JEROME CHILUMBA v AMINA ADAMU 1989 TLR 117 (HC)

 JEROME CHILUMBA v AMINA ADAMU 1989 TLR 117 (HC)

Court High Court of Tanzania- Mtwara

Judge Maina J

13 July, 1989

Flynote

Family Law - Maintenance - Quantum - Factors to be taken into consideration when

awarding maintenance. E

-Headnote

In a suit for maintenance of a child born out of wedlock the Primary Court ordered

the appellant to pay the respondent one thousand shillings per month in

maintenance. On appeal the District Court enhanced the monthly payments to one

thousand two hundred F shillings relying on the provisions of paragraph 3(3)(c)(iii)

in the Fourth Schedule to the Magistrates Court Act, which provides that attachable

salary "shall not be deemed to include two-thirds of any salary or wage which exceeds

one hundred and fifty shillings monthly". The appellant's monthly salary was

shs.3,578/=. G

The High Court found both lower courts to have erred in their application and

understanding of the law and reduced the monthly maintenance payments to

shs.600/=.

Held :In a case for maintenance, it is important for a trial court to find out the income

of H the person sued in order to be able to decide the amount to be paid.

Case Information

Appeal allowed.

No case referred to. I

1989 TLR p118

MAINA J

[zJDz]Judgment

Maina, J.: In a suit field at Mtwara Urban Primary Court, the appellant was ordered to

A pay to the respondent a sum of shs.

1,000/= per month for maintenance of a child born out of wedlock. The appellant was

dissatisfied as he thought that the amount awarded was too high. He appealed to the

District Court which enhanced the amount to shs.1,192/90 per month. This appeal

seeks B an order by this court to reduce the amount awarded by the lower courts.

There was no dispute that the appellant is the father of the child born out of wedlock

following the appellant's love affairs with the child's mother who is the respondent in

this case. The appellant had in fact been paying money for the maintenance of the

child, but it C seems that misunderstandings arose between the parties on the

amount which was being paid. The appellant's contention is that he cannot afford to

pay the amounts awarded by the lower courts considering his income and the people

who depend on him. The Primary Court did not even consider the appellant's ability

to pay the amount D awarded. No effort was even made by the trial Primary Court

to find the incomes of the parties. The amount of shs.1,000/= was awarded arbitrarily.

In a case for maintenance, it is important for a trial court to find out the income of the

person sued in order to be E able to decide the amount to be paid. The Primary

Court erred in ordering the appellant to pay shs.1,000/= monthly without even

finding out the appellant's income and ability to pay.

The District Court took into consideration the appellant's monthly salary of

sha.3,578/= and ordered that the appellant should pay one-third of his monthly salary

as maintenance F of the child. The learned district magistrate cited the Fourth

Schedule to the Magistrate's Court Act, paragraph 3(3)(c)(iii) which provides that

attachable salary "shall not be deemed to include two - thirds of any salary or wage

which exceeds one G hundred and fifty shillings monthly." That provision means

that two-thirds of a persons salary should not be attached. It does not mean that onethird

of a salary is automatically the amount of maintenance for a child. The amount

which a child should be paid as maintenance will depend on the circumstances of

each case. That amount cannot automatically be one-third of the salary of the child's

father. H

There was no dispute that the appellant has a wife and three children who depend on

him. Two of the children are in secondary schools. These are factors which the

learned district magistrate should have considered in deciding the amount to be paid

to the child I born out of wedlock. The appellant's children and his wife are entitled

to a share in the appellant's salary. It is unfair and

1989 TLR p119

unreasonable to give to one child one-third of the salary, and the appellant, his wife

and A the other three children to share the remaining two-thirds of the salary. All

the appellant's children and other dependents are entitled to equal share of the salary

for their maintenance. The order of the District Court that the respondent should be

paid one-third of the appellant's salary is set aside. B

I have considered all the circumstances in this case including the appellant's salary

and number of dependents. I order that the appellant pays to the respondent the sum

of sh.600/= per month for the maintenance of the child, effective from July, 1988. C

Appeal allowed.

1989 TLR p119

D