OC saul Ngonyani MWAI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 25040 OF 2024 /Originating from Civil Application No. 2570 of 2024 of the Juvenile Court of Dar es salaam dated 30th April, 2024 by Hon. V. Mwaikambo -SRM) SAUL HENRY AMON..................................................APPELLANT VERSUS RESTITLITA VIRGI LIA NGONYANI.......................... RESPONDENT JUDGEMENT Date of last order: 23/1/2025 Date of Judgement: 30/01/2025 S.D. MWAIPOPO J This appeal originates from the decision of the Juvenile Court of Dar es salaam, at One Stop Judicial Centre, Temeke (Hon Mwaikambo SRM), in Civil Application no. 2570 of 2024, delivered on 30th April 2024, granting the order of the custody of a child to the Respondent herein. The background of this case is that the Appellant and the Respondent herein, are both biological parents of the girl child named T. H. S. A, who was born on 15th January, 2010, in the United States of America. The child is now 15 years old and at the time of the filing of the Application before the Juvenile Court, she was 14 years of age. According to the records available, a dispute over the custody of the said child arose, prompting the Respondent to file an Application for custody in the Juvenile Court of Dar es salaam at Temeke One Stop Judicial Centre. In her Application, the Respondent claimed that the father of the child intended to take or transfer the child to a boarding school, despite the fact that the said child is suffering from a blood disorder disease. She argued that the boarding school which the Appellant intends to take the child is not a safe environment for her, as the child requires close supervision. Additionally, the Appellant, who is a businessman, travels frequently and may not be able to provide the necessary care and supervision. In response to the Application, the Appellant filed a reply to the Application along with a cross-application. In his reply, the Respondent stated that the child is in good health and is currently living with her mother in a house that he had provided for her over the past 10 years. In his cross­ application, the Appellant also sought custody of the child. He claimed that the Respondent is married to a man in the United States of America and frequently travels there to be with him, leaving the child under his care. The Appellant also asserted that the Respondent has no stable income to meet the child's basic needs, as she is neither employed nor self-employed hence he is the primary provider for the child's needs. Following the determination of the Application, the Juvenile Court concluded the case by granting custody to the Respondent and granting the Appellant with visitation rights, including the right to have the child stay with them during holidays and weekends. The court also ordered the Appellant to provide accommodation, food, and other expenses for the child. The Appellant, who is the father of the child, being aggrieved by the decision of the Juvenile court at One stop Judicial Centre filed an appeal before this court armed with four grounds as follows. (i) That the Honorable Trial Magistrate grossly erred in law and fact by failing to determine and make decision on the Appellant's cross petition lodged in the Juvenile Court in terms of Rule 65(8) of the Law of the Child (Juvenile Court Procedure) Rules G.N. No. 182 of 2016. (ii) That the Honorable Trial Magistrate grossly erred in law and fact when she composed a ruling based on extraneous matters not on record to wit; a) That the child was born in the United States of America. b)Two motor vehicles were bought for nursing the child. c) No Social Investigation Report was exhibited nor read over in court as referred by the Trial Magistrate in her ruling thus deprived the Appellant of his right to hear evidence of the Social Welfare Officer. d)It is not on record who between the two Social Welfare Officers conducted the said Social Investigation Report and would have made herself available in court. e) The said Social Investigation Report never considered the distance between child's residence and the school which are not close at all. f) The court findings are at variance with the record of proceedings. (iii) That the Honorable Trial Magistrate grossly erred in law and fact when she gave custody order to the Respondent and at the same time ordered the Appellant to provide accommodation to the Respondent who is not the child at issue occasioning injustice as the Appellant is ordered to provide accommodation without custody order. (iv) That the Honorable Trial Magistrate grossly erred in law and fact when she failed to give custody order to the Appellant who on the available evidence on record saves the best interest of the child. Thus, the Appellant prayed for the Ruling and order of the lower court to be set aside, and the matter to be heard in accordance with the law or as the court may otherwise direct, with costs. The hearing of this Appeal proceeded by way of written submissions pursuant to the timetable drawn by the court. At the commencement of hearing, the Appellant was represented by learned advocate Bernadette Fabian while the Respondent enjoyed the services of the learned advocate John Jimmy Kisamo. Arguing in support of the 1st ground of appeal, Miss Bernadette Fabian submitted that in the reply to the petition before the trial court, it is undisputed that the Appellant filed a cross-petition seeking full custody of the child, T H. S. A, as he is the primary provider for the child's needs. However, the trial court did not address this cross-Application or consider that the Appellant is providing full maintenance for the child. The Appellant asserted that the trial magistrate's judgment lacked proper reasoning and failed to address the cross-application. Therefore, the Appellant prays for this court to allow the appeal and make its decision on the cross­ application. On the 2nd ground of appeal, Miss Bernadette Fabian argued that the trial court made several legal mistakes in its ruling. Firstly, the court based its decision on information that was not part of the official record, such as the place where the child was born (stating that it was in the USA) and the details about two vehicles, which were not discussed during the hearing. Additionally, the trial court referred to the Social Welfare Report that was never presented or read over to the parties during the trial, as required by law. The Report also contained incorrect information, such as the distance between the child's home and school, which the court did not properly consider. On the 3rd ground of appeal, the Appellant's advocate submitted that the trial magistrate made a serious legal mistake when she granted custody of the child to the Respondent (the mother) but also ordered the Appellant (the other parent) to provide accommodation for the child. The trial court's decision, found on page 9 of the ruling, states that; the Appellant has the right to visit and stay with the child during weekends and school holidays, and that he is responsible for the child's education and accommodation expenses, just as he has been doing before. The Appellant argued that this is unfair because, although the Respondent has been given custody, the Appellant is still ordered to cover the costs of accommodation, even though the Respondent cannot provide for it. The Appellant believes that this is inconsistent and unjust, as he is being denied custody of the child, yet he is required to support the Respondent who is living in a house provided by the Appellant. On the 4th ground of appeal, the Appellant argued that the trial magistrate made a legal and factual error by not granting him custody of the child, despite the fact that he is the primary provider for the child's needs (food, shelter, clothing, education, and medical services). The Appellant is the child's biological father and is providing all the necessary care, while the Respondent depends on the Appellant for these basic needs. The Appellant referred the court to the case of Sajjad Ibrahim Dhamamsi & Ally Jawad Gule Mbasae vs, Shabin Gulamabas Martha emphasizing the importance of considering the question as to who can provide for the child before deciding the custody battle. Similarly, he referred the court to the case of Nacky Ester Nyange vs, Mihayo Marijani Wilmore, Civil Appeal No. 169 of 2019 the court emphasized that the child's best interest, including the ability to provide for the child's needs, must be the primary consideration when granting custody. The Appellant contended that the trial magistrate's decision to grant custody to the Respondent, who is not providing for the child, contradicts the best interest principle and has resulted to unfairness. The Appellant requests that the trial magistrate's decision be reversed, as he is the rightful custodian of the child, and the appeal should be allowed. Submitting in rebuttal the learned counsel for the Respondent Mr. John Kisamo stated as follows: - Regarding the 1st ground of appeal, Mr. Kisamo submitted that the Appellant's reference to a "cross-petition" is incorrect, as the Law of the Child (Juvenile Court Procedure) Rules do not provide for it. However, the rules do allow for a "Cross-Application" which can be filed in response to an Application, although there is no specific procedure to determine a Cross- Application. He argued that, in this case, the Appellant filed a Cross­ Application requesting for the custody of the child, which the court addressed by considering both parties' requests. Thus, the Magistrate gave her decision after evaluating the best interest of the child, in line with the law, and did not make any procedural errors. The ruling also confirms that the court carefully considered both parties' requests for custody, following the informal nature of Juvenile Court's proceedings. With regard to the Appellant's 2nd ground of appeal, Mr. Kisamo responded by addressing several points as follows: On the issue of motor vehicles; the learned counsel contended that; the Appellant claimed that two vehicles which were purchased for the child's care were not reflected in the proceedings. However, he argued that this fact is mentioned in the court records and was not used to decide the issue of custody, so the Appellant was not affected. As for the Social Inquiry Report; the Appellant argued that the court did not present the Social Investigation Report or allow cross-examination of the Social Welfare Officer. However, the learned counsel argued that, the law allows the court to request for such a report to be prepared, and the Appellant never asked for it to be read in court or for the officer to testify. Therefore, this issue is the Appellant's own failure to exercise his right. Regarding the Social Welfare Officer's Identity; the Appellant complained that it was unclear as to who exactly prepared the report, but the learned counsel for the Respondent submitted that, the law does not require the officer's identity to be disclosed since the Appellant did not request for the Report or the officer's testimony, he cited section 45 of Law of the Child Act. As for the distance between the child's home and school; the learned counsel for the Respondent contended that the Appellant claimed that the Social Inquiry Report didn't consider the distance between the child's home and school, but failed to provide any evidence of this. In his submissions, the Respondent argued that the child has been studying at HOPAC for ten years and lives near the school with the mother. The Appellant also lives nearby, so this is not an issue that would have affected the custody decision. Overall, the Respondent argued that these claims lack merit and that the Appellant has failed to follow the laid down legal procedures or raise these issues properly in court. Responding to the 3rd and 4th grounds of Appeal, Mr. Kisamo consolidated those two grounds of appeal when referring to the Appellant's submissions that the trial Magistrate made two major mistakes in the custody ruling as follows: Firstly, the issue of custody and accommodation order conflict; the learned counsel for the Respondent contended that the Appellant claimed that the Magistrate wrongly gave the custody of the child to the Respondent (mother) but also ordered the Appellant to provide accommodation for the Respondent, even though the Respondent is not the child in question. This, according to the Appellant, creates an unjust situation because he is being asked to provide accommodation without having custody. Secondly, failure to grant custody to the Appellant; the learned counsel submitted that the Appellant believes that the Magistrate made an error by not granting custody to him, despite evidence showing that he is better suited to serve the child's best interests. The learned counsel further submitted that the best interest of the child is the main factor in deciding custody, as outlined by the Law of the Child Act. He contended that, courts are guided by various factors like the child's age, health, the views of the child, and the ability of the parents to provide care. In this case, the child expressed her preference to stay with the mother due to her health needs, and the Magistrate considered the mother's ability to provide for a stable environment. He asserted that the Appellant, who works as a businessman and travels often, is seen as unable to provide for the daily care and attention that the child needs, especially because the child has a health condition that requires close monitoring. The mother has been the primary caregiver since the child's birth. The Appellant's argument that he is the primary financial provider is countered by the fact that the mother also provides for essential needs like food, clothing, and medical care. The Appellant's claims that the mother has no income or she is jobless, is unsupported by evidence. Lastly, he argued that the Magistrate's ruling is consistent with previous cases where one parent may be given custody while the other is assigned responsibilities like maintenance and accommodation. Therefore, the Appellant's claims that the trial court's decision was unfair or contradictory are not supported by the law or evidence. In support on the issue of custody being granted to the Respondent based on the best interest of the child, the learned counsel cited the following cases; Glory Thobias Salema vs Allan Philemon Mbaga (Civil Appeal No.46 of 2019), Neema Alfraeli Nnko vs Frank Charles Msaki, Civil Appeal No. 54 of 2022, [2023] TZHC 19325, Dunia Yusufu Dunia vs. Subira Doreen Mosah (Matrimonial Cause No. 03 of 2022) [2023] TZHC 21956, Richard Rodrick Moye vs. Diana Constantine Kisoka (Civil Appeal 134 of 2020) TZHC 14914, Ally Jawad Gule Mbasae vs. Shabiri Gulamabas Matha, Celestine Kilala and Halima Yusuph vs. Restituta Celestine Kilala (1980) TLR 76 In rejoinder, the Appellant reiterated his submissions in chief and also specifically responded to the issues raised as follows; With regard to the cross petition, he submitted that, the cross-petition issue was a clerical error that doesn't affect the case, and emphasized that the trial court failed to address the cross-application. Regarding the issue of custody, the Respondent maintained that the trial court considered the best interest of the child, however the Appellant argued that, as the biological father and sole provider, he should have been granted custody. The Appellant also disputed the relevance of cases cited by the Respondent, as they involve an infant, whereas his child is 14 years old. The Appellant sought for the appeal to be allowed Having digested the rival submissions of the parties, the broad question to be resolved is whether this appeal has merit. In determining this appeal, I am alive to the fact that as the first appellate court, this court can evaluate evidence and record of the trial court in order to arrive at a just decision. That he who asserts a claim bears the burden of proof as stated under section 110 of the Evidence Act Cap 6 RE 2019. That the law only assists the vigilant and not the indolent and lastly in matters concerning the child, the best interest of the child shall be the primary consideration. I will now just go straight to the grounds of appeal raised as follows; With regard to the first ground of appeal, the Appellant has contended that the trial court failed to address his cross-petition filed in court, regarding the issue of custody. The Respondent in turn has argued that the Law of the Child (Juvenile Court Procedure) Rules do not provide for a cross Petition in the first place but rather cross applications. Similarly, the said Rule do not provide for a specific procedure on how the court should handle cross-applications. The law only allows the Respondent to include a cross-application in their reply to the main application. Rule 65(8) of the Law of the Child (Juvenile Court Procedure) provides as follows; Respondent in his reply to the Application may include a cross application applying for the same or a different order." J Rule 65(9) further states that; The court shall, on a cross application, have similar powers to grant an order in terms of these regulations as it may have to an Applicant The above provisions only grant the Respondent with the right to include a cross-application when replying to the Application for custody, but it does not provide for a procedure for determining the cross-application. Further, it empowers the court to grant an order in terms of the regulations as it may have to an applicant. However, the regulations are silent on the specific procedure to be adopted and as suggested by the learned counsel for the Respondent, procedures in the Juvenile Court are largely informal. Since the law is silent on the specific procedure to be adopted, it therefore depends on the procedure adopted by the Magistrate in determining the cross application. However, the decision of the court must address all the issues raised by the parties. I have observed from the records of the trial court that the Respondent herein filed an Application for the grant of custody of her daughter. The Appellant in his Reply to the Application disputed the contents of the Application and filed a Cross Application praying for the custody as well. Having reviewed the trial court decision, I have observed that the trial Magistrate, in composing her judgment, considered and combined all the arguments presented by both parties regarding the issue of custody based on the best interest of child principle. Despite the Appellant's counsel arguing that the judgment does not address the cross-application arguments, the learned counsel did not specify which aspects of the cross-application were not considered in the judgment. I agree with Mr. Kisamo that the trial magistrate, in her ruling, considered the prayers of both parties. The learned counsel quoted some parts of the ruling to support his contention as follows;. On page 1, the first paragraph of the ruling, Hon. V. Mwaikambo, states as follows: "In this application, I have been invited to determine a dispute over custody of a giri child currently aged 14 years. What can be divulged from the pleadings and submission is that the parties have been in a stalled wrangle over a custody of the giri child" At page 5 paragraph 4 of the ruling it is stated as follows: "In the present application, the Applicant is the biological mother of the child and the Respondent is the biological father of the child, as per section 37 of the Act, both parties are eligible to be granted custody. However, since they are contesting, I moved to consider the other factors as to who should be granted custody". Having said that, I have found that the 1st ground of appeal has no merit since the issue of custody stated in the cross application was determined in the course of hearing of the Application. Further, the main issue in the cross application was custody of the child hence the same which was determined by the court. I further agree with the learned counsel for the Respondent that the Appellant had not raised any issue which was not determined by the court in his cross application. Therefore, there was no any injustice occasioned to the Appellant by the trial court not granting specific orders on the cross application. In determining the 2nd issue, the Appellant complained that the Honorable Trial Magistrate grossly erred in law and in fact when she composed her ruling based on extraneous matters not on record to wit; that the child was born in the United States of America, that two motor vehicles were bought for nursing the child, that no Social Investigation Report was exhibited nor read over in court as referred by the Trial Magistrate in her ruling thus depriving the Appellant of his right to hear the evidence of the Social Welfare Officer, that It is not on record who between the two Social Welfare Officers conducted the said Social Inquiry and would have been made herself available in court, further, the said Social Investigation Report never considered the distance between child's residence and the school which are not close at all and that the court's findings are at variance with the record of proceedings. With regard to the issue that the child was born in the United States of America, the Appellant challenged the inclusion of the above fact in the ruling, alleging that the same is an extraneous matter as it is not reflected in the proceedings or application. The Respondent disputed the said submissions stating that it was part of the record. With due respect to the learned counsel for the Appellant, this allegation is incorrect, as this fact is clearly reflected in the Application filed by the Respondent in "Annexure A" and is also indicated in the first paragraph of the cross-application filed by the Appellant. I have perused the records and observed that in her Application (para 2) before the Juvenile court, the Respondent herein who was the Applicant before the Juvenile stated as follows with regard to this issue; That I am the mother of T. H. S. A who was born on 15th of January 2010, now she is 14 years old. The Respondent, Saul Henry Amon is the father of the said child and the Respondent in this Application. I hereby attach the child's birthdate certificate for court's reference and crave this court's leave for it to form part of this Application as Annex A The Respondent in his cross-application para 2 also stated as follows: That soon after the birth of my child T. H. S. A, on 15th day of January, 2010, who was born in USA, I bought a house in Tanzania at Mikocheni which is close to my residence and allowed the Applicant to reside in that house for taking care of my child I have observed from the quotations above that, both parties stated that fact in their pleadings hence the place of birth of the child is part of the lower court records. I refer to Annex A which is a certificate of live birth issued by the State of Maryland Department of Health and Mental Hygiene Division of Vital records which indicates that the said child was born in Montgomery, USA. This fact is also contained in the cross-application. Therefore, the assertion by the Appellant that this is an extraneous matter is not true. Further, as submitted by the Respondent, this fact was not used in determining the application, therefore the Appellant's submissions on this point are baseless. With regard to the issue of the two motor vehicles which were bought for nursing the child, that is being extraneous matters in the ruling, I agree with the submissions of the Respondent that having gone through the record of the lower court, the issue of the motor vehicles bought by the Appellant is reflected in the trial court proceedings at page five (5) when the Appellant herein was submitting in response to the submissions in chief before the Juvenile court, his learned counsel is recorded to have stated as follows; Your honor the respondent is a good father to his daughter that is why he built a house and bought a motor vehicle for the child to be raised to a good standard..... Therefore, it is not true that the matter was not in lower court records. In fact it was stated by the Appellant. However, as submitted by the Respondent, this fact was also not considered in determining the custody of the girl child; thus, the Appellant was not again prejudiced in anyway. I now proceed to determine issues related to the Social Inquiry Report and will focus on the law as it was at the time of fling the Application or prior to the amendments of the las effected in 2024. The Appellant in his submissions contended as follows; one, no Social Investigation Report was exhibited nor read over in court as referred by the Trial Magistrate in her ruling therefore the Appellant was deprived of his right to hear evidence of the Social Welfare Officer. Two, it is not on record who between the two Social Welfare Officers conducted the said Social Investigation Report and would have made herself available in court and lastly, the said Social Investigation Report never considered the distance between child's residence and the school which are not close at all. The requirement for Social Inquiry Report is provided under section 45 of the Law of the Child Act and Rule 72 of the Law of the child (Juvenile Court Procedure) Rules. S. 45 (1) Law of the child Act states that:- "/I 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 the 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 enquiry report." Regulation 72 proceeds to provide for other procedures relating to the social inquiry report. Therefore, under these provisions, the following principles can be obtained; Firstly, in applications for custody, the court is empowered to request for the commission of a social investigation report whose primary aim is to assist the court to determine the best interest of the child, therefore, the social welfare inquiry report is not mandatory or at least was not mandatory then. As adumbrated herein above, I am aware that there has been a recent amendment to the above provision, specifically changing the word 'may' to 'shall,' making the social inquiry report mandatory. However, this change does not apply in this case, as it was filed before the coming into force of The Child Protection Laws (Miscellaneous Amendment) Act, 2024 No. 10 of 11th October, 2024. Secondly, in conducting the said investigation and preparing the report, the social welfare officer shall obtain the views of the parties to the proceedings, and the independent views of the child (if he is of the age capable of forming an independent opinion) taken separately or in the presence of the parents or other relevant persons. Thirdly, in conducting the investigation, the social welfare officer shall assess the best interest of the child and provide recommendations. Fourthly, when the investigation is commissioned, conducted and a report thereto drawn and filed, it shall be mandatory for the court to consider the recommendations in its finding. Any deviation from the recommendation should be accompanied by reasons. Fifthly, the social welfare officer who prepared the social inquiry report shall make himself available to the court to give evidence if the court or a party to the proceedings so request. (Regulation 72(5) After reviewing the trial court proceedings on April 4, 2024, the court ordered for the Social Inquiry Report to be submitted by April 30, 2024, on the same day the ruling was issued. I quote: - ORDER 1. S.I.Ron 30/04/2024 2. Ruling on 30/04/2024 When this order was being made all the parties were present in court and had finished the hearing of the Application. I have also perused the proceedings and observed that on the 30th of April 2024 all parties were in court or at least represented, including the social welfare officer who was present in court. However, there is nowhere in the proceedings the Appellant is recorded to have requested for the social welfare report to be 20 made available to him or to be read over or for the social welfare who prepared the report to be made available for cross-examination as per the legal requirement stated under Rule 72(5) of the Juvenile Court Procedure Rules made under the Law of the Child Act and got denied. Thus, it is the Appellant himself who failed to exercise his right as required by law. The principle of the law is very clear that the law does not assist those who slumber on their rights. The law only assists the vigilant and not the indolent.In latin vigi/antibus non dormientibus aequitas subvenit. Therefore, these allegations of the Report not being presented for cross examination are baseless for lack of legal justification. It should also be understood that the Social Inquiry is meant to assist the court after all parties have been heard by the Social Inquiry Officer. It is not meant to prolong matters in court and jeopardize the rights of the children. After all the Respondent has not complained that he was not interrogated or interviewed by the social welfare officer. Further, that the ruling of the juvenile court has emphasized that it considered the views contained in the report. It is my firm position that the Hon. Magistrate, after assessing all the submissions and evidence including the Social Inquiry Report decided to grant custody of the child to the Respondent. The Social Inquiry Report was not the only determinant factor. The information contained in the submissions of the parties and pleadings could still have made the court to determine the issue of custody. As regards the issue raised on the lack of record as to who between the two Social Welfare Officers conducted the said Social Investigation Report and would have made herself available in the court; I agree with the Respondent's submissions that the law under section 45 (1) and (2) of the Law of the Child Act Cap 13 and Rule 72 of the Law of the Child (Juvenile Court Procedure) Rules, 2016, do not provide for the requirement of the court to disclose the Social Investigation Officer who prepared the Social Inquiry Report but as stated herein above the Appellant did not request for the Social Inquiry Report to be read over in court or the Social Inquiry Officer to be placed for cross examination as such, therefore, he cannot at this juncture be allowed to put a blame on the trial court instead he should blame himself for slumbering on his right. With regard to the contention that the said Social Inquiry Report never considered the distance between child's residence and the school; following my perusal of the records, I agree with the submissions of the Respondent that the Appellant's contention is not true. Apart from that, the Appellant has not mentioned the exact distance from the current accommodation (Mikocheni) to the school which the child is studying in order to cement her point on the issue of the long distance he is claiming about. I have further perused the lower court record and observed that the Appellant did not raise this issue neither in his cross application nor in his counter affidavit and submissions at the Juvenile Court, thus the same is an afterthought. There is ample evidence from the lower court record that the child has been studying at HOPAC for ten (10) years and has been living with her mother at Mikocheni. The Appellant has not mentioned any problem the child has faced, which could have made the social welfare officer and the court to decide otherwise. It is also worth noting as the Respondent has noted that even the Appellant himself is residing in Mikocheni, hence, the issue of the distance does not give him an added advantage over the Respondent, as both of them are residing in Mikocheni, which is not far from HOPAC School. Therefore, this ground is also bound to fail. I now proceed to determine ground number three (3) and four (4) of the appeal simultaneously. The Appellant in his appeal has contended that; the Honourable Trial Magistrate grossly erred in law and fact when she granted a custody order to the Respondent and at the same time ordered the Appellant to provide accommodation to the Respondent who is not the child at issue, thereby occasioning injustice as the Appellant is ordered to provide accommodation without the custody order and further that the Honourable Trial Magistrate grossly erred in law and fact when she failed to give a custody order to the Appellant who on the available evidence on record serves the best interest of the child. In determining the issue of custody this court will be guided by the principle of the best interest of the child as provided for under sections 4(2), 39(1) and the guidelines stipulated under Rule 73 of the Law of the Child (Juvenile Court Procedures) Rules. This principle of the best interest of the child is provided under Section 4 (2) and 39 (1) of the Law of the Child Act, Cap. 13. These sections read as follows; Section 4 (2); the best interest of the child shall be a primary consideration in all actions concerning children whether undertaken by public or private social welfare institutions, courts, or administrative bodies. Section 39 (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 This principle has also been emphasized in the case of Dunia Yusufu Dunia vs. Subira Doreen Mosah (Matrimonial Cause No. 03 of 2022) [2023] TZHC 21956, cited by the Respondent, which is to the effect that in issues pertaining to custody: ......... the court has to take into consideration the welfare or best interest of the child. In doing so, therefore, parents or any other person may be given custody". Reverting to the best interest or the welfare principle, I am alive to the fact that while the welfare principle is emphasized in determining issues of custody, the same is not defined under the Law of the Child Act. Neither the United Convention on the Rights of the Child nor the African Charter on the Rights and Welfare of the Child, both ratified by Tanzania, have defined the phrase the ''best interest of the child". It is my understating 24 that the term means and includes what is best suited to a child to ensure his or her survival, development and upbringing physically, psychologically, emotionally and spiritually. The General comment no. 14 on Article 3 of the Convention on the Rights of the Child adopted in 2013 states that; the best interest of the child is a dynamic concept that requires an assessment appropriate to the specific context. For this position see the following cases; Sarah Sharon Kuzilwa vs Abdalla Singano Civil Appeal no 50344/2024 HCT Temeke OSCJ and Habby Longo V Dotto Kifizi, Civil Appeal no. 67 of 2021, HC- Mwanza. In recognition of this fact, the Law of the Child Act has considered various factors to be considered in implementing the welfare principle. Among those factors are mentioned in Section 39 (2) of the Law of Child Act Cap 13 and Rule 73 of the Law of the Child (Juvenile Court Procedure) Rules, 2016 and these factors have been applied by the court in different decisions. The said factors are as follows; a) The rights of the child under section 26 b) The age and sex of the child c) That is preferable for a child to be with his parents except if his rights are persistently being abused by his parents d)The views of the child, if the views have been independently given e) That it is desirable to keep siblings together f) The need for continuity in the care and control of the child; and g) Any other matter that the court may consider relevant These factors were also restated in the case of Neema Alfraeli Nnko vs Frank Charles Msaki, (supra). Coming back to the case at hand, I have perused the records and observed that, the Juvenile Court, while deciding on whose custody the girl child should be placed, followed the guidelines stated under the law in furtherance of the welfare principle, I shall discuss the relevant aspects as follows; With regard to the views of the child, the Magistrate at page 6 of the ruling considered the views of the child who opted to be placed in the custody of the Respondent, the mother. The opinion of the child was that she loves both parents, but she likes to remain under the custody of her mother due to her health status and the fact that it is the mother who has devoted time to ensure that she lives comfortably. This position was also taken in the case of Glory Thobias Salema vs Allan Philemon Mbaga (supra) cited by the Respondent where the court emphasized that: Where the views of the child have been given, they must be considered by the court before making an order for custody. Regarding the issue as to whose custody, the child be placed, at page 6 of the ruling the Honourable Magistrate considered the provisions of Section 39 of the Act which put preference of the child to be in the custody of the 26 mother and made a finding that the child needs security that is a living environment which will guarantee safety in life, the kind of environment that ensures the child grows well physically, mentally, psychologically and spiritually. The Hon. Magistrate considered the needs of the child to be happy and continue to enjoy love and affection which will mostly be found from the mother unless otherwise proved or stated. See the case of Sajjad Ibrahim Dhamamsi & Ally Jawad Gule Mbasae vs Shabiri Gulamabas Matha, cited by the Respondent, which affirm this position, which I subscribe too. I have also considered the issue of age and sex of the child as required by the law, and observed that the Juvenile Court Magistrate considered this aspect in her decision. The Law of the Child Act and the Rules made under it, requires the court to consider the age and sex of the child before granting the custody order. In the case of Celestine Kilala and Halima Yusuph vs. Restituta Celestine Kilala (1980) TLR 76, the court stated as follows: "one of the factors to be considered is the age of the child and opinion". From the records contained in the e-case file, the child in dispute is a girl, the child being a female/ girl, it is desirable for the custody to be granted to the Respondent. Further, at the time of hearing of the Application she was at the age 14 years and has been under the custody of the mother since she was born to date thus a need for continuity in the care and control of the child as provided under Section 39 (2)(b) and (d) of the 27 Act, in order to avoid the undesirability of disturbing the life of the child by change of custody as provided for under Section 39 (2)(f) of the Law of Child Act. See the following cases; Neema Alfraeli Nnko vs Frank Charles Msaki (supra) and the case Sarah Sharon Kuzilwa vs Abdalla Singano civil appeal no 176 HCT Temeke OSCJ, this court granted custody to the mother based on the age of the child who was below 7 years. In this regard i have also further observed that on page 7 of the ruling, the Magistrate considered the fact that the child being of a female gender, it was desirable for the custody to be given to the Respondent because her future may be determined by the person nurturing her. Therefore, I don't agree with the submissions of the Appellant that, the trial Magistrate failed to grant him with a custody order while he serves best interest to the child, something which is not true. I agree with the Respondent that, providing accommodation and paying school fees alone do not amount to serving the best interest of the child, as the best interest of the child is far behind financial ability and paying for accommodation and school fees. The case of Nacky Esther Nyange vs. Mihayo Marijani Wilmore (Civil Appeal No. 169 of 2019), which was cited by the Appellant in his submission, does not support his allegation because the case provides for cumulative factors for determination of custody of the child apart from providing accommodation to the child, of which the Appellant has not shown how he has fulfilled those factors. It is therefore, distinguished in this regard. In considering the best interest of the child I have also considered the fact that, the girl child is suffering from a blood disorder and thus needs parental care and close monitoring of her health. In this regard i agree with the Respondent and the trial Magistrate on page 6 of the Ruling that the Appellant is a businessman who travels a lot hence he does not have time to stay with the child the fact which is supported by the views expressed by the girl child that she prefers to remain under the custody of her mother due to her health status and her mother is the one who has devoted time to ensure that she lives comfortably. See the case of Glory Thobias Salema vs Allan Philemon Mbaga {supra) cited by the Respondent. Regarding the issue of the Appellant being the sole provider of the basic needs, I have revisited pleadings and submissions filed by the parties in court and observed that this allegation has not been proven. Both a reply to the chamber application for custody and the cross application contain annexures that show that the Appellant provides accommodation and school fees, however, other basic needs of the child such as food, clothes, and medical bills have remained in the hands of the Respondent. The Appellant's assertions that the Respondent is jobless, has no income, and is married to another man have not been supported by any evidence. The evidence on record (annexure NCA 1 of cross application) shows that the Appellant offers school fees, school uniforms, and accommodation, and other costs such as food, medical bills, and clothing are offered by the mother, who has been staying with the child since she was born to date. However, at another angle, the Appellant, being the father of the child, has a duty to provide for the same; thus, there is no injustice that was committed by the trial Magistrate. See the case ofSajjad Ibrahim Dhamamsi & Ally Jawad Gule Mbasae vs. Shabiri Gulamabas Matha. (Supra) on the duty of the father to maintain his child. This duty of the father is also not diluted or affected when the custody order is granted to the mother. In support of this position see the case of Richard Rodrick Moye vs. Diana Constantine Kisoka (Civil Appeal 134 of 2020) TZHC 14914, at page 14. Therefore, legally the custody of a child can be granted to one parent, but maintenance costs can also be assigned to another parent as correctly argued by the Respondent. Thus, the submission by the counsel for the Appellant that the ruling was conflicting is of no merit. On the strength of the above submissions, I find that all the grounds of appeal have no merit and in the upshot the appeal is hereby dismissed in its entirety. For the sake of clarity, I proceed to issue the following orders; 1. The Appeal is dismissed in its entirety; 2. The Judgement of the Juvenile Court of Dar es salaam at Temeke in Civil Application No. 2570 of 2024 is hereby upheld 3. The custody of the child T. H. S. A is granted to the Respondent. Any changes regarding the welfare of the child shall be communicated to the Appellant, as the biological father, pursuant to the requirements of the law. 4. The Appellant shall continue to provide accommodation, food, education and other expenses to the child as ordered by the Juvenile court. The Respondent shall be responsible for the day to day welfare of the child 5. The Appellant as the biological father of the child is entitled to access and visitation rights including holidays and weekends which shall not interfere with the school programme. 6. No order as to costs, considering the nature of the case and parties. It is so ordered. The right of appeal is fully explained. DATED at TEMEKE this 30th day of January, 2025. S.D MWAIPOPO JUDGE 30/01/2025