SCOLASTICA MURRAY 222 Edited J kamuzora

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

AT BABATI JUVENILE CIVIL APPEAL NO. 18689 OF 2024 (Originating from Juvenile Court of Babati in Civil Application No. 5827 of 2024) SCOLASTICA MICHAEL MURRAY................................................ APPELLANT

VERSUS FRANCIS PIUS SULLE............................................................. RESPONDENT

JUDGMENT 19th November & 13th December 2024 D. C. KAMUZORA, J. The appellant filed an application for maintenance before the juvenile court of Manyara at Babati seeking for payment of TZS 1,000,000/= per month as maintenance for five issues fathered by the respondent. It is on record that, the matter before the trial court proceeded ex-parte against the respondent. When addressing the trial court, the appellant who initially prayed for payment of TZS 1,000,000/= changed her mind and reduced the amount to TZS 500,000/= after realizing that the respondent was being paid a sum of TZS 1,150,000/- per month. Page 1 of 8 After hearing the matter, the learned trial magistrate awarded the appellant the sum of TZS 300,000/= as maintenance and ordered the money to be deposited in the appellant's bank account not later than 5th every month. The appellant was displeased with the trial court's decision and preferred the present appeal with three grounds of appeal which are reduced into two grounds as follows; 1. That, the trial court erred in law for awarding a sum of TZS 300,000/= as maintenance while the application was not contested by the respondent.

2. That, the trial court did not comply with Rule 84(2) of the Juvenile Court Rules, GN No. 182 of 2016. When the appeal was called for hearing, both parties appeared in person, unrepresented. In her submission in support of appeal, the appellant submitted generally that, she was not satisfied with the trial court's decision for it considered only two children who are in standard five but there is other three children who are still schooling. She argued that the amount of TZS 300,000/= awarded by the trial court is not enough to cater for the children's needs. She therefore urged this court to vary the trial court's decision and order the respondent to provide for TZS 500,000/= for children's maintenance. She added that, the respondent is an employee working as land surveyor with Ministry of Land stationed at Mbulu district. Page 2 of 8 In reply, the respondent submitted that he was taking care of his family and sometimes back, he took a loan and started projects which were under control and supervision of the appellant. That, the dispute arose when he was transferred to another station and the appellant caused the projects to collapse. He maintained that he is still taking care of his family but currently he is being paid TZS 350,000/= as take home after all the deductions thus, he cannot pay TZS 500,000/= claimed by the appellant or even TZS 300,000/- awarded by the trial

court. He argued that, he can only afford to TZS 100,000/= per month. In rejoinder, the appellant denied being in charge of any family projects. She added that, the respondent has all along refused to pay maintenance and it is until when the courts order was issued, the respondent was able to pay school fees in 2022 only. She added that, by 2019 she saw the respondent's letter for promotion and his salary increased to TZS. 1,159,000/=. Having gone through the parties' rival submissions and the record of the trial court, the two grounds of appeal are interrelated and they rise one issue on whether the trial court correctly assessed the amount payable as maintenance. Maintenance is governed by the law; the Law of Child Act [Cap 13 R.E 2019] (the Act) and the Juvenile Court Rules, GN No. 182 of 2016 Page 3 of 8 (the Rules). Section 44 of the Act and rule 84 of the Rules and provides for matters to be considered by the court when assessing maintenance for children. Rule 84 (1) requires the court before making an order for maintenance take into account the matters contained in section 44 of the Act and the income or wealth of both parents or of any person legally liable to maintain the child. Rule 84(2) of the Rules provides for what to be taken into consideration. It reads: - " The court shall, in considering the wealth or income of a parent or a person legally liable to maintain

the child, take into account- (a) wages, salaries, commission, bonuses and allowances; (b) service provided; (c) business activities; (d) pension or severance benefits; (e) dividends and interests; (f) returns from real or personal property such as rents, sale of produce, farm products, livestock, poultry, dairy product and other similar items; and (g) needs of other dependents." From the above provision, the assessment for maintenance payable must consider the income of the person to whom an order for maintenance is to be made. The above rule cannot be read in isolation with the section 44 of the Law of Child Act [Cap 13 R.E 2019], (hereinafter referred to as the Act). It reads that; court shall consider the following matters when making a maintenance order- (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child; (b) any Page 4 of 8 impairment of the earning capacity of the person with a duty to maintain the child; (c) the financial responsibility of the person with respect to the maintenance of other children; (d) the cost of living in the area where the child is resident; and (e) the rights of the child under this Act." From the above quoted provisions several factors have to be considered by the court before issuing maintenance order. They include; income and wealth of both parents, any impairment of the

earning capacity, other financial responsibilities, costs of living and rights of the child under the law. In his ruling, the trial magistrate found that it was impossible to assess the amount payable as maintenance since the application was heard ex-parte against the respondent and without the report from social welfare officer but still opted to issue an order for maintenance. The reason for doing so was that, the juvenile court was bound to quickly determine matter and he was considering the welfare of the children. In considering other children attained the majority age, the trial magistrate found the amount of TZS 300,000/= as reasonable maintenance of two children who were under the age of 18 years. He also ordered the respondent to register the two children for health insurance cards. From the above reasoning of the trial court, none of the conditions set under Rule 84(2) of the Rules or section 44 of the Act were discussed Page 5 of 8 and considered by the trial magistrate before awarding the amount of TZS 300,000/- as maintenance. I also noted that the trial magistrate admitted not involving the social welfare officer and no sound reason was advanced. Section 45 of the Act and Rule 85 (1) of the Rules gives option for the court to involve the social welfare officer in assessing the ability of the parents in paying maintenance. Section 45 read: - "45 (1) A court may

order a social welfare officer to prepare a social inquiry report before consideration of an application to make an order for maintenance custody or access. (2) The court shall, in making such order, consider the social inquiry report prepared by the social welfare officer." Rule 85 (1) read: - "The court may, before granting an order for maintenance in accordance with section 45 of the Act, request a social welfare officer to prepare a social enquiry report for the purposes of— (a)assessing the ability of parents to provide for the maintenance and care of the child; and(b)ascertaining the accuracy of any statements relating to income and outgoings and liabilities. Although the above provisions were not couched in mandatory terms, it was intended for the situation like the preset one where the court was in dilemma on the parties' income for it to make appropriate maintenance order. Knowing that the respondent was absent, the trial magistrate ought to have invoked the above provisions by inquiring the Page 6 of 8 welfare officer to conduct a social inquiry and file a report which could have assisted the court in its determination. The report of the social welfare officer would have enlightened the court on the appropriate amount for maintenance if considered in line with other conditions set under the law. Thus, the decision of the trial court in awarding the amount of TZS.

300,000 as maintenance, have no basis. In her submission, the appellant claimed that since the application was not contested, the trial court was bound to award TZS 500,000/= claimed by the appellant. She therefore urged this court to vary the amount of TZS 300,000 awarded by the trial court to TZS, 500,000/= claimed by the appellant. I do not agree with the appellant's contention that the application was not contested. The trial court noted in its ruling that the respondent filed a counter affidavit contesting the application save that, he did not enter appearance and the application was heard ex- parte. Being heard ex-parte does not mean that the application was uncontested. In his submission before this court, the respondent did not deny being a civil servant but claimed that from his monthly earnings, he cannot afford either the amount of TZS. 300,000/= as ordered by the trial court or TZS 500,000/= claimed by the appellant. Having considered the overall circumstance surrounding this matter, I find that the trial court erred in awarding maintenance without Page 7 of 8 considering the conditions set under the law. Had the trial magistrate involved the social welfare officer, he would to have received necessary information which could have assisted him in assessing appropriate amount for maintenance. The appeal is therefore partly allowed to the extent shown above. The decision of the trial court is quashed and set aside. The matter is remitted to the juvenile court for the magistrate to receive additional evidence on parents' abilities and involve the social welfare officer in assessing the appropriate amount for maintenance. In the circumstance, I will not make an order as to costs. DATED at BABATI this 13th day of December, 2024. Page 8 of 8