13 0cr tanzlii KUZILWA

IN THE HIGH COURT OF THE UNITED RUPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 17678 OF 2024 (Arising from the decision of the District Court of Temeke at One stop Judicial Centre in Misc. Civil Application No. 00002565 of2023 dated 21th June, 2024 by Hon. Manfred Sanca-RM) SARAH SHARON KUZILWA.............................................................. APPELLANT VERSUS ABDALLAH SINGANO................................................................... RESPO MDENT JUDGEMENT Date of hearing: 08/11/2024 Date of Judgement: 29/11/2024 S.D. MWAIPOPO J, This Appeal emanates from the decision of the District Court of Terreke at One Stop Judicial centre in Misc. Civil Application no 00002565 of 2023 decided by Hon. Sanga RM). The brief facts of this case are that, the Appellant herein initially filed matrimonial cause no 190/2022 and upon determination of the said matter, the District Court granted custody of the child Ameer Abdallah Sing ano to the Appellant herein. Aggrieved by the actions of the Appellant herein, as far as the custody order is concerned, the Respondent herein filed Misc. Civil Application no. 00002565/2023 at Temeke District Court, praying for the court to vary or rescind the custody order granted to the Appellant herein. Upon determination of the Application, the District Court allowed the Application and granted custody of the child to the Respondent herein. Aggrieved by the decision of the District Court, (Hon M. Sanga RM), the Appellant has now preferred an appeal before this court containing six grounds as follows: i. That the Magistrate erred in law by determining the welfare of the child by variation of custody without social welfare report. ii. That the Magistrate erred in law and fact by determining the interest of the child without considering the child age, contrary to the Law of the Child Act. iii. That the Magistrate erred in law and facts to order the variation of child to be placed to the custody of the Respondent for the reasons of the relocation of the child from Dar es salaam to Lushoto. iv. That the Magistrate erred in law and fact for not considering the best interest of the child, welfare and education development of the child. v. The Magistrate erred in analysing the capacity of maintenance and means of the Respondent to raise the child. vi. That the Magistrate erred in law by framing issues after parties have finished submissions, denying the appellant right to be heard. Wherefore, the Appellant prays for the court to issue the following orders: i. That the Ruling be quashed and set aside ii. Appeal be allowed iii. Costs of this appeal iv. Any other relief(s) this honourable may deem just and fit to grant When this appeal was scheduled for hearing, the Appellant was represented by learned advocate Mr. Steven Mwakibolwa whi e the Respondent enjoyed the services of the learned advocate Mr. Jcvinson Kagirwa. Both parties agreed to dispose the appeal by way of written submissions, pursuant to the timetable drawn by the court. Arguing in support of the appeal, Mr. Mwakibolwa prayed to consolidate the 1st, 2nd and 4th grounds of appeal that the magistrate made a decision to vary the custody order without consideration of the social welfare report and without stating the circumstances that have changed to justfy the variation of custody order. He submitted that the Law of Marriage Act is very clear that child under the age of 7 years shall be placed under the care of the mother, unless there are very special circumstances that hinder this, he explained that the main issues that should be looked at are the living environment and social welfare of the child, he also cited Section 125 of the Law of Marriage Act which states clearly what shall be the conditions for the court to determine custody of the child. On the 3rd ground of appeal, Mr. Mwakibolwa submitted that the ApDellant contests the decision of the lower court because while the decision has been to vary custody order, what was argued and presented in court was contempt of court order and nothing else. The custody of the chi d was granted under section 125 of the Law of Marriage Act, the decision of the court was to vary the custody order simply because the Appellant moved to Lushoto from Dar es Salaam, this can never be a ground for var/ing a custody order if anything it is simply a contempt of court order which is not a reason under any law to order variance of the custody order. He further submitted that, the Magistrate went further to state on page 4 of the ruling that the reason for his decision is the Appellant moving from Dar es salaam to Lushoto, that, ignoring the fact that the Appellant had moved to Lushoto as her new work station and she moved there w th her child and enrolled him to school. As far as the conditions for custody of the child in this dispute are concerned, there were no changes that warranted the variation of the custody order as requested by the Respondent. He also argued that, upon reading the decision of the court, it is clear that the Magistrate has interchanged two concepts, that is contempt of court order with that of circumstances or material change, what has been termed as material change is mainly contempt of court order. That the court order in itself did not restrict the Appellant from moving, only required her to consult the Respondent which she did inform the Respondent hence there was no valid ground to vary the custody order. On the 5th ground of appeal, he submitted that in the Application that is the subjected of this appeal, the Respondent has claimed that he can maintain the child without failure, in the original matrimonial proceedings the Respondent among other things showed at that material time that he was not financially secure to take care of the child entirely, somethirg that let the Appellant to move back to her parents' home, at first, then later on use her entrepreneurship skills to provide for her child. Therefore, she cannot be punished for doing her parental duty. He also stated that in the decision for variation, the Magistrate on page 5 states that there is no proof that the Respondent is financially poor, this is an odd way of establishing rights of individuals, firstly you can only prove the posit ve, no one has the ability to prove the negative, secondly, the Law of Evidence Act under section 110(1) and (2) clearly establishes that he who alleges must prove, it was the duty of the Respondent to prove that he is financially capable which was never done at any stage of hearing of the Application. On the 6th ground of appeal, he submitted that the court while determining the issues in any matter must give parties the right to address those issues. It is clear while reading the decision of the lower court the magistrate raised two issues to be determined after the parties had already filed their submissions, this is unfair to the parties particularly the ApDellant who is aggrieved with the decision of the Magistrate to determine the matters without giving her the right to be heard. He explained that page 4 of the Judgment it is clear that the court raised two issues after the parties had already submitted their submissions, which is wrong. In doing so, the court denied the Appellant the right to be heard which is her constitutional right under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. The Court of Appeal of Tanzania in handling similar matter, in the case of George Minja Vs the Attorney General, Civil Appeal No. 75 of 2013 (unreported), ordered a trial de novo because of injustices occasioned by failure of the trial court to draw issues before the trial started. In the case of George Minja, (supra) the Court held: "Failure to frame issues here was fatal' because it led to the trial court to decide on an unpleaded matters and thus a wrong decision. We would not hesitate to find and hold that the omission has affected the disposal of the case on merits. The right decision in the case did not depend on the alleged issues and so it resulteo into a miscarriage ofjustice. " The counsel concluded by praying that it is on the basis of the above submissions that the Appellant herein prays and asks the honorable court to allow the appeal, quash the decision to vary the custody of the child in this matter and the Appellant be granted custody back. That failure to allow this appeal will be like sending a message to mothers that they should not strive to enhance their lives and those of their children without consent of their former husbands. Submitting in rebuttal, the learned counsel for the Respondent, Mr. Jovinson Kagirwa also began by consolidating the 1st, 2nd and 4th g-ounds as follows; that the custody order which was issued by the District Court in Matrimonial Cause No. 190 of 2022 granted the Appellant with the custody rights and the Respondent with the access rights/ visitation. In gianting the Order, the trial court granted custody with some reservations for the best interest of the Child. He pointed page four of the typed Judgment; the trial court made the following observations: - ""Even though the Petitioner is granted custody, the tendency to constantly move the child from one school to another and one area to another in a short period of time has been noted with concern, it may adversely affect the child's education and or/social development. Therefore, any such changes to the child's school or area of living should be in consultation with the Respondent" Furthermore, Mr Kagirwa submitted that, the Appellant's Appeal is based on the grounds that there was no social welfare report filed, th.it this argument is misplaced. It is clear that the court had earlier on detei mined the best interest of the child and granted Custody Order to the Appellant. The Order subject to this Appeal was due and granted due to acts and omission on the Appellant's side which had an effect of affecting the child's interest and violating the order of the court, the acts and omission which warranted the variation Order. He argued that Social Inquiry Report under our jurisdiction is required during the determination of an application for custody order and not during the Application for variation or appeal as in this case as it is provided under Regulation 72 of the Law of the Child (Juvenile Court Procedures) Rules 2016. He further stated that, the power of the court to make variation is provided both under the Law of the Child and the Regulations. Neither of the two provides that the court shall direct the Social Inquiry Report to be prepared before deciding whether or not to vary the Order. He also stated that, the variation order was due to the obvious g ounds which were not disputed by the Appellant, including registering the child in 7 a Christian school while aware that he is a muslim, changing the child's name by removing the Respondent's name which was replaced by the Appellant's father name. Moving the Child from one place to another without consultations from Dar es salaam to Lushoto. Arguing on the issue of relocation which he termed to be ground no. 4. instead of 3, the Respondent submitted that there is nothing suggesting that the acts of the Appellant amounted to contempt of court order and does not warrant variation.He submitted that the Appellant's argument on this ground is unmaintanable on the ground that the violation of the court's order and keeping shifting from one place to another without consultation with the Respondent amounted to among the factors which necessitated the District court to vary the custody order.Therefore, the option of filing an application for contempt of court order was baseless since it could not protect the best interest of the child. Moving to ground No. 5 of the Appeal, the learned counsel stated that this is totally a departure of the Order under which this Appeal lies. The capacity of the Respondent to maintain the Child should be measu'ed on his personal capacity in raising the child and not material things. Fjrther, the economic position and capacity of the Respondent cannot be referred from previous proceedings but rather the court was concerned with what is stated in the Affidavit. We expected the Appellant to state why the Respondent should not be blessed with the right to raise his child by considering the facts which were adduced in the Affidavit in support. Regarding ground No. 6 of Appeal, the learned counsel for the Respondent stated that it is not clear at all what issues were raised and determined by the court and which the Appellant was not afforded right to be heard. The Application being supported by the Affidavit and disputed by the facts contained in the Counter Affidavit, the court normally would determine the Application by determining whether or not the Application has met the necessary conditions imposed by the provision under which the Appl cation is brought. There is no a procedure for the court to draw issues as if it is the case or Petition in application. The issues raised are issues guiding the court in determining whether the Application is merited and based on facts deposed by parties and submissions filed. He concluded by praying for this court to dismiss the appeal and cost to be shared by each party. There was no any rejoinder filed according to the information contained in the electronic case file. Having gone through the rival submissions of the trained legal minds, it appears to me that this appeal centres on three issues as follows; i. Whether Social Inquiry Report was mandatory in determining the variation of the child's custody ii. Whether the best of interest and welfare of the child was considered by the court when varying the child's custody and giving it to the Respondent iii. Whether, framing of issues after parties have finished submissions in an application, denied the Appellant the right to be heard. In dealing with this appeal, this way, I am alive to the fact that the court can dispose the appeal ground by ground or combine more than one grounds or raise issues to be addressed as long as they address all the grounds of appeal. See the case of Zuberi Bakari Mwichikiti vs Selemani Bakari Mwichikiti, Pc Civil Appeal No. 91353/2023 and Malmo Montagekonsult AB Tanzania Branch vs. Margret Gama, Civil Appeal No. 86/2001(unreported). In determining the first 1st issue, I have observed that the main complain of the Appellant is that trial court determined the welfare of the child by varying the custody order without conducting a Social Inquiry Report. I determining this issue, I have gone through section .45 of the Law of the Child and Regulation 72 of Law of the child (Juvenile Court Procedure), and noted that in Applications for custody, the commission of Social Inquiry Report, whose primary aim is to assist the court to determine the interest of the child, is not mandatory. The said section reads as follows; S. 45 (1) of the Law of the child Act states that: - "A court may order a social welfare office to prepare a social Inquiry Report before consideration of the Application to make an order for maintenance, custody or access. Furthermore, Regulation 72 of Law of the child (Juvenile Court Procedure) states that: - ""Where there is a contested application for custody or access, the court may direct the social welfare officer to prepare a social Inquiry Report." Based on the above provisions, the word may, means not mandatory, it is the discretion of the court to order for a social welfare officer to prepare a Social Inquiry Report. Therefore, the said Report is not mandatory in determining the variation of the child custody. The Based on what has been stated above the commission of the Social Inquiry Report is in the discretion of the court hence the trial court is not bound to conduct the same. Similarly, if I may add up, currently with the passing of the miscellaneous amendments of 2024, the commission of the Social Inquiry Report is mandatory. Since this appeal emanates from the case that preceded the amendments then the same shall not be applicable in the case at hand. In determining the 2nd issue, the major issue raised by Appellant is on whether the best of interest and child welfare were considered when the district court was varying the custody of the child and giving it to the Respondent. In this regard, the Appellant has submitted that her major complain is that trial court varied the custody of the child without considering the age of the child since the child is under 7 years old. Upon reviewing the Respondent's submissions and the trial court's Proceedings, I have observed that the Respondent's claims in this regard are that, one the Appellant registered the child in a Christian schoo while being aware that he is a muslim, two, the Appellant changed the child's name by removing the Respondent's name and replaced it ty the Appellant's father's name and also moving the child from one place to another without consultations from Dar es salaam to Lushoto. Having narrated the submissions and evidence in extenso, I now turn to consider the merits of the appeal based on both parties' submissions on this issue, evidence on record and the law. At the outset, I must point that, this court is alive to the fact that in reaching its decision concerning the custody of the child, it shall pr marily consider the best interest of the child and welfare of the child as provided under S. 125 Law of Marriage Act and S. 37(4) of the Law of the child Act. That the principle of the best interest of the child is reflected in section 4 (2) of the Act which states that: " The best interests of a child shall be a primary consideration in all actions concerning children whether undertaken by public or private social welfare institution, courts or administrative bodies"(Emphasis added). Section 37 of the said Act provides on who has a right to apply for custody. It reads as follows: "(1) a parent, guardian or a relative who is caring for a child may apply to a court for custody of the child (2) The court may; in the same proceedings for the declaration of parentage/grant custody of the child to an Applicant on such conditions as it deems fit. (3) The court may; at any time/ revoke the grant of custody to one person and grant the custody to another, approved residential home or an institution/ as it may deem necessary. (4) In reaching its decision under subsection (2) or (33) the court shall primarily consider the best interests of the child" However, what is the best interest of the child is not defined, as the relevant statute is silent and so also are the Regional and International Instruments on the Rights of the Child which have been ratified by Tanzania. This observation was made by this court in the case of Habby Longo V. Dotto Kifizi, Civil Appeal No. 67 of 2021, (HC- Mwanza, M, Mnyukwa, J.), whereby the court had this to say: - "it is neither the United Nation Convention on the Rights of the Child nor the African Charter on the Rights and Welfare of the Child as well as the Law of the Child Act Cap 13 R.E 2019, which defined the phrase best interests of the child. It is my understanding that the term means and includes all what is to be best suited to a child in a particular circumstance in terms of services and orders that will ensure the child survival, development and upbringing physically, psychologically, emotionally and spiritually." It is undisputed that the relocation of the mother can affect the surroundings which are familiar to the child but it is not always so. The concept of the best interest of the child has to be looked at in a broader way than just relocation alone since some relocations could be for the best interest of the child unless there is contrary evidence adduced to that effect. Based on the definition of the best interest of the child and 13 considering the circumstances in the case at hand, it will be for the best interest the child to stay with the mother due to the following reasons: - First, the age of the child, the law is very clear that a child under the age at 7 years shall be placed under the care of the mother, unless there are very special circumstances that hinder this. Section 37 of the Law of the Child Act, must be read with section 26(2) of the same Act which reads: "There shall be a rebuttable presumption that it is in the best interest of a child below the age of seven years to be with his mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of the child by changes of custody": (Emphasis added) Section 125(3) of the Law of Marriage Act, cap 29 R.E. 2019 has similar provisions. It reads: " There shall be a rebuttable presumption that it is fur the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of the child by changes of custody." Section 39(1) and (2) of the Law of the Child Act provides as follows: (1) The court shall consider the best interest of the child and the importance of a child being with his mother when making an order for custody or access. (2) Subject to subsection (1), the court shall also consider­ ed) The rights of the child under section 26; (b) The age and sex of the child, It is undisputed that the child is under 7 years, refer to Annexure Sarah 5 provided in the trial court by the Appellant, that is the birth Certificate of the child which indicates that the birth date of the child is on 20th October 2018, therefore, to date the child is of 6yrs old hence the child is below 7yrs. The fact that the child is attending school at Aghakhan Primary School does not outweigh the factor that the child is of tender age and has to be with his mother in line with the best interest principle. Further, reviewing the trial court record, there is no evidence adduced to prove that the school in which the child is registered and enrolled by Appellant only enroll Christian students. Hence, I find this reason to be baseless and lame. Furthermore, the Respondent claims that the Appellant's changing of the child's name by removing the Respondent's name which was replaced by the Appellant's father's name varied custody to be awarded to the Respondent. While I agree that changing the child's father' name without his consent can be a ground for varying custody if proved, however, I have not seen any evidence adduced by the Respondent to prove this allegation. The Respondent in his affidavit stated that the Appellant attempted to change the name of the child but he did not adduce evidence that she successfully changed the father's name of the child. According to the Law of Evidence Act under section 110(1) and (2), it is clearly established that he who alleges must prove, it was therefore the duty of the Responcent to prove his assertion. With regard to the issue that the Appellant moved the child from one; place to another without consultations from Dar es salaam to Lushoto, I do agree with the trial Magistrate that consultation is very important as orde'ed by the court but it does not mean obtaining approval or permission as such and that still the best interest of the child must always be prioritized. It is on record that the Appellant informed the Respondent about the issue or rather kept him on the picture. The question that has to be lookec at by the court is how has the relocation affected the child or the welfare of the child. This court will not just look at the wishes or feelings of the parents of just being with the child. While I agree with the Respondent on the assertions related to filing an application for contempt of court order when it comes to the best interest of the child, I would still agree also with Mr. Mwakibolwa's submissions that relocation alone cannot be a ground for varying the custody order in a situation where the Respondent was rotified via email about reallocation of the Appellant to Lushoto as her new work station and also the enrollment of the child to another school in order to allow the Respondent to exercise his right to access his child and the right to visitation. The Respondent acknowledges in his submissions that he saw the notification. It is further stated by the law that a person who is granted the custody of the child is permitted to take day to day decisions about the child and decide where the child shall reside and where the child shall be educated as provided under regulation 75 of Law of the child (Juvenile Court Procedure). The Appellant, was thus within the ambit of the power given by the law. The court has also considered the fact that reloration could also happen not as a matter of choice but due to work opportunities as in this case. While I agree with the trial court that consultations between parties concerning the welfare of the child are importart and should be done whenever the need arises, but they should not alsc be a stumbling block. The welfare of the child and his best interest should be given a priority. Indeed, as submitted by the Appellant, women/mothers should be allowed to strive to enhance their lives and those of their children without necessarily being constrained by the consent of their former husbands as long as the best interest of the children under their custody has been well considered and that there is no evidence of prejudice or violations of the rights of the children in a given situation. Regarding the issue of the capacity to maintain the child, I agree with the Appellant that, the issue of capacity to maintain the child has to be proved properly by proving the positive and not the negative considering the fact that the Applicant is the one who made an application in court. This is also the essence of section 110 of the Evidence Act, which the Respondent failed to uphold its standard. In this regard, I don't also agree with the T mere assertion by the learned counsel for the Respondent that the capacity of the Respondent to maintain the child should be measured on his capacity in raising the child not material things. I hold that the capacity to raise the child must be proved for court to reach its just decision. Based on what has been submitted above, I find that the Appellant is entitled to be given back the custody of the child for the best interest of the child based on the age of the child as analyzed above. Therefore this issue succeeds. In determining the 3rd issue, that is: whether, the framing issues after parties have finished their submissions, denied the Appellant the right to be heard. I should state at the outset that I do agree with Responcent's advocate submissions that the Application being supported by the Affidavit and disputed by the facts contained in the Counter Affidavit, allows the court to normally determine the Application by just determining whether or not the Application has met the necessary conditions imposed b\ the provisions under which the Application is brought. There is no procedure for the court to draw issues as if it is the trial case or Petition in application. The issues raised are just for guiding the court in determining whether the Application is meritorious and based on facts deposed bv the parties and submissions filed in court. As per the records contained in the e-case file, the Juvenile Court, addressed two central issues: i.e. whether there were sufficient reasons for the court to vary tor rescind the custody order and whether the Applicant had the capacity and means to raise the child if he was to be granted with custody of the child. All these issues were addressed by the parties in their submissions hence the right to be heard was not infringed by trial court. In the upshot and based on what has been stated above I order as follows; 1. The appeal is partly allowed and partly dismissed to the extent analysed herein above. 2. The Appellant is hereby granted custody of the child 3. The Respondent as the father of the child has the right to visit and access his child as long as it does not interfere with school programmes/schedules and upon notification being given to the Appellant 4. The child's school long holidays should be shared between parents 5. The circumstances of this case are such that no order for costs should be given. The right of appeal is fully explained. It is so ordered. DATED at TEMEKE this 29th day of November, 2024. S.D MWAIPOPO JUDGE 29/11/2024