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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA CIVIL APPEAL NO. 10690 OF 2024 (Originating from the decision of the District Court of Tabora Miscellaneous Civil Application No. 000003227 Of2024) MUNNA HASSAN NKUNGU........................................... APPELLANT VERSUS VERONICA ELOPE SOBANUKA................................... RESPONDENT JUDGMENT Date of Last Order: 28/11/2024 Date of Delivery: 12/12/2024 MANGO, J. The Respondent herein successfully filed an application before the District Court of Tabora under Rule 63(1) of the Law of Child (Juvenile Court Procedure) seeking for an order of custody of her child. The trial court order that: 1. The child shall be in the applicant's custody until they attain the age of 18 they will choose to live with her father or mother and the applicant has to make sure that the child is taking good care for her wellbeing but the respondent is allowed to access her in weekend days, every last Friday of (he month and return her on Sunday but such access should not interfere with the academic arrangement. i arrangement. 2. The respondent has to pay cash amount of Tshs 50,000/- month/y, in respect of food expenses for the three children, but the rate will increase as the demand of expenses increases the amount shall he paid and collected by the applicant at the District Social Welfare Office and will pay school fees for the child this will depend on the school the child will attend 3. The applicant is also responsible for providing children maintenance for other basic needs. 4. Children should be cared in love by both parents regardless of their emotional or martial conflicts. 5. The applicant and the respondent should communicate effectively and collaborate to ensure the best provision of the social services and protection to their children for their social well­ being as per section 8(1),8(2),8(3) and 26(1) of the Law of the Child Act No 21 of 2019. 6. The respondent is warned that the maintenance for the children is not optional; it is (he duty of the parents or guardians for the sustainability of the child welfares as stipulated and protected by the law. A brief background giving rise to the current appeal provides that, the parties have been cohabiting in different times and managed to get two children; the first on is 27 years old and the other one subject of this case is 6 years old, in 2018 they separated. The Respondent left with the girl child and started living into their family house at Bachu Street while the first born lives in Dar Es Salaam. It is alleged that the Appellant was providing maintenance 2 of the child but later he stopped. The source of the conflict began when the Appellant took the child for the purposes of buying her shoes, the Appellant never returned the child back and from there he denied the Respondent access to meet the child. The Applicant alleged that he refused to return the child because the Respondent failed to bring her back to school from February to June. After considering parties arguments, the trial court ruled in favour of the Respondent. The Appellant was dissatisfied with the findings of the District Court hence appealed to this Court armed with the following grounds: 1. That, the Trial Court erred in Law and in Fact by not Considering the Best interest of the Child as the Child is in the Custody of the Appellant Lawfully without any forceful means. 2. That, the Trial Court erred in Law and in Fact to Grant Custody to the Respondent on the reason that the Child Misses the Respondent. 3. That, the Trial Court erred in Law and in Fact to Place the Children under Custody of her mother (The Respondent) while there was cogent evidence to discredit her. 4. That, the Trial Court erred in Law and in Fact not to Consider that till today the Child is under my custody and care and i have been maintaining her because I have reliable income to sustain her and there is no where I have restricted my Child to visit her mother (the Respondent). 3 When the appeal was called on for hearing, the parties agreed the appeal be disposed by way of written submission, the Appellant appeared in person while the Respondent was represented by Flavia Francis, learned advocate. On the first ground of appeal, the Appellant argued that the trial court erred in law and in fact by not considering the Best interest of the child as the child is in the hand of the appellant lawfully without any forceful means and if the child was taken by forcefully means from the Respondent, without her consent then the Respondent could have applied to the juvenile court under Rule 66(1) of the juvenile court Rules for an emergency order of return of the child to her custody, but the Respondent did not do so, rather she only applied for a custody. It was his view that the Respondent handled the child willfully and the court should consider that the child will not be best served if she continues to be in the custody of the Respondent. On the second ground of appeal the Appellant submitted that, the law of the child require the infant to give his/her wishes before being placed in the custody of any parent the court should consider the welfare of the child by considering factors making undesirable that the child be entrusted to either parent rather than granting the custody on the reason that the child misses the Respondent which, in his view is a bad precedent and was not an opinion or wishes of the child. On the third ground of appeal we are of the Opinion view that the trial court erred in law and in fact to place the children under custody of her mother (the Respondent) while there was cogent evidence to discredit her that the child did not go to school from February until June when the appellant took her and in July it when the appellant sent the child to school 4 On the fourth and fifth grounds of appeal the Appellant stated that he is a man of means as he earns income and more stable to provide a child with basic necessities such as food, clothing, shelter medical services and education comparing to the Respondent and that there is no any proof showing that the Respondent would restrict the child to visit her mother. He prayed for his appeal be allowed. In reply, the Respondent made a general reply submitting that considering the best interest of a child as provided under section 4(2) and other provisions of the law of the Child Act, children of tender age are kept under the custody of their mothers unless there is sufficient evidence to discredit the mother. The advocate for the Respondent insisted further that the child is a girl by gender who needs more time and to be close to her mother than her father and there is no evidence adduced to discredit the Respondent herein above to avoid her having the custody of the child. He referred to the case of VICTOR C. KANYORO VS NEEMA KALIBOBO IN CIVIL APPEAL NO 13 OF 2021 HC AT BUKOBA wherein this Court stated that: "there are two reasons for this child to be with her mother; first, she is not old enough to being in the hands of the appellant. Second, the gid of this age, her well being and future may be determined by the person nurturing her. In my view, her mother might be the right person to take care of her rather than the appellant (father)". She therefore stated that there no evidence to show that the Respondent had any terrible lifestyle which prohibits her to live with the child, thus the trial court did consider the evidence adduced by the parties, consider inquiry 5 report done by social welfare officer and consider the best interest of the child to rule in favour of the Respondent. She went on to submit that it is not true that the Respondent failed to bring the child to school since record clearly show that the child fell sick and she was permitted by her school to be at home until she recovers but even if the child failed to be in school for the mentioned period by the Appellant, the Appellant had ought to follow the procedure rather than to forcibly take the child from the Respondent without even given a chance for the Respondent to have any access with the child. He prayed for the appeal be dismissed for want of merit. Having gone through submission from both parties, I will determine whether this appeal has merit. Before I embark on discussing this appeal, I wish to reproduce recommendations from social inquiry report produced at the trial in relation to this matter, after home visit and several interviews with parties it was recommended that: 1. The contested child should immediately be handled over to the applicant to be under custody her custody for the following reasons. a) For the child to continue to be under the care and custody of the respondent (now appellant) the right of access of the applicant (now respondent) is not guaranteed but if she is placed the care and custody of the applicant the right of access of the respondent is guaranteed. b) For the child to continue to be under the care and custody of the respondent (now appellant) the right of access of the child to her 6 mother is not guaranteed but if she is placed under the care and custody of the applicant(now respondent) the rights of access of the child towards her both parents. 2. There should be the well-arranged plan to enable the respondent (appellant) to have access to the child as per section 6 (1) 9 (1), 26(1) (c) of the Law of the Child Act 3. The Respondent (appellant) should never forcefully remove the child under care and custody of the Applicant rather he shall have the right to visit and stay with the child whenever he desires unless such arrangement interferes with his school or training program as per section 26(1) of the Law of child Act. 4. The applicant and the respondent should communicate effectively and collaborate to ensure that provision of the social services and protection to their children for their social well-being as per section 8(1) 8(2) 8(3) and 26(1) of the Law of the Child Act No 21 of 2019. 5. The child should be cared in love by both parents regardless their emotional or marital conflicts. Record show that, the Appellant took the child without agreement with the Respondent. Later, it was agreed that the child stay with the Appellant and during weekends and holidays a child be allowed to stay with the Respondent, unfortunately this was not honored and the Respondent never accessed the child, as a result the Respondent initiated proceedings seeking for custody of the said child. Section 37 (4) of the LCA requires the courts when granting custody to primarily consider the best interests of the child. In applications for custody, the best interest of the child is determined in 7 consideration of such factors as; the age and sex of the child, the independent views of the child, the desirability to keep siblings together, continuity in the care and control of the child, the child's physical, emotional and educational needs, the willingness of each parent to support and facilitate the child's ongoing relationship with the other parent (see sections 26 and 39 (2) of the LCA and Rule 73 (a) to (i) of the Law of the Child (Juvenile Court Procedure) Rules, GN No. 182 of 2016 (hereafter referred to as the Juvenile Court Rules). Considering the arguments from both parties, looking into the wording of the recommendations from social welfare, I do not find any reason to fault with the findings of the District Court. Also taking into consideration the age and sex of the child, I find it for the interest of justice and best interest of a child to stay with her mother, meanwhile the Respondent is not living in a condition which would discredit her and subject the child into hardships. Additionally, parties are ail subjected by the law to look after the child. Having said so, I find this appeal meritless, consequently I dismiss it without costs. Dated at Tabora this 12th day of December 2024 Z. D. MANGO JUDGE 8