oc tanzlii 2 KINYAPI

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB-REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE CIVIL APPEAL NO. 29821 OF 2024 (Originating from the decision of the Juvenile Court of Dar es Sa/aam at Temeke in Misc. Civil Application No. 20979 of2024) M.K--------------------------------------------------------- APPELANT

VERSUS G.H----------------------------------------------------- RESPONDENT

JUDGMENT Last Order: 17.03.2025 Judgment Date: 26.03.2025 M. MNYUKWA, J. It is an order for maintenance of children issued by the Juvenile Court of Dar es Salaam at Temeke (the trial court) which provoked the appellant to institute the present appeal before this Court. What has been gathered from the record reveals that the parties to this case were blessed with two issues, aged 7 and 6 years at the time when the application was filed before the trial court. It was the respondent (the then applicant) who initiated a complaint before the trial court by filing an application for maintenance in accordance with Rule 83(1) of the Law of the Child Act (Juvenile Court Procedure) Rules, 2016 (the Rules), using the format set out in Form No. 7 as prescribed in the Rules. v rh The basis of the respondent's complaint was that the appellant had failed to maintain and support his children since 2021. She therefore moved the trial court to issue an order against the appellant to provide monthly maintenance of Tsh 150,000/- in respect of their two children. Upon the application being filed, it was served on the appellant (the then respondent). When both parties entered appearance before the trial court, the hearing was conducted by way of oral submissions. As the law provides, the one who alleges must prove. (See section 110(1) and (2) of the Law of Evidence Act, Cap. 6 R.E. 2019 and the

case of Ikizu Secondary School v. Sarawe Village Council, Civil Appeal No. 163 of 2016). Therefore, it was the duty for respondent to prove her claim before the trial court. Besides, the law is also settled that in civil cases, the burden of proof is on the preponderance of probabilities. (See the case of The Registered Trustees of Joy in the Harvest v. Hamza K. Sungura, Civil Appeal No. 149 of 2017). Equally, respondent was duty bound to prove her case on the required standard. As the burden of proof lay on her, the respondent took the floor to prove her claim in order to entitle the trial court to rule in her favour by issuing an order against the appellant to provide monthly maintenance of Tsh 150,000/=. In addition to the monthly maintenance, the respondent also moved the trial court to issue an order requiring the appellant to pay for health insurance, school fees, and uniform. It is on record that the respondent's submissions were mainly based on the assertion that the appellant is a man of means, as he is a retired employee from one of the public offices, owns a credit office, and has business premises that are rented for income. She thus convinced the trial court to believe that the appellant earns income from the rent collected from these business premises and the credit office. She also stated that, being a retired public employee, the appellant is financially capable

of maintaining his children as prayed. Additionally, the respondent also claimed that her income was insufficient to meet the children's maintenance needs, as she was merely engaged in petty business. She thus prayed for the application to be granted. In response, the appellant disputed the respondent's contention that he is capable of meeting the children's maintenance as prayed. He claimed that he used to support the respondent in maintaining the children. He strongly disputed the respondent's assertions regarding his income, citing lack of proof, and maintained that he neither owns business premises nor a credit office. He mainly submitted that he is a retired employee. The appellant further added that the respondent is a • M businesswoman and therefore capable of contributing to the children's maintenance. After hearing both parties, the trial court did not grant the maintenance order as prayed. Instead, it ordered the appellant to pay monthly maintenance of Tsh 70,000/= for the two children. It also proceeded to issue the following additional orders against the appellant: to enrol the children into a health insurance scheme and to cover their education expenses. The trial court further ordered both parties to share the costs of clothing, leisure, and entertainment. Additionally, it directed the respondent to cover the costs of accommodation and shelter. As indicated, the

above order did not amuse the appellant, who preferred the present appeal, fronted with three grounds of appeal, to wit: i. That the Honourable trial Magistrate erred in law and fact by ordering the appellant to contribute monthly maintenance to the tune of Tsh 70,000/= per month in favour of the children, knowing that the appellant has no job or source of income to meet that amount. ii. That the Honourable trial Magistrate erred in law and fact by ordering the appellant to provide Tsh 70,000/= per month while it is on record that there was no social welfare inquiry report assessing the ability of the appellant to provide such maintenance and care, contrary to the requirements under ■ w Rule 85 of the Law of the Child (Juvenile Court Procedure) Rules, 2016. Hi. That the trial Magistrate erred in law and fact by placing a disproportionate burden of maintenance on the appellant while the respondent is working and has the capacity to contribute to the children's maintenance. He thus prayed for the appeal to be allowed, the order of the trial court to be quashed and set aside. He also prayed for the costs of the suit and any other relief that this Honourable Court may deem fit and just to grant. At the hearing, both parties were unrepresented. Pursuant to the respondent's prayer, which was not contested by the appellant, the hearing of the appeal was conducted by way of written

submissions. A scheduling order was issued for the parties to comply. The appellant was ordered to file submissions in chief on or before 24/02/2025, the respondent was ordered to file a reply to the submissions in chief on or before 06/03/2025, and rejoinder submissions, if any, by the appellant on or before 11/03/2025. Despite the aforesaid scheduling order, which was issued in the presence of both parties, the respondent did not file her reply to the submissions in chief as ordered. While the record shows that she was supposed to file her reply on 06/03/2025, she opted to file it on 10/03/2025 without leave of this Court. 5 w Since she filed out of time and there was no extension of time granted to her to file the reply submissions, the same will be disregarded since failure to file submissions as ordered by the Court is tantamount to failure to prosecute or defend one's case. I will therefore proceed to summarize the appellant's submissions and make a decision accordingly. Arguing in support of the 1st ground of appeal, it was the appellant's contention that the trial magistrate erred in ordering him to pay monthly maintenance of Tsh 70,000/= while he had no means to afford that amount, considering he is a retired employee with no other source of income. The appellant claimed that the trial court erred in placing the burden of maintenance solely on him. He cited the case of

Angingise Mlawa v. Tukilamba Kibweja, Civil Appeal No. 27 of 2020, and section 44 of the Law of the Child Act, Cap. 13 R.E. 2019, to support his assertion that, in assessing the amount to be paid for maintenance, the court is required to consider the income of both parents. He thus maintained that the trial court erred to order maintenance without considering the income of both parties. In respect to the 2nd ground of appeal, it was the appellant's submission that the trial court failed to consider the provisions of Rule 85(l)(a) and (b) of the Rules, which would have enabled the trial magistrate to properly assess his income in order to determine the • Ml appropriate amount to be paid as maintenance. He argued that it is through a social enquiry report, prepared by a social welfare officer, that the trial court can objectively assess the financial capacity of the parties. He was of the view that the trial court's failure to order the preparation of such a report was fatal and led to an unfair decision. He thus prayed for this ground of appeal to be allowed. Lastly, the appellant argued the 3rd ground of appeal, claiming that the trial court erred in placing the entire burden of maintenance on him while leaving the respondent with no obligation, despite her having the means to contribute. After considering the available record and the appellant's submissions, the main issue for

determination is whether the appeal has merit. In answering the above issue, I will begin my deliberation with the 2nd ground of appeal, for reasons that will be revealed shortly. Before I embark on determining the present appeal on its merits, it is important to note that, this being the first appellate court, I am enjoined to re-evaluate the evidence on record and arrive at my own analysis and conclusion based on the available facts. (See the case of Future Century Ltd v. TANESCO, Civil Appeal No. 05 of 2009, and Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019). Coming now to the appeal at hand, it is the complaint of the appellant in the 2nd ground that the trial court erred in ordering monthly maintenance of Tsh 70,000 without directing the social welfare officer to conduct a social inquiry report. The appellant claimed that the trial court was required to consider the provisions of Rule 85(l)(a) and (b) of the Rules. I have keenly gone through the trial court record, and it is true that the trial court did not order the social welfare officer to prepare a social inquiry report. The basis of the trial court's decision was mainly the submissions of the parties. I say so because the court ordered the appellant to pay monthly maintenance of Tsh 70,000/- instead of Tsh 150,000/- as prayed. In its reasoning, the trial court stated that it ordered that amount since the respondent failed to prove her case as required under section 110(1) and (2) of the Evidence Act, Cap. 6 R.E.

2019. In other words, this suggests that the respondent failed to prove her case on the required standard in civil cases namely, on the balance of probabilities. That is to say, the respondent failed to prove the alleged income of the appellant. The only fact in respect of the appellant's income which was undisputed by both parties was the fact that the appellant is retired. In determining this ground of appeal, I am constrained to reproduce part of the holding of the trial court on why it arrived at the decision to order the appellant to pay Tsh 70,000/- as monthly maintenance, where it was stated that: "Moreover the applicant argued that, the respondent owns frames for rent, auto side shows and a credit lending company facts which could not be proved as per requirement of section 110 (1) of the Evidence Act, Cap 6 R.E2022. For instance, the company ought to be registered and its owners known unfortunately the applicant could not even mention the name of the said company" From the above, it is without doubt that the trial court satisfied itself that the respondent failed to prove the appellant's income so as to move it to issue orders as prayed in her application. Despite that finding, the trial court still proceeded to order the appellant to contribute Tsh 70,000/- as monthly maintenance. It was the complaint of the appellant that he is unable to pay that amount, as he does

not have sufficient income to comply with the trial court's order. According to him, the trial court was required to obtain a social inquiry report from the social welfare officer before issuing the maintenance order. Now, the question that needs to be answered in this ground is whether it was necessary for the trial court to order a social inquiry report to be conducted by the social welfare officer before issuing an order for maintenance. Without much ado, my answer to this question is in the affirmative. Considering the circumstances prevailing in this case, it was vital for the trial court to obtain the social inquiry report before determining who would contribute what amount towards the maintenance. I am aware that at the time when this case was filed at the trial court, it was not mandatory for the trial court to order and consider the social inquiry report when making a maintenance order. However, the trial court was in a position to exercise its discretionary power to order that a social inquiry be conducted before issuing the maintenance order. Before the amendment, section 45 of the Act provided that: Section 45(1) -A court may order a social welfare officer to prepare a social inquiry report before consideration of an application to make an order for maintenance, custody or access. As stated, it was optional for the trial court to order the social inquiry report,

depending on the circumstances of each and every case. However, it is my humble view that, owing to the fact that the appellant is a retired person and his other means of income were not proved at the trial court, this was an appropriate case for the trial court to exercise its discretion and order the social welfare officer to conduct a social inquiry report. As correctly submitted by the appellant, I am also convinced that the provisions of Rule 85 of the Rules are relevant in the circumstances of this case, as they would have assisted the trial court in assessing the income of both parties before making an order for maintenance. Rule 85 of the Rules provides that: 85(1) The court may, before granting an order for maintenance in accordance with section 45 of the Act, request a social welfare officer to prepare a social enquiry report for the purpose of (a) assessing the ability of parents to provide for the maintenance and care of the child; and (b) ascertaining the accuracy of any statements relating to income and outgoings and liabilities Now, my mind is settled that, though at that time ordering the social welfare officer to prepare a social inquiry report was optional, the circumstances in this case compelled the trial court to order the same. It is the social inquiry report that can provide reliable information about the income of both parties. The information contained

in the social inquiry report is crucial in assisting the determination of each party's contribution towards child maintenance, since the social welfare officer may inquire into the income of both parties and ascertain whether either parent has other responsibilities. Therefore, since maintenance is a shared responsibility of both parents, the trial court ought to have ordered that a social inquiry report be conducted. Thus, this ground has merit, and I allow it. In the event, I allow the appeal and proceed to quash and set aside the Ruling and Orders of the trial court on maintenance. I remit the file to the trial court for it to order that a social inquiry report be conducted and to compose the Ruling after considering the contents of that report. Since this ground disposes of the appeal, I will not determine the other grounds of appeal. It is so ordered. Right of appeal to the Court of Appeal explained to the parties. Court: Judgment delivered on this 26th day of March 2025 in the presence of the appellant in person and in the absence of the respondent. M.MNY^WA

JUDGE 26/03/2025