oc novena CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY

ONE STOP JUDICIAL CENTRE CIVIL APPEAL CAUSE NO. 21171/2024 (Originating from the decision of the Juvenile Court of Dar es Salaam in Civil Application No. 1544/2024 before Hon. O.S. Mtae RM dated 13th May 2024) NOVENA CORNEL NGONYANI........................................ APPLICANT

VERSUS DENIS DISMAS CHALE.............................................. RESPONDENT

JUDGEMENT < ■ ' Date of test order: 20/11/2024 Date of Judgement: 22/11/2024 S. D. MWAIPOPO J This appeal arises from the decision of the Juvenile Court of Dar es salaam located at Temeke One Stop Judicial Centre. The Appellant who was the Applicant in the Juvenile Court, being dissatisfied with the Judgement and Decree of the Juvenile Court of Dar es Salaam in Civil Application No. 1544/2024 (Hon. O.S. I^ltae RM), delivered on 13th May 2024, has come to this court for redress. .. i Initially the Appellant filed an Application before the Juvenile Court praying for the following orders against the Respondent; Maintenance of TZS 300,000, per month, TZS 1,170,000 as school expenses for Darryl (son) and TZS 1,150,000 for Natalia Dennis(daughter). Upon determination of an Application the Juvenile Court granted an order of TZS 150,000 per month and also ordered the Respondent to pay for education expenses based on his financial capacity and also medical insurance. • Aggrieved by the said decision, the Appellant filed a Petition of Appeal armed with two grounds as follows: - 1. That the Trial Court erred in law and fact by ordering the Respondent to cover education expenses of his children at his financial capacity while he is still financially capable to educate the children at the same schools as they were studying before. % 2. That the trial court erred in law and fact by making

orders of maintenance and education expenses without considering the health condition and best interest of the children. Thus, the Appellant prayed for the following orders; a) That the Appeal be allowed and Judgement of the Juvenile Court at Dar es Salaam in Civil Application No. 1544/2024 before Hon O.S. Mtae RM, dated on 13th May, 2024 be quashed and set aside. b) That the Respondent be ordered to contribute maintenance of the said children to the tune of Tshs. 300,000 every month. ,*■ c) .That the Respondent enroll the children to schools convenient to their health conditions and for their best interests. d) Costs of this appeal be provided by the Respondent e) Any other relief(s) this Hon. Court may deem fit an adjust to grant. The hearing of the Appeal proceeded by way of written submissions * pursuant to the timetable drawn by the Court. At the commencement of hearing the Appellant enjoyed probono legal services from Wigayi Julius Kissandu, learned advocate from Women's Legal Aid Centre (WLAC) while the Respondent enlisted the services of Sued Ismail, learned Advocate. Submitting in support of the Appeal, the Appellant stated that the Appellant and the Respondent were once love birds but now are in a tug of war on how to maintain their children. The Respondent is using the children to punish the Appellant after the termination of their relationship. The Appellant sought

before the trial court among others; orders for maintenance, to the tune of TZS 300,000 every month, school fees and other^chool expenses and continuation of payment of health insurance against the Respondent since he is their biological father thus eligible to maintain and contribute towards their welfare and maintenance. However, the trial court ordered the Respondent to contribute monthly maintenance to the tune of TZS 150,000/= which does not match the earning capacity of the Respondent as well as the welfare of the children therein. The Appellant referred the court to section 44 of the Child Act % which provides for the conditions to be considered by the court in granting an order for maintenance whereby she referred to section 44(a) and 44(e) which make reference to the income and wealth of both parents of the child or of the person legally liable to maintain the child and other rights of the child under the Act. Despite the fact that the Respondent stated at the trial court that he is employed and has means of income, as per Annexture NCN2 and NCN3 (Salary slip) and contract of employment, the trial court, despite acknowledging that the Respondent is financially capable to maintain his children, it held that, the Appellant's prayer for maintenance order to the tune of TZS 300,000/= against the Respondent is unattainable considering the fact that the Respondent has other

children to take care of ancrthat both parties are required to take their obligations of maintaining their children. Arguing further on section 44 of the Law of the Child Act, the Appellant implored the court to consider the rights of the child as stipulated under the Act. She submitted that together with the Respondent they were blessed with two children, among them, Darryl is a child with special needs as he is disabled thus requires special attention and care. She contended that, unfortunately the trial court made orders of % maintenance guided by the Social Inquiry Report filed and admitted in court while there was no any inquiry made by the Social Welfare to the children to determine their & welfare and needs. This has led the trial court to reach into a decision without considering the health and best interest of the children herein. She referred the court to section 8(6) of the Law of the Child Act Cap 13 R.E 2019. She contended that the trial court herein has deprived the child Darryl with an opportunity to be taken care of under the special care and facilities based on his physical abilities as it ordered the Respondent to cover his education expenses at his financial capacity and if the Appellants wants the children to study beyond that, she could cover additional costs. Moving to the second ground of appeal, the Appellant referred to TZS 150,^00 awarded per month for

the maintenance of children. She cited the provisions of section 129 (1) of the Law of the Child Act Cap 13 R.E 2019 which gives duty to a father to maintain his children whether they are in his custody or of another person. She contended that the trial court ought to have considered the health condition and best interest of the children in alignment with the Respondents financial capacity before making orders for maintenance. She also referred the court to the case of Festina Kibutu * vs Mbaya Ngasimba (1985) TLR 42 where the court ordered that in deciding the amount of maintenance for a child, the court should hold an inquiry as to the means of both parents in order to arrive at a just decision. It was the court's view that where applicable the court should take into account the customs of the parties and the conditions prevailing at any particular time. She submitted that the court ought to have conducted a Social Inquiry Report as per section 45 of the Law of the Child Act Cap 13 R.E 2019 to determine children's welfare along with the Respondent's financial capacity. Submitting in rebuttal, the learned counsel for the Respondent stated that the trial court granted the Appellant herein orders sought against the Respondent for the maintenance of the two stated children to the tune of 15d^t)00/= per month after a vivid evaluation of the income of the Respondent. He disputed

the Appellant's reliance on section 44 of the Law of the Child Act, simply because the Respondent is an employee and therefore has the means. He argued that the Respondent's earning capacity was well explained during trial that the Respondent had another family, wife and a child who also has been depending on the same income and the court agreed with his defense and ordered both parties to % contribute to their obligations. Therefore, if the Appellant finds that TZS 150,000 is not’enough then he submitted that, she can also contribute for the maintenance. With regard to section 44 (e) of the Law of the Child Act Cap 13 R.E 2019 cited by the Appellant, the Respondent contended that the Appellant's arguments that the child namely Darryl Denis is a child with disabilities and therefore has special needs and that the Social Welfare Officer filed a social inquiry report in court, while no social welfare inquiries were made, are purely misleading the court. He submitted that the Appellant during trial proceedings applied for maintenance of the children and in her Application, there is nowhere it was stated that one of the two children, thaMB Darryl4needs special care, neither was it pleaded in her pleadings or submissions during hearing of the Application. The same was also not submitted during the meeting with the Social Welfare Inquires through the meeting which gathered all the

parties. If this was a concern, the Appellant herein could have pleaded it in the pleadings and could have tried any means to be part of the trial record. He argued that it is trite law that on appeal one cannot bring new facts which were not in the record of the trial court. He argued further that, the Respondent, the father of the child has stated that the said child has no disability and this might create psychological effects to the child as this issue was never brought before the trial court. Similarly, the Appellant argued that, she was offered with an opportunity by the Children's care institution to educate her children, he argued that again this is a new issue which was not tabled during the hearing of the case. With regard to the order of maintenance of TZS 150,000 per month, the Respondent argued that he has started complying with the said orders and also the order of taking children to the government school, however, the Appellant has completely denied the children the right to education by not allowing them to go to school for more than one year now. The Respondent stated that the prayer for TZS 300,000 per month by the Appellant is too huge since he has another family too, to take care of and hisTids with the Appellant. He suggested for the Appellant to allow the children to have shelter in their father's home so that the Respondent can balance his financial

burden and responsibility. Regarding Appellants citation to section 129 of the Law of the Child Act Cap 13 R.E 2019 and the appropriateness of the rate of TZS 150,000 per ■« month awarded by the court, he argued that the amount of TZS 150,000 ordered by the court is enough based on the circumstances which were tabled to help the court reach the decision during trial proceedings. He concluded by stating that the Appellant failed to meet the threshold stated under section 110 (1) of the Evidence Act Cap 6 R.E 2022. In rejoinder the Appellant reiterated her submissions in chief. Having gone through the rival submissions of the parties, the broad question to be resolved is whether this appeal has merit. In determining this appeal i am guided by the following principles, one, the first jppel late court can evaluate evidence of the trial court. Two, under section 110 of the Law of Evidence Act, he who alleges must prove. As adumbrated herein above, The Appellant has filed two grounds of appeal, in order to contest the decision of the Juvenile Court of Dar es Salaam in Civil Application No. 1544/2024 decided by Mtae RM on 13th May 2024. I dealing with this appeal, I shall determine the two grounds conjointly % since they are related,- as follows; The first ground of appeal is to effect that the Trial Court erred in law and fact by ordering the Respondent to cover education expenses of

his children at his financial capacity while he is still financially capable to educate the children at the same schools they were studying before and the second ground states that, the trial court erred in law and fact by making orders of maintenance and education expenses without considering the health condition and best interest of the children. I have gone through the records and observed that, the Appellant in her Application before the Juvenile Court, applied for the following orders relating to educational expenses and maintenance.

1. TZS 300,000 as money for maintenance per month.

2. TZS 1,170,000 as school expenses for Darryl. < 3. TZS 1,150,000 for Natalia Dennis. The trial court, upon determination of the matter, ordered for TZS 150,000 per fhonth to be paid to the children by the Respondent and that the Respondent should continue to cover education expenses of his children at his financial capacity. The court further ordered that, in case the Applicant/Appellant wants the children to study beyond what has been ordered based on the Respondents financial capacity, she should cover the additional costs. In doing so, the trial court also relied on the provisions of section 8 and 44 of the Law of the Child Act, stating that it is the duty of the parent to maintain their children by providing them with food, shelter, clothing medical care, education and other necessities of life and that based on the income of the Respondent, the financial responsibilities he has in both families and towards paying for day to day expenses, the court ruled that; *'• th£. children must live in accordance with the economic status of their parents. I shall also in my analysis consider the said provisions of the law. I have revisited the records, evidence and the law in order to satisfy myself ofi this aspect. From the records, i have noted that during the filing of the submissions and at the commencement of hearing, the Appellant tendered annex NCNC2 and NCN3 indicating that

the Respondent was being paid TZS 1,311,8400/=; per month as salary. The Appellant contended that, ,t based on his amount of salary, he ought to have performed his obligations of paying TZS 300,000 per month. However, during the hearing of the Respondents case, the Respondent denied NCN2 and NCN3 and contended that he was paid net salary of TZS 959,752/= and was working at CEFAO Mobility TZ Ltd and not CEFAO Motors as contended by the Appellant and not on the rank or title suggested by the Applicant/Appellant. I have had an opportunity of perusing a copy of the salary slip attached to the Application by the Applicant (in her Reply to Counter Affidavit) showing or indicating an amount of TZS 959,752 as net pay and TZS 1,311,054 as basic pay. I have observed from the evidence and record that, the Appellant stated * th# she is not employed and tendered evidence before the court showing that the Respondent was employed. (Annex NCN2 and NCN3. I have digested the prayers put forth by the Appellant on school fees and maintenance and observed that they make a total of TZS 2,620,000 which is far beyond the amount of salary received by the Respondent as stated and proved in court by the Appellant, i.e. TZS 959,752 In reaching this, decision I have also considered the fact that the trial court conducted an inquiry report which was also read out before the parties and throughout the

report, it was also stated that the Appellant is also doing some small business activities as per the information given by herself, which could act as a source of maintenance to her children or at least the little contribution to be made, I have further observed from the proceedings that there is no record of the parties objecting to the Social Inquiry Report before the trial court. With regard to the Social Inquiry Report, despite the fact that there was no objection raised on the Social Inquiry Report, the Appellant has raised an issue in her appeal that, her children were not involved in the inquiry in order to capture their views. Upon careful scrutiny of this issue, I am of the position that it is not going to detain me for a long time since it was not raised in the Juvenile Court where the Report was prepared and submitted. Therefore, the same cannot be brought now at the stage of appeal. Similarly, I have considered the fact that the Respondent has another family apart from the one with the Respondent. In this regard I also agree with the trial court's finding that the Respondent has also other obligations and expenses to foot using the same amount of net salary. Further, from the record it is very clear that the Respondent could not prove or submit any other form of evidence indicating an extra source of income which the Respondent has apart from the salary. The

Appellant thus failed to prove more income on the part of Respondent apart from the net salary, which could have compelled me rule otherwise. Based on the evidence available I cannot rule more than what is available as I will be embarking on creating more chaos and issuing unrealistic orders which cannot be enforced by the court or even the Appellant herself. In totality, on the issue of maintenance and educational expenses ordered by the Juvenile Court, it is my firm position that, given the amount of the *■ net salary received by the Respondent i.e. TZS 959,752, I have observed that, between the two parents, the Respondent has more income than the Respondent as the trial court rightly held, that is why the trial court ordered him to pay TZS 150,000 per month as money for maintenance. While the Juvenile Court underscored the fact that both parties are not at equal footing in maintaining their children, it still held that they both have an obligation towards taking care of their children. The court then % concluded that the Respondent should be given a bigger share of responsibility since he has more income than the Appellant. I cannot agree more with this position. Therefore, the Juvenile Court was correct in awarding TZS 150,000 per month to be paid to the Appellant, based on the evidence presented in court as well as the Social Inquiry Report, whose inquiry involved

both parents or contain views of both parents. It is my further position that based on the requested amount of school expenses for both children which is almost three times the salary of the Respondent, and the fact that the Respondent had already been ordered to pay TZS. 150, 000 separately for monthly maintenance and also pay ac^in for‘health expenses for the children from the same salary, then, it is my firm position that trial court was correct to hold that the Respondent should cover educational expenses of his children based on his financial capacity, after excluding all those expenses, as the amount for educational expenses requested for by the Appellant is bigger than the amount of the salary received by the Respondent and more so, bigger than the remaining balance of the salary after paying for other expenses ordered for by the Juvenile Court. Therefore, considering the provisions of section 44 of the Law of the Child Act, i am of the position that the trial court was right to order the respondent to cover educational expenses of his children at his financial capacity on top of an order for TZS 150,000 for maintenance TZS and also a separate order for medical/health expenses of the children. Considering the importance of the right to education for children and the fact that they have not been in school for a long time, I uphold the position expressed by the Juvenile

Court for the Appellant to add up from where the Respondent ends in matters of education and that their children should be educated based on the economic status of both parents. Considering *• the f§ct that their children have been out of school for a long time as stated by the parties, i order both parties to ensure that the orders given by the court are implemented and that children enjoy their right to education, by going to school, without any impediment. With regard to the second issue raised on the Juvenile Court making orders of maintenance and education expenses without considering the health condition of the boy child (Darryl) who she stated that he has a disability or % is differently abled and the best interest of the children; this court has addressed the said issue as follows; Having gone through the rival submissions of the parties on this aspect i have observed that indeed this issue was not stated in the initial chamber application for maintenance or evidence presented by the Applicant in the trial court. It only came up in the reply by the Respondent who hinted before the court the child was hospitalized at CCBRT while in his custody at a certain point in time, and that it only resurfaced in the reply to Counter Affidavit by the Appellant that the said child was admitted following operation of the legs and that she was not allowed the Respondent to see him. If

however did not come as an issue of disability for consideration by the court and that is why the trial court did not deal with it. I thus agree with the Respondent that it is not proper to bring it now as a new, issue in the appellate stage contrary to legal procedures. This issue also would also require parties to adduce evidence on the disability of the child to enable the court to reach a just decision and this court is not the right court and stage for that. Further, even the Social Inquiry Report did * not address this issue.- It is therefore dismissed at this stage. ♦ In the upshot, I proceed to issue the following orders; f) The Appeal is dismissed and the Judgement of the Juvenile Court of Dar es salaam located at Temeke, in Civil Application No. 1544/2024 before Hon O.S. Mtae RM, dated on 13th May, 2024 is hereby upheld a. The Respondent shall contribute monthly maintenance to the tune of TZS 150,000 per month as ordered by the trial court without defaulting on any month via the account no. of the Respondent indicated in the trial court's decision b. The Respondent shall continue to pay for the medical expenses and * ’health insurance of the children c. The Respondent shall continue to cover all education expenses of his children based on his financial capacity; in case the Respondent wants the children to study beyond what the Respondent provides then she shall cover additional costs as ordered by the trial court d. Both parties should ensure that orders given by the court are implemented and that children are enrolled in a school they can afford and. that, they enjoy their right to education instead of just being at home.

3. The issue of the of the disability of the boy child is dismissed since it was not raised in the lower court.

4. Considering the nature of the matter I grant no order for costs. Dated at Temeke One Stop Centre this 22nd Day of November 2024 S.D. MWAIPOPO

JUDGE < ‘ 22/11/2024