ocr 19CIVIL 4722024 SAID SALUM MAKAKA VS HABIBA ZAWADI

IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 472 OF 2024 (Arising from Civil Application No. 391 ofJuvenile Court of Dar es Salaam at Kisutu) SAID SALUM MAKAKA...................................................... APPELLANT VERSUS HABIBA ZAWADI......................................................... RESPONDENT JUDGMENT Date of last order: 29/08/2024 Date of Judgment: 03/10/2024 OMARI, J. Aggrieved by the decision of the Juvenile Court of Dar es Salaam at Kisutu in Civil Application No.391 of 2023 Said Salum Makaka the Appellant herein filed an appeal on three grounds namely: 1. That, the trial court erred in law and fact by placing the custody of the said KS to the Respondent without considering the fact that the best interests of the child will be jeopardized. 2. The trial court erred in law and in fact by not order (sic} tor social inquiry/investigation report in respect of the child during proceedings hence came with judgment which did not favour the child in issue. 3. That the trial magistrate erred in law and in fact by placing the custody of the Respondent without considering and analysing the 'evidence adduced by the Appellant. On the basis of these three grounds the Appellant prayed for orders that the appeal be allowed, ruling and order of the Juvenile Court of Dar es Salaam at Kisutu be quashed and set aside and that the child be placed under his custody. When the matter came for hearing it was ordered to be heard by way of written submission. A scheduling order for written i submission was entered so as to dispose the matter in writinn tn wit the parties complied. Mr. Chuwa drew and filed the Appellant's submission. He commences with the first ground stating that as per section 4(2) of the Law of the Child Act, Cap 13 RE 2019 (the LCA) any matter relating to a child has to be determined with the best interests of the child (the BIC) as a primary consideration. This, according to counsel is not what the magistrate did when she placed the child, who is 10 years, with the Respondent while it is not mandatory to do so as per section 26(2) of the LCA. Similarly, counsel argued that the trial magistrate did not consider the proVisions of Page 2 of 13 section 39 (2) (b) on the sex and age of the child. Further, Mr. Chuwa submitted that during the hearing of the Application, his client presented evidence that the Respondent had failed to "manage and make a close follow up" of the child which led to the child being absent from school and as a result he performed poorly thus violating section 8(1) (e) of the LCA which provides for his right to education. This, according to counsel is something that even the magistrate admitted on page 8 of her Ruling but still granted custody to the Respondent. Mr. Chuwa concluded oiji the first ground of appeal stating that the child is suffering as a result of changes in custody. Submitting on the second ground of appeal counsel cited section ;45 (1) of । the LCA and argued that a Social Inquiry/Investigation Report: (SIR) is important to consider the BIC and section 45(2) of the LCA provides that once a SIR is ordered the court must consider the same before making its orders. He went on to assert that while the SIR was ordered by the trial court, however, the magistrate did not consider the same when making its reasoning or order this violating the law and the welfare of the child and if she had then she would have reached a fair judgment. Arguing on the last ground of appeal Mr. Chuwa was of the viewlthat the juvenile court did not consider the evidence adduced by the Appellant, complaining that while the court recognized a letter and the extract of the attendance register it did not put any weight on the same. This, according to him, means if the child remains in the Respondent's custody |then the performance in school will continue to deteriorate. Furtnermore; counsel argued that the court disregarded the letter from the letter fromithe local government authority stating the parties had agreed to handle the matter themselves and agreed that the Appellant would have access to the child. He also contended that his client has a permanent residence as per the evidence tendered thus, the child would have a better environment. More I so because it is a male child. Counsel concluded his submission by praying that since the decision of the trial court is unfair as it deprives the Appellant of his rights and does not consider the BIC; thus, it needs to be quashed and the appeal be allowed with costs. In her submission, the Respondent stated that the trial court's decision was made in consideration of the BIC as per section 39(1) of theTCA and that it is based on the evidence the child had been under the custody of his mother since birth while the Appellant was not involved. She went on to argue that the trial court considered continuity of care as per Rule 73(d) and (e) of the Law of the Child (Juvenile Court Procedure) Rules, 2016 and the case of Joseph Cyprian Massimba v. Maureen Said Mnimbo, Civil Appeal No. 55 of 2019 in which the court observed that a court should accord due consideration to the undesirability of disturbing the ife of an infant by changes in custody. Further to that the Respondent submitted that the trial court on page 11 of the Ruling also considered the wishes of the child who stated they prefer to stay with the Respondent. 'She also referred to section 39 (2) of the LCA and Rule 73(a) of the Regulations and argued that the trial magistrate considered other issues not just the sex of the child in granting custody; thus, guided by the law and the BIC |i arrived at the decision it did. । On the second ground of appeal, the Respondent was of the view that the SIR was conducted as per section 45 (2) of the LCA and the court was guided by the same and made a decision based on the BIC. Submitting on the last ground of appeal she argued that the trial court correctly evaluated and analysed the exhibits/evidence adduced and tendered and icorrectly decided the matter. She contended that the court was of the vieviz that the school attendance issue while being a wakeup call to, the Appellant should have been communicated to the Respondent and not raised the! same in court. And, schooling should not be the only reason for granting custody to a parent as per the case of Mnyonge Idrisa v. Kiumbe Hussein, PC Matrimonial Appeal No.4 of 2020 TZHC 1792 where this court stated that । the BIC is more than food, shelter and schooling. As for the parties' agreement that was overseen by the local government authority the Respondent contended that it was the Appellant that had not uphold his end of the bargain as he was not providing maintenance for the child, who I he has not since he left him at age one. The Respondent argued that while it maybe true that he has a permanent residence that cannot be the only reason to give him custody of a child that has been living and caijed for by the Respondent. She asserted that the Appellant failed to prove that the i child's rights were in jeopardy and then concluded that the appeal should be dismissed with costs. | In his rejoinder, Mr. Chuwa argued that the court in considering the BIC should have considered that a male child of 10 years has a lot to learn from the Appellant and according to section 26(2) of the LCA it is not mandatory for the child to be placed with the Respondent. And, since she I caused the child to perform poorly in school. He argued that the । Respondent did not state that a change in custody would disturb the life । of the child while the Appellant is able and stable enough to stayl with the child. Complaining that the court considered nothing else other than the wishes of the child since clearly the Respondent has exhibited; a lot of failures thus not suitable for placement of the child. On the second ground of appeal counsel reiterated his argument that the evidence of the Appellant was not considered with the entitled weight. The Respondent did not dispute that. He also pointed out that she is the one who did not keep her end of the agreement as part of that agreement was to have him live with the child when he attained 10 years, something that the trial court did not consider. Mr. Chuwa concluded his rejoinder arguing i that the Respondent's submission is aimed at misdirecting the court as it denies various issues without considering that it is the child that will be affected. He then prayed for the appeal to be allowed with costs: Having considered the parties' submission for and against the grounds of appeal, I find it pertinent to state that there is only one issue for this court's determination. That is, whether the appeal is meritorious and if sp what is to follow. In doing so I have gone through the trial court's record and the filed SIR. The Background of this matter is rather simple. The Appellant filed Civil Application No. 301 of 2023 at the Juvenile Court of Dar es Salaam at Kisutu seeking to be granted custody of a (then) 9 year old male child who is his son under Rule 63 of the Law of the Child (Juvenile Court Procedure) Rules, 2016. The Respondent vehemently opposed the Application. Considering whether the Application was meritorious the trial magistrate delved into the law stating that section 4(2) requires that in all a’ctions to be had the BIC is a mandatory requirement. She also reffered to the cases Sajjad Ibrahim Dhamamsi and Ally Jawad Gulambas v. iShabiri I Gulamabas Natha,Civil Appeal No. 42 of 2020, Mbwana Nyabula Malia v. Eva Mganga,Civil Appeal No. 12 of 2022, Adam Kyabalile v. I: Hanna Omary Kapunga, Matrimonial Appeal No. 1 of 2020 and Bhayat Dayal Velji v. Chandri Vinesh, Civil Appeal No.45 of 2017 stressing the BIC shall be a paramount consideration in all actions concerning a child. A i principle, she sought to be guided by in the disposal of the application. She also referred to section 37, and 39 of the LCA which provides that a parent may apply for custody and the factors to be considered by the court when granting custody respectively. In addition, the learned magistrate referred to Rule 73 of the Rules then went on to determine the dispute, i, She was of the view that the Appellant should have proved his allegations on a balance of probabilities just as much as he failed to show how the BIC are in his seeking for custody or how the child will be in jeopardy if he I continues to be in the Respondent's custody where he has always been । since his birth. > 1 I The trial court also observed that the Appellant did not dispute that it was the Respondent who had custody and had been caring for the child therefore, changes in custody without evidence that the child has| suffered any emotional or physical loss and or is endangered would not be in the BIC as per Rule 73(d) and (e) of the Rules and the cases of Joseph I Massimba v. Maureen Said Mnimbo, Civil Appeal No. 55 of 2019 and Festina Kibutu v. Mbaya Ngajimba [1985] TLR 44 both bf which observed the importance of courts considering the undesirability of disturbing the life of the infant by a change in custody. The trial court also considered that when the child was asked he expressed that he wished to stay with the Respondent but his father to be granted access atjid as per the Mnyonge Idrisa v. Kiumbe Hussein, PC Matrimonial Appeal No.04 of 2020 granted the child's wishes. On page 12 of the ruling it is stated: "Having found the respondent a proper person to remain with child custody, this is not a bar to the I, applicant to move the court to rescind its order where I there are any changes in circumstances which render j the respondent unfit to have custody of the child. ■ Until such time this court order the custody of the child to remain under the respondent." This in my view circles back to the finding that the Appellant failed to establish his case. The learned trial magistrate went on to state: | "The Applicant as the father, however, shall not be denied by the respondent access to his child but also without affecting his education calendar" After the above observation and giving the Appellant access to the child the trial court made orders to facilitate its findings and access for the Appellant. In this appeal, the Appellant's counsel is claiming that the decision is unfair I for not considering that the child being over 7 years old does not need to stay with the mother. That is true and I do agree with Mr. Chuwa that the child is over 7 years and also that at the formative stage the child needs a father figure. However, the trial court never uttered that they are placing the child with the Respondent because he is below 7 years. Likewise, there are four other factors for consideration that the court paid heed to that the Appellants counsel seems to be oblivious of. The first is that the child has lived all his life with the Respondent. Secondly as can be seen in the SIR and the trial court's ruling the child expressed his wishes to live with the Respondent. Moreover, the court granted access to the Appellant, therefore on weekends and school holidays he has access to the child. Lastly, the court considered that change in custody while there is no reason advanced to disturb the life of the infant or vary the existing care arrangement therefore left the child in the custody of the Respondent. The reasons advanced by the Appellant though somewhat valid!; do not I outweigh the BIC. As already stated there are multiple factors to be considered when granting custody. The trial court did not ignore the Appellant's claim and evidence regarding the Respondent's failure to supervise the child's schooling leading to him being absent and poor performance. It observed that the situation is a wakeup call and in my view it's a wake up call for both parents not just the Respondent, the trial court weighed the evidence brought before it and the BIC and ordered the child to remain with the Respondent. Thus, I find the first ground of appeal misconceived and lacking in merit and dismiss it. As regards the SIR which is the core of the second ground of appeal; the ground was crafted to seemingly suggest that none was ordered, however, the parties submission veered towards the court not considering] the SIR which as per Rule 72(4) of the Rules the court has to consider it and even so Rule 72(3) still call for consideration of BIC in giving recommendations. As I was going through the record I found the SIR that is in the trial court's file thus, a SIR was ordered. The trial court in its ruling does not expressly mention the SIR but when one reads through the ruling it can c early be seen that the same was considered as the ruling is based on!the SIR recommendations. For instance, it is through the SIR that the court knew that the child not only expressed wishes to live with the Respondent but also for the Appellant to have access. Thus, the ruling is compliant with Rule 72(6) of the Rules and I find no reason to fault the trial court on the same. I therefore find the second ground without merit and dismiss it. The last ground is based on the failure to analyse the evidence! Having gone through the Affidavit filed by the Appellant in support! of the Application and the rest of the record I am inclined to agree with the trial magistrate that the Appellant failed to present any evidence to support his cause as per section 110 of the Evidence Act, Cap RE 2022. Moreover, he also failed to prove that the child was in danger or that his best interests are at jeopardy by being in the custody of the Respondent. The trial court arrived at the conclusion it did by applying the evidence that was adduced by the parties. The Appellant's counsel is of the view that the letter from the local government authority as regards the parties' agreement was not । given sufficient weight, well, the fact that the parties ended up in court is an indication that whatever they agreed on was not seen through by either both or one of them. Moreover, the Application he filed to the Juvenile Court of Dar es Salaam at Kisutu was not to enforce the said letter. As for the extract of the attendance register and concerns that the child was doing poorly in school, as I already stated above I hold the same view as the trial court magistrate, that was a wakeup call to the parents. Nonetheless in addition to what the trial court observed, I would like to I state that parents who like the parties herein have to co-parent are not exempted from their duties and responsibilities as per section 9 of the LCA on account of the fact that they are not the custodial parent or the parent । who is the primary caregiver. i In my considered view if this is understood then parents will stop using children as pawns or instead of intervening when and where they see an issue with the child's upbringing they look at that as an opportunity to grab the child from the custodial parent. Having said this, I also find the third ground of appeal unmeritorious. After having discussed as above, I dismiss the appeal. The ruling and orders of the Juvenile Court of Dar es Salaam at Kisutu are upheld. I make no orders as to costs. Order accordingly. A.A. OMARI JUDGE 03/10/2024 Judgment delivered and dated 03rd day of October, 2024 via Virtual Court in the presence Ms. Diana Sing'ombe the Appellant's advocate, the Appellant and Ms. Theresia Sheshe-RMA A. OMARI JUDGE 03/10/2024