawfully admitted as a person with mental disorder, the application shall be accompanied by a certified true copy of the appropriate admission and particulars in respect of that person. 4 In brief, whoever wants to manage and administer the estate of the person I with mental

disorder, shall apply to the Court formally by a Chamber Application supported by an Affidavit setting out the grounds upon which it is made and shall give full particulars as to the property and kindred of the person to whom it relates. The Application may be made by a parent, child who has attained the age of eighteen, friend, relative or any interested person under whose care or charge such person is. Where the application relates to a person lawfully admitted as a person with mental disorder, the application shall be accompanied by a certified true copy of the appropriate admission and particulars in respect of that person. Under section 22 of the Act, the Court, upon receipt of the Application, shall proceed to determine the Application and may issue orders appropriate. Section 23 (1) and (2) of the Act provides for proof of mental capacity and condition. In lucid terms, the section provides as hereunder; (1) The court shall receive evidence on affidavit or otherwise and consider any report submitted to it under the provisions of this Act as to the mental capacity and condition of the person to whom the application relates as may be produced before 5 it. (2) The court may take judicial notice of any reception order or medical certificate duly made or given in accordance with the provisions of this Act. The above quoted provisions of the law require the court to receive

evidence on affidavit or otherwise and consider any report submitted to it under the provisions of the Act as to the mental capacity and condition of the person to whom the application relates as may be produced before it. The Court also is obliged to take judicial notice of any reception order or medical certificate duly submitted. Section 14 (1) and (2) of the Act requires the issuance of the medical certificate in terms of second scheduled (Form No. 2). It provides that every medical certificate on the mental status of the person shall be signed by mental health practitioner. The medical certificate shall then state the facts upon which the person certifying it has formed opinion that the person whom it relates is mentally disordered, is capable of taking care of himself and may contain such distinguishing facts as observed by him and as communicated by other person. 6 In the instant Application as said before, the Applicant is seeking for an order declaring one MR. HAMIS RASHIDI MCHINYA as a person of unsound mind. Basing on his unsoundness, that this court orders that his Bank Account No. 70508300239, operated by NMB Bank Plc, Tegeta Branch be managed by her, the Applicant. In her Affidavit, the Applicant deponed that MR. HAMIS RASHIDI MCHINYA (her husband) since the disruption of middle cerebral artery due to stroke attack has been not corresponding and he has not been acting like a normal human being. To support her averments, she attached to the Affidavit a medical report (Annexure M-3 collectively) and an affidavit of her elder son one MR. ABDUL HAMIS RASHID MCHINYA (Annexure M-4). For clarity, let me reproduce the said medical report.

TAARIFA YA MATIBABU Hamis Rashid Mchinya Mgonjwa huyo ni atikuwa anasumbuiiwa na shinikizo la damu (high blood pressure) kwa muda mrefu na amekuwa akitumia dawa zake bila kuwa kwenye utaratibu mzuri ie (poor adherence of medication) kwa hali hio ikampelekea kupata kiharusi (stroke) upande wa kuiia na kumpelekea kutofanya kazi vizur kwa upande wa mkono na mguu wa kuHa. Kiharusi hicho kilitokea tarehe 10/04/2023 na kumpelekea 7 kulazwa kwenye HospitaH kuu ya Jeshi Lugalo kwa matibabu zaidi, Amefanyiwa kipimo cha kichwa (brain CT scan) na kuonesha kuwa mshipa mkubwa (middle cerebral artery) ulipasuka. Kwasasa yupo kwenye matibabu ya viungo baada ya kuruhusiwa kutoka HospitaH ya Jeshi Lugalo. Haii yake kwasasa bado haijatengamaa vizuri kwa hio anahitaji usaidizi wa karibu kwa shughuli zake nyingi za karibu. Tunaomba asaidiwe kwa ukaribu zaidi. With respect that is not the medical certificate or Report envisaged under section 14 (1) of the Mental Health Act (supra). The report does not state whether stroke attack resulted into brain or mental disorder. Its not every stoke attack results into mental disorder and if so, the report must have specifically and in lucid terms stated so. Even in her affidavit, the Applicant has not even deponed anything regarding mental status of MR. HAMIS RASHIDI MCHINYA. The facts that he has not been corresponding and or that he is not acting like a

normal human being, by and large have nothing to do with mental status. A certification of the medical practitioner certifying that MR. HAMIS RASHIDI MCHINYA is mentally disordered, in this case, is mandatory. As such, I am unbale to endorse, in the circumstance of this 8 case, that stroke attack necessarily, even if no certification from the medical doctor, results into mental disorder. The Applicant, if she so wishes, should follow the procedure under the law by first obtaining a medical certificate or report from a medical practitioner certifying that MR. HAMIS RASHIDI MCHINYA is a person of unsound mind or he is mentally disordered. It is therefore professionally impracticable and contrary to the law for this Court to declare MR. HAMIS RASHIDI MCHINYA as a person of unsound mind without materials to rely on. Those powers, by law, were entrusted to the medical doctor or practitioner and not the Court. What the Court is obliged to do under the law is to take judicial note of the medical report so certified. Equally, this Court cannot order that the Bank Account No. 70508300239 operated by NMB Bank Plc, Tegeta Branch in the name of NCHINYA H be managed by the Applicant without evidence on his unsoundness. In the premises, this Application, as I see it, is premature. In the result, this Application is refused and is hereby struck out. The Applicant, if she so wishes, may initiate procedures for obtaining a valid and current medical certificate or report from a 9 medical officer on the soundness of MR. HAMIS RASHIDI MCHINYA. Considering the circumstances, there will be no order as to costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 7th February 2024. 10