EX-PARTE LEONARD REED HARRISON AND KWIGEMA SAMSON GABBA 1996 TLR 198 (HC)

 

EX-PARTE LEONARD REED HARRISON AND KWIGEMA SAMSON GABBA 1996 TLR 198 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

B

MISC CIVIL CAUSE NO 164 OF 1994

23 March, 1995

Flynote

Family Law - Adoption - One potential adoptive parent a foreign national residing in

the Republic C - Requirements for valid adoption in such circumstances - Section

3(2) of the Adoption Ordinance, Cap.335.

Customary Law - Marriage by customary Sukuma law - Whether such constituting

valid marriage D for the purposes of adoption - Section 43 of the Law of Marriage,

1971.

-Headnote

The Applicants seek an order of adoption in respect of the infant Anthony Hongera

Gabba who was born of the Second Applicant and one Rogathe Kwayu. The

Applicants have been living together for the past seven years since dowry was paid

pursuant to E Sukuma customary law. The First Applicant is a citizen of the United

States of America and has resided in the Republic since 1971 on a 'Class A' permit.

A curator ad litem to the infant was appointed, who submitted a report to the Court

in terms of which the proposed adoption was not recommended. F

Held:

(i) The Adoption Ordinance permits adoption orders when two spouses

apply jointly for such an order.

(ii) To be recognised as husband and wife for the purposes of the

Ordinance, the marriage must be registered pursuant to Section 43 of the Law of

Marriage Act, 1971. G

(iii) The putative father's consent form should be duly signed.

(iv) The First Applicant should have supplied the Social Welfare

Department with his residence permit, since no adoption order can be made in

respect of any applicant not resident in the Territory.

H (v) The application is dismissed, but leave is granted to the Applicants to

re-apply after having clarified the issues raised.

(vi) No order is made as to costs.

Case Information

Ordered accordingly.

[zJDz]Judgment

Bubeshi J: I

The applicants Mr Leonard Reed Harrison and Kwigema Samson

1996 TLR p199

BUBESHI J

Gabba filed an application by way of chamber summons for the order of adoption of

one A Antony Hongera Gabba herein after to be called the infant. Supporting their

applications is an affidavit deponed by Mr Leonard Reed Harrison.

The background to this petition is that the infant Antony Hongera Gabba was born of

B Kwigema Samson Gabba and Rogather Kwayu of Dar es Salaam on 29 July 1979 at

Geita. That Mr Leonard Reed Harrison and Kwigema Samson Gabba have been living

together for the last seven years and that though not legally married dowry was paid

in accordance with Sukuma customary law. That the putative father of the infant

Antony C has consented to the said adoption and that the petitioners are keen to

adopt the infant so that he may be taken abroad for further studies. The petitioner Mr

Leonard Reed Harrison is a citizen of the United States of America but has been living

in this country since 1971 under a `Class A' resident permit. D

Following this application, this Court appointed the Commissioner for Social Welfare

to act as curator ad litem to the infant and the petition was so served on him.

On the day of the hearing of the petition, the Court invited Mrs Kyara from the social

E welfare department, to submit her report on the matter in terms of rule 13 of the

Rules of Court GN 1942 No 321. The report submitted and marked `A' had the

following salient points:

-- that it was not possible to establish the petitioners marital status as no

legal or F formal document to that effect was produced though it was contended that

cohabitation was approved by Kwigemas parents under customary law.

-- that the consent by the putative father produced to the curator ad litem

was not duly signed and efforts to clarify this anomaly proved futile as the putative

father G was out of the country for further studies.

-- that Mr Leonard Reed Harrison is a USA Citizen but his residential

status in this country could not be established though he has lived in Tanzania for the

last 27 years ie, from 1971. H

-- that discussions with the infant Anthony revealed that the infant has

not had time to discuss with his real father on the issue-the concern also echoed with

the mother Kwigema.

All in all the curator ad litem was therefore not recommending the proposed adoption

of I the infant to the petitioners.

1996 TLR p200

BUBESHI J

In reply thereto Mr Leonard Harrison Reed said as far as he knows he is a

businessman A residing in this country under `Class A' Residence Permit. As to the

marital Status, his customary law marriage to Kwigema was in accordance with

Sukuma customary law.

Kwigema on her part did not have much to say except to emphasize their willingness

in adopting the child. B

In accordance with s 3(2) of the Adoption Ordinance cap 335 an adoption order may

be made on the application of two spouses authorising them jointly to adoption an

infant. Before me is an application or petition issued jointly by Leonard Reed

Harrison and C Kwigema Samson Gabba for the adoption of Anthony Hongora

Gabba, the son of Kwigema Gabba.

The petitioners have been living in cohabitation for the last seven years and dowry

was paid in accordance with Sukuma customary law. That may be so, but in order

that those D two may be recognised as husband and wife (spouse) for the purpose of

adoption, it is my considered view that their marriage has to be registered as per s 43

of the law of Marriage Act 1971. That proviso reads:

Section 43(4)

E `when a marriage is contracted in the presence of a registration officer ...

according to customary law rites, it shall be the duty of the registration officer to take

necessary steps to register the marriage with the district registrar ...'

and again under F

Section 43(5)

`when a marriage is contracted according to customary law rites and there is

no registration officer present, it shall be the duty of the parties to apply for

registration, within thirty days of the marriage, to the registrar....' G

Hence the petitioner's purported marriage under the Sukuma customary law rites

should be registered according to the law so that they may be termed as spouses

within the meaning of the adoption ordinance. H

As to the issue of consent by the putative father one Rogather Kwayu, it is

unfortunate that the consent form sent to the social welfare department was not

signed. I think it should be duly signed. The court's copy is dated 20 December 1994

and one wonders why the copy sent to the Social Welfare Department bears no date.

I

Regarding the residential status of Mr Harrison. I think this is an

1996 TLR p201

important issue. The petitioner Mr Leonard Reed Harrison has to satisfy the Social A

Welfare Department of his residential status in this country by submitting to them

the necessary permit from the Immigration Department. This is important as no

adoption order shall be made in respect of any applicant who is not resident in

Territory-Section 4(5) thereto of cap 335. In the final analysis, this application cannot

succeed and it is B hereby dismissed. The parties are at liberty to reapply after

having clarified the issues raised above.

I make no order as to costs. C

1996 TLR p201

D