NERIA MWANAJIMBA DRAFT JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CIVIL APPEAL No. 8236 of 2024 (Originating from the Juvenile Court of Dodoma in Miscellaneous Juvenile Application No 43 of 2023) BETWEEN NERIA NUHU MWANAJIMBA………………………APPELLANT VERSUS HAROLD HENRY MASINDE…………………………RESPONDENT JUDGMENT Date of Last Order: 20 /08/2024 Date of Judgment: 29/08/2024 LONGOPA, J.: This is an appeal against decision of the Juvenile Court of Dodoma in an application relating to access and custody of children of the marriage between the appellant and the respondent who are 12 years, 8 years and 4 years old respectively born of biological mother and father of the parties to this appeal. The facts are that at the Juvenile Court of Dodoma at Dodoma the appellant applied for a sole custody of the issues on grounds of irresponsibility and harshness of the respondent to the children, non- 1|Page payment of the school fees for the children who attend boarding school, respondent threatening violence at school for custody of children during holidays, drunkard behaviour of the respondent, the respondent living only with a houseboy thus risking the children welfare to stay at the respondent’s residence, the respondent has a habit of going out on drinking sprees with the boy child (Carlos) putting the child at risk as the respondent returns home drunk, the appellant is the only one who takes care of all the needs of the children. The Juvenile Court placed the custody of the issues to the appellant with non-custodial access by the respondent of the issues during public holidays, school holidays or on days that the children are not going for school. It also ordered the parties to share the costs of education needs of the issues to both appellant and respondent. On 26th October 2023, the appellant filed an appeal against the whole of a Ruling and orders of the Juvenile Court of Dodoma dated 5th October 2023 on the following grounds of appeal, namely: 1. That the trial Resident Magistrate erred in law and in facts in determining the application without according the parties the right to be heard. 2. That the trial Resident Magistrate erred in law and facts in deciding and issuing an order based on unpleaded facts. 2|Page 3. That, the trial Resident Magistrate erred in law and facts in determine the application based on personal emotions instead of analysing the evidence before the court and best interest of the child 4. That, the trial Resident Magistrate erred in law and facts by raising the issue of maintenance suo motto and determine the same without according the parties the right to be heard. 5. That, the trial Resident Magistrate erred in law and facts to give access to children to sleep to the Respondent in an environment which can impair the children. 6. That, the trial Resident Magistrate erred in law and facts in delivering a decision which is biased on the side of the Appellant. 7. That, the trial Resident Magistrate erred in law and facts in finding that there is no proof that the Respondent is drunkard while the same is not true. 8. That, the trial Resident Magistrate erred in law and in facts in deciding and issuing orders which are frivolous, ambiguous, unfounded and wanting. 9. That, the trial Resident Magistrate erred in law and facts in turning into an executing court after delivering decision 3|Page 10. That, the trial Resident Magistrate erred in law and facts in determine and issuing the decision which is contrary to the law. It was on strengths of all these reasons that the appellant prayed for this Honourable Court to allow this appeal with costs and set aside/ quash the decision and orders of trial Court. The respondent resisted all the grounds of the appeal contained in the Memorandum of Appeal and prayed for dismissal of the appeal with costs for being frivolous, ambiguous and unfounded. On 20th August 2024, the parties appeared before me for viva voce hearing. Ms. Catherine Wambura, learned advocate appeared representing the appellant while Mr. Ditrick Mwesigwa, learned advocate appeared for the respondent. Ms. Catherine Wambura, Advocate was the first to address this Court. It was appellant’s counsel submission that is an appeal against the decision of the Juvenile Court of Dodoma in Miscellaneous Application No. 43 of 2023. In course of arguing the grounds of appeal, the counsel for appellant abandoned all the ground save a single ground on the violation of the right to be heard. 4|Page This sole ground is based on the constitutional right to be heard, the parties in the instant appeal were not heard as there was no affording the opportunity to be heard. The matter was instituted before the Juvenile Court, the parties were not heard. In fact, what happened is that the respondent herein who was also the respondent before the Juvenile Court raised a preliminary objection against the application. According to the appellant, at page 4 of the proceedings of the Juvenile Court, it is revealed that the respondent prayed for disposal of the preliminary point of objections through written submission where a scheduling order was made. The parties complied to the scheduling order where on 05/10/2023 was fixed as the date for ruling on the preliminary objection as revealed in page 8 of the proceedings. Further, on page 5 of the ruling of the Juvenile Court, Honourable Magistrate did overrule the preliminary objections and it proceeded to determine the main application without affording the parties the right to be heard. The appellant argued that the action by the trial Court to proceed with determination of the application without hearing of the parties was violative of the fundamental constitutional right to be heard to the parties in the case. The principle in the case of Mbeya-Rukwa Autoparts and Transport Ltd versus Justina George Mwakyoma (2003) TLR 251 5|Page was cited to reiterate the position of the law where the Court of Appeal stated that natural justice is not merely a principle of the common law but also a fundamental constitutional right under Article 13(6) (a) of the Constitution of the United Republic of Tanzania on the right to be heard as among attributes of equality before the law. Accordingly, it was argued that the Juvenile Court for Dodoma erred in law to determine the main application without affording the parties the right to be heard thus violating the constitutional right of the parties to the case. As such, the appellant prayed that this court be pleased to uphold the appeal, dismiss and set aside all orders that arose from that decision with costs. On the other hand, Mr. Ditrick Mwesigwa, learned advocate supported the decision of the Juvenile Court. It was version of respondent’s arguments that respondent entirely concurs with the decision of the Juvenile Court as both parties were heard before a decision was made. On page 3 of the Judgment/Ruling of the Juvenile Court this aspect is very clear. The hearing in the Juvenile Court is informal and friendly as per Rule 8 of the Law of Child (Juvenile Court) Rules GN 182 of 2016. The Rule provides for the Juvenile Court to consider the Social Investigation Inquiry. The parties were parents of the issues of the marriage where the interests of the children were in question. The Court appointed a Social Welfare Officer under section 72 of the Law of the Child Act. Both parties 6|Page were availed with opportunity to be interviewed by the Social Welfare Officer. Respondent added that at page 6 of the Juvenile Court Proceedings, the parties were required to undergo the social investigation before the Social Welfare Officer prior to the ruling of the application by the Court regarding the preliminary objections. It was through the social welfare officer report as revealed on page 7 of the proceedings that the same was read before the parties in Court. As the Juvenile Court procedure is friendly and informal, it does not strictly adhere to technicalities thus the trial magistrate is vested with powers on the procedure to follow. Rule 16(1) of the Juvenile Court Rules in particular Rule 16(1) (i), (k) and (l) allow the Court to dismiss or give a decision after the preliminary objection decision. It is correct to state that parties were heard in the circumstances stated above. Thus, the respondent prayed for dismissal of the appeal for lack of merits. In rejoinder, the appellant reiterates that the correct position of the law is found/ stated in Rule 69 of the Juvenile Court Rules. It states that the procedure for determination of the access and custody of the child should be adhered to. This includes the Court informing parties on the 7|Page right to attempt mediation processes, possibilities of joining/ calling of the child in question to appear in hearing to state his/her views. The Rules are clear that in case of contention on the matter, the Court is entitled to direct the Social Welfare Officer to conduct a Social Inquiry and submit a report to Court. All these procedures are stated in Rules 69 to 73 of the Juvenile Court Rules which must be adhered to. The appellant insisted that parties were not heard as they were not afforded the right to be heard thus we pray that the appeal be allowed. Having heard both parties at lengthy, I have dispassionately considered the available records on the matter in order to determine validity or otherwise on the appeal. In so doing, I have had an opportunity to peruse the ruling of the Juvenile Court of Dodoma and the proceedings of the Court to ascertain that there is merit on the instant appeal. Commencing addressing the appeal, it is pertinent to state that right to be heard is part and parcel of the fundamental constitutional rights of equality before the law. The principle prohibits any party to be condemned unheard. For instance, in the case of Anthony M. Masanga vs Penina (mama Mgesi) and Another (Civil Appeal 118 of 2014) [2015] TZCA 556 (18 March 2015) (TANZLII), the Court of Appeal noted that: It appears therefore that the respondents were not afforded the right to be heard (audi alteram partem) on 8|Page that aspect. In fact, nowadays, courts demand not only that a person should be given a right to be heard, but that he be given an "adequate opportunity" to be heard so as to achieve the quest for a fair trial. See the case of The Judge i/c High Court Arusha & Another v. N.I.N. Munuo Ng'uni [2006] T.L.R. 44 What would amount to adequate opportunity to be heard in case relating to access and custody of the children which is a civil case? In my view, the right to heard that can be stated to have afforded adequate opportunity when parties are allowed to exchange pleadings, affording the parties opportunity to present their respective case in form of evidence whether orally or through affidavits or written submissions, presence in court personally or through recognized agent when the other party’s evidence is being adduced, right to cross examine the other party’s evidence, explaining the right to challenge the decision in case a party is not satisfied with the decision to mention but few. Presenting one’s case seems to be vital starting point. It cannot be said that parties were heard where neither party was not afforded an opportunity to state its case before the decision is made. Proceedings of the Juvenile Court of Dodoma reveals what happened on 13/7/2023. It is important to reproduce the whole of the proceedings for two important dates, namely 13th July 2023 and 17th August 2023 to 9|Page shed some lights on what happened before the trial Court on this matter. It is indicated that: Date: 13/7/2023 at 09:57 hrs Coram: Hon. N.J. Tungaraja-SRM Applicant – Absent Respondent- Present C/C: Ester Social Welfare: Anneth Kimboca Machibya for the applicant Who is not in court, Respondent is present in person -Matter is for mention Respondent: I have filed my Reply Machibya: Your honour I have been served but I see he has filed an objection, we pray for hearing on the objection. Court: Prayer granted Respondent: I pray the same to be heard by way of written submission. Machibya: No objection Court: Prayers granted ORDER: Submission in Chief 27/7/2023 -Reply 10/8/2023 10 | P a g e -Rejoinder if any and mention 17/8/2023 -Parties to appear Sgd: N.J. Tungaraja, SRM 13/7/2023 Date: 17/8/2023 at 10:48 Hrs Coram: Hon. N.J. Tungaraja-SRM Applicant – Absent Respondent- Absent C/C: R. Awiti Social Welfare: Asnath Remtullah Wambura for applicant who is not in court -Matter is for mention -We pray for date of Ruling Court: Parties have to undergo Social Investigation by Social Welfare officer before the Ruling of the Court Order: Mention on 24/8/2023 at 10:00 hrs -Parties to appear Sgd: N.J. Tungaraja, SRM 17/8/2023. The stages that were pertinent on those two days are: First, it was agreed that the preliminary objection would be heard by way of written 11 | P a g e submission. Second, having complied with scheduling order on submission, the parties prayed for ruling date of the preliminary objection. Third, the order for Social investigation was ordered before ruling on preliminary objection. Further, it is lucid that on 24th August 2023 when the matter was called for mention/ Ruling of the Court on Preliminary Objection the trial Court observed that the Social Welfare Officer should prepare a Social Enquiry Report on the same. It therefore, ordered that Social Investigation Report on 7/9/2023 at 10:00 hrs. The events on 7th September 2023 reveals that the Social Welfare Officer informed the Court that the Social Investigation Report is ready and the Court permitted it to be read out in presence of the parties and their counsel, noted that the issue is for custody, custody to remain with the applicant and respondent accorded access. It thus, ordered that ruling to be delivered on 5th October 2023 at 10:00 am. Indeed, on 5th October 2023, the ruling was delivered in presence of the parties in person, their respective advocates and Social Welfare Officer Ms. Specioza Mushi. I have critically examined the series of events pertaining to the matter as revealed from 13th July 2023 to 5th October 2023 to ascertain whether the parties to the appeal were afforded opportunity to be heard or otherwise. It is my finding that the parties were not availed opportunity to 12 | P a g e be heard nor either of them was required to present its case before the ruling was made. It can be lucidly observed that on 13th July 2023, the Juvenile Court ordered the disposal of the preliminary objection by way of written submission and categorically provided the scheduling order on the submissions. Further, it is on record that on 27th July 2023, the respondent through a two pages’ document with attachment of JCR Form No 8 submitted in support of the Preliminary Objection as the title of the document reveals. In similar latitudes, the appellant filed a three pages’ document titled “Applicant’s Reply to the Respondent’s Submission on the Notice of Preliminary Objection” filed on 10th August 2023. It is settled principle of law in this jurisdiction that preliminary objections must be disposed first prior to the hearing of the main case/matter unless the court directs otherwise. The reasons are simple and straightforward that as per Mukisa Biscuit, preliminary objection relates to pure point of law related to jurisdiction, limitation of the matters etc which makes the application/case/ or matter before the court unmaintainable. This is the only aspect that the Juvenile Court was mandated to determine at this juncture as the parties had submitted through written submission of the preliminary objection. There was no order on hearing of the application. 13 | P a g e The Law of the Child (Juvenile Court Procedure) Rules, GN No. 182 published on 20/5/2016 provides for the procedure of hearing of the matters relating to custody and access of children. In particular, Rules 69, Rule 71 and 72 are relevant in the context of the matter. It appears that hearing is three staged. The first stage is when the matter is for first hearing where parties are enjoined to utilize the mediation processes, by court informing the parties on the available mediation service, inform them on the need to settle the dispute through mediation and need to attend the hearing. Indeed, Rule 69 of the Juvenile Court Rules provides that: 69.-(1) The date for the first hearing of an application shall be not late than twenty-eight days after the application has been filed. (2) When informing the parties of the date of the first hearing, the court shall- (a) provide details of any mediation service that is available; (b) inform the parties that they will be required to attempt to settle their dispute through mediation before the first hearing; and (c) require the parties and any interested person who has been served to attend the hearing. 14 | P a g e The second stage seems to availing parties’ opportunity to present their evidence. This is catered by Rule 71(1) and (2) of the Juvenile Court Rules, GN No. 182 of 2016 provides for the hearing of the matter on custody and access to children. In particular, Rule 71(2) is lucid that: (2) Where the parties have seen a mediator and evidence is provided that they have not been able to resolve their differences, the court shall proceed to hear the case. The third stage, is the inclusion of the role of the social enquiry report in the process of determination of the matter before the Juvenile Court. Rule 72(1) of the Juvenile Court Rules, GN No 182 of 2016 provides for the Court’s permission to direct a Social Welfare Officer to prepare a social enquiry report whenever the application is contentious. Though ordering conducting the social enquiry report is optional, yet upon such order being made consideration of the report in determination of the matter is mandatory. This position elaborated above was categorically reiterated in the case of Stephen Mbeba vs Hassan Maulid Mohamed (Civil Revision 2 of 2019) [2020] TZHC 788 (18 May 2020) (TANZLII), at page 10, the High Court (Hon. Masaju, J.:) reiterated on the procedure in the following words: 15 | P a g e Since by now there are no particular institution or persons designated for mediation services, within the local jurisdiction of the trial Juvenile Court and there is no rules of procedure governing such mediation services, it is prudent and advisable that the Juvenile Court shall encourage and facilitate the parties to the dispute to consider their own an out of court settlement between themselves or before a mediator of their own choice and then report back to the said Court for her action accordingly. When the said settlement or mediation, if any, fails the Court shall proceed to hear and decide the dispute between the parties in accordance with the law applicable accordingly. The record indicates that 13th July 2023, the only aspect that was ordered to be heard by way of written submission is the preliminary objection only not otherwise. The prayer was for determination of preliminary objection and the same was ordered to be disposed by way of written submission. Similarly, the order of the court on 17th August 2023 for the parties to undergo Social Investigation by Social Welfare Officer before the ruling of the court is lucid that such ruling related only to the preliminary objection. Nothing more. The same order was reiterated on 24th August 2023. 16 | P a g e My perusal of the proceedings of the Juvenile Court of Dodoma at Dodoma on Miscellaneous Juvenile Application No. 43 of the 2023 reveal there was no court order on hearing of the parties. The proceedings commenced on 30th May 2023 and ended up in a ruling delivered on 5th October 2023 but there is nowhere throughout the proceedings where the two important stages enumerated above, on first hearing by directing mediation settlement and hearing after failure of mediation process, it is indicated that hearing was conducted. The hearing of the preliminary objection by way of written submissions does not mean that the parties were heard. They were heard on the preliminary objection alone not on the merits of the application for sole custody and access of the children. Neither the Social Enquiry Report ordered by the trial Magistrate did replace the hearing requirement of the application. Rules 69 and 71 of the Juvenile Court Rules GN No. 182 of 2016 are couched on mandatory terms. They apply use of word “shall” meaning that hearing of the parties is mandatory stage of the proceedings and it cannot be dispensed with. According to Section 53(2) of the Interpretation of Laws Act, Cap 1 R.E. 2022, the use of word shall imply that something must be performed or done. It states that: 17 | P a g e 53 (2) Where in a written law the word “shall” is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed. Accordingly, the trial Magistrate’s determination of the application for sole custody and access of the child in the application leading to instant appeal was not preceded by hearing of the parties. It contravened a mandatory legal procedure of hearing the parties namely affording opportunity to the parties to present their respective cases by leading evidence in Court. Indeed, the Social Enquiry Report would have played a fundamental role in assisting the court’s determination but only when the court had heard the parties first. It must be stated at this juncture that powers of the Magistrate to manage cases as stipulated in Rule 16(1) (i), (k) and (l) of the Juvenile Court Rules cited by the counsel for respondent do not in way clothe the trial magistrate in the Juvenile Court to dispense with mandatory provisions of the law. I am not in concurrence with the argument that trial magistrate exercised powers under those provisions to dispense with hearing. The learned trial magistrate ought to have determined the preliminary objection in her ruling dated 5th October 2023 as she did at page 5 of the ruling by overruling the preliminary objection and then order hearing of the matter. Indeed, the parties would have opted to adopt the 18 | P a g e respective affidavits filed in support of the application or in opposition to the application. However, such move would only be proper upon the court specifically and explicitly having ordered or fixed the hearing date of the application. Acting differently as the trial magistrate did in the matter leading to this appeal was a clear violation of the law pertaining to hearing of the application for custody and access of children as per the Law of the Child (Juvenile Court Procedure) Rules, GN No. 182 of 2016. Indeed, this contravened a well-entrenched constitutional principle of the right to be heard as enshrined in Article 13(6) (a) of the Constitution of the United Republic of Tanzania, Cap 2 which states that: (6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned. 19 | P a g e The violation of the principle of fair hearing has effect of vitiating the proceedings and decision arising from such proceedings. For instance, in the case of VIP Engineering and Marketing Ltd and 2 Others vs CitiBank Tanzania Ltd (Consolidated Civil Reference 6 of 2006) [2007] TZCA 165 (26 September 2007) (TANZLII), at pages 20-21, the Court noted that: In England, in the case of EARL vs SLATTER & WHEELER (AERLYNE) LTD [1973] 1 WLR 51, it was held that where natural justice is violated it is no justification that the decision was in fact correct. Also in the case of A. G. vs RYAN [1980] A. C. 718, the Privy council said:- “It has long been settled law that a decision which offends against the principles of natural justice is outside the jurisdiction of the decision -making authority.” This Court has expressed similar sentiments in a number of cases. In the case of ABBAS SHERALLY & ANOTHER v ABDUL SULTAN HAJI MOHAMED FAZALBOY, Civil application no. 33 of 2002 (unreported), for example, the Court said:- “The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been 20 | P a g e reached had the party been heard, because the violation is considered to be a breach of natural justice. “ Similarly, in the case of Rajabu Yusufu Kirumbi & Others vs Wendo Mlaki & Others (Civil Appeal No. 137 of 2021) [2024] TZCA 211 (20 March 2024), at pages 6-7, the Court of Appeal stated that: It is a cardinal principle of natural justice that a person should not be condemned unheard, fair procedure demands that both sides should be heard. Further, the decision reached in violation of the principle of natural justice is void and is of no effect. Our jurisdiction is blessed with authorities which emphasised that, the courts should not decide matters affecting rights of parties without according them their right to be heard. Just to mention a few: 1. Mbeya-Rukwa Autoparts and Transport Limited v. Jestina George Mwakyoma [2003] T.L.R. 251, 2. Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (Unreported), 3. ECO-TECH (Zanzibar) Limited v. Government of Zanzibar, ZNZ Civil Application No. 1 of 2007 (unreported), 21 | P a g e 4. Samson Ng'walida v. The Commissioner General of Tanzania Revenue Authority, Civil Appeal No. 86 of 2008 (unreported), 5. Oysterbay Villas Ltd v. Kinondoni Municipal Council and Another, Civil Appeal No. 110 of 2019 [2021] TZCA 190 (7th May 2021, TANZLII), 6. R.S.A Limited v. Hanspaul Automechs Limited and Another- Civil Appeal No. 179 of 2016 [2021] TZCA 96 (6th April 2021, TANZLII). In Mbeya-Rukwa (supra) the Court expressed the position of the law with respect to the right to be heard. It is a fundamental constitutional right. From the plethora of authorities above that the violation of the right of a party to be heard renders the decision nullity thus such decision is of no effect. As I have noted that the proceedings of the Juvenile Court of Dodoma dated 17th August 2023 when the Court directed the parties to undergo Social Investigation by social welfare officer before Ruling of the Court to 5th October 2023 were marred with irregularities thus they deserve to be expunged from the record for being nullity. Indeed, the decision of the Juvenile Court of Dodoma contained in a Ruling dated 5th October 2023 is a nullity for determining the application for sole custody of the children without affording the parties the right to be 22 | P a g e heard. The whole of the ruling is therefore overruled and the orders thereto are set aside. Having determined that proceedings dated 17th August 2023 all through 5th October 2023 inclusive are expunged, the ruling quashed and the orders thereto set aside, I am compelled to direct a way forward. It is settled opinion of this Court that the case file be remitted to the trial Juvenile Court of Dodoma for proceeding with determination of the application in accordance with the law. As a result, the appeal is allowed with no orders as to costs. It is so ordered. DATED at DODOMA this 29th day of August 2024. E.E. LONGOPA JUDGE 29/08/2024. 23 | P a g e