BEATRICE NJOWOKA v EVARISTUS NAMBUNGA 1988 TLR 67 (HC)

 

BEATRICE NJOWOKA v EVARISTUS NAMBUNGA 1988 TLR 67 (HC)

Court High Court of Tanzania - Mtwara

Judge Kazimoto J

6th June, 1988

Flynote

Family Law - S.160 of the Law of Marriage Act, 1971 - Whether the section can be

invoked B to legitimise a child born out of wedlock - When a child born outside

weldlock can be legitimised.

Family Law - Law of Persons - S.181 of the Law of Persons GN 279/63 - The effect of

non-compliance with the provision - Ss. 183 and 184 - Woman is given exclusive and

final C say to name the father of the child.

-Headnote

The respondent unsuccessfully sued the appellant for custody of a child in the

Primary Court, but his appeal was allowed in the District Court. Aggrieved, the

appellant D appealed to the High Court. The Appellant and respondent were friends

and it was during that relationship that the appellant got pregnant and a child, now in

dispute, was born. Their intention had been to marry, but the appellant changed her

mind. Hence the dispute over the child. The Primary Court applied the Law of

Persons in dismissing the E respondent's claim on grounds of respondent's noncompliance

with the customary Rules embodied in G.N. 279/63. The District Court

held that the respondent complied with s. 181 of the G.N. 279/63. That court based its

decision on s.160 of the Law of Mariage Act, 1971. The appellant's appeal revolved

around s. 181 of the Law of F Persons and she contended that the purported

payment by the respondent was infeffectual because it was made after the child had

weaning.

Held: (i) Section 160 of the Law of Marriage Act, 1971 does not deal with status of G

children;

(ii) under section 181 of the Law of Persons, payment of money to legitimise a

child must be made before the child has weaned;

(iii) sections 183 and 184 of the Law of Person G.N. 279/63 give the woman H

final say to name the father of the child.

Case Information

Appeal allowed.

Case referred to. I

1. Richard Mapesa v Rashid Bwana [1978] LRT n.4

1988 TLR p68

KAZIMOTO J

[zJDz]Judgment

Kazimoto, J.: The respondent sued the appellant for custody of a child in the Primary

A Court. He lost the suit with costs. He appealed to the District Court which allowed

his appeal. The appellant was aggrieved and she has appealed to this court. The appeal

was heard on 2/6/88. The appellant appeared in person, the respondent indicated that

he did B not wish to be heard on appeal. I proceeded with the hearing.

According to the evidence on record which the trial court accepted the appellant and

the respondent were friends and during their friendship the appellant got pregnant

and a C child, now in dispute, was born. This was on 11/11/83. It appears from the

evidence that they lived together. The respondent stated that they intended to marry

each other but the appellant had changed her mind. Hence the claim over the child.

The Primary Court applied the Law of Persons in dismissing the respondent's claim D

stating that the respondent did not follow the customary rules as embodied in

Government Notice No. 279 of 1963. The first appellate court held that the

respondent had complied with section 181 of the Law of Persons and that the father

of the appellant had refused to accept Shs. 300/= paid by the respondent. He also

based his decision on E section 160 of the Law of Marriage Act 1971. The appellant's

appeal to this court mainly centres on section 181 of the Law of Persons. She has

argued in effect that the purported payment by the respondent has no legal effect as

the payment was made on 23/7/85 after the child had ceased weaning. F

It is quite clear from the evidence on record that the appellant and the respondent are

not married. There is evidence that the appellant and the respondent were friends.

The District Court and the trial court found that the appellant and the respondent

lived under circumstances that there was a presumption of marriage under section

160 of the Law of G Marriage Act. The appellant has strongly denied this. I am

satisfied that she has been lying. There is evidence which established that the

appellant had cohabited with the respondent under assumption that they were

married. The child in dispute was born when the appellant and respondent were

living together. H

In his judgment the learned resident magistrate who heard the appeal stated that as

the child was born under the circumstances described above then he invoked section

160 of the Law of Marriage Act to the effect that the child belongs to the respondent.

The issue is whether the learned resident magistrate is right in his conclusion. I have

no doubt in my I mind that he has erred. The child in question

1988 TLR p69

KAZIMOTO J

is an illegitimate child. Section 160 of the Law of Marriage Act does not deal with

status A of children. It deals with maintenance. It enables a woman and her children

born during such cohabitation to apply for maintenance when such marriage has been

rebutted. In no way does the Law of Marriage Act deal with the status of illegitimate

children. B

In Richard Mapesa v Rashid Bwana [1978] LRT n.4 the appellant sued the respondent

for a declaration that the children born to his wife while living with the respondent

were his and an order that they should be in his custody. In that case the wife with

whom the respondent lived and with whom he had children was legally married to C

the appellant. The wife deserted the appellant and went to cohabit with the

respondent who fathered the children. The marriage between the appellant and his

wife had not been dissolved. In dealing with the status of these children the High

Court held: D

The evidence before the trial court therefore conclusively proved that the

children were fathered by the respondent. The respondent in fact did not dispute this.

Since it was established that the children were fathered by the respondent, the legal

presumption of legitimacy of children E born in wedlock was thereby rebutted. This

means that the two children are illegitimate. Since the Law of Marriage Act 1971

makes no provisions for the status of illegimate children, the court has to resort to the

Customary Law of the parties to resolve the issue as to whom the children belong. F

In view of the above decision with which I agree I hold that the child being

illegimate the learned resident magistrate erred in declaring it as the respondent's

child under the Law G of Marriage Act 1971.

In her memorandum of appeal the appellant attacked the decision of the learned

resident magistrate in holding that under customary law the respondent is entitled to

the custody of the child. In his judgment the learned resident magistrate said this: H

Section 181 of the Law of Person G.N. 279/63 state that when such children

are born during the said type of marriage then in order to legitimise a child must (sic)

pay Sh. 100/= to the father of the girl and that that should be done before the child

has left breasts (about two years I since birth).

1988 TLR p70

KAZIMOTO J

He went on to note that the respondent tried without success to pay Shs. 300/= to the

A appellant's father who refused to accept the money. There was evidence that

appellant's father refused to accept the money. He went on to hold that the refusal by

appellant's father to accept the money was immaterial. The appellant had contended

that the payment was ineffectual in law as the respondent paid the money after the

child had B weaned.

Section 181 of the Law of Persons G.N. 279/63 provides:

181 A. A father has the right to legitimize his illegitimate children at any time

by marrying their mother. C

B. If a man wishes to legitimize his child without marying its

mother he can do so before the child is weaned by paying Shs. 100/= to the girl's

father.

Clearly the respondent could legitimize his child by marrying the appellant or by

paying D Shs. 100/= to the father of the appellant. The appellant does not want to be

married to the respondent. The respondent could have legitimated the child by

paying to appellant's father Shs. 100/=. The issue is whether the respondent paid the

money before the child E had been weaned. No direct evidence has been led on this.

The learned resident magistrate stated in his judgment that a child stops breast

feeding about two years. That could be his own personal experiment but there is no

evidence on record to support this F finding. In absence of any evidence I am not

prepared to agree that a child stops breast feeding in about two years. There is

however evidence that the child was born on 12/11/83. The respondent wrote a letter

to the appellant's father on 23/7/85 declaring himself that he is the father of the child

the appellant gave birth to. The appellant's father G rejected the respondent's

overtures on 28/7/85. In her submission before me the appellant stated that by the

time the respondent attempted to pay the money to her father the child had stopped

weaning. She also stated that by then the matter had been referred to the Welfare

department. If respondent paid the money after the child had weaned the H

payment was ineffectual as paragraph B of section 181 of the Law of Persons has not

been complied with. In my judgment I hold that the learned resident magistrate

errred in holding that the respondent had legitimated the child in accordance with

section 181 of the Law of Persons.

There is one aspect which I have noted that escaped the attention of the learned

resident I magistrate. In her evidence the

1988 TLR p71

appellant stated that the man who made her pregnant is not the appellant. She

testified A that she had a number of men who had amorous association with her. She

therefore denied that the respondent is the father of the child. Her evidence ran like

this:

Huyu mdai namfahamu kama ni mfanyakazi mwenzangu tumefanya kazi

pamoja. Katika B madai hayo huyu mtoto wangu nimezaa na wanaume wengine.

Mwanaume niliyezaa naye namjua mimi siyo yeye.

Sections 183 and 184 clearly gives the final decision to a woman to nominate the man

C who made her pregnant even if she falsely accuses a man of making her pregnant.

Her word carries the day and the man has the ardous duty to discharge the allegation.

As the appellant has named another man as the father of the child the respondent has

to prove, and such proof is lacking in this case, that he is the man and only man who

made the D appellant pregnant. The learned resident magistrate did not direct

himself to these provisions and had he done so he would not have come to the

conclusion he did.

As a result and for the reasons I have stated the judgment of the District Court which

cannot be upheld is set aside and I allow the appeal with costs and uphold the

judgment E of the trial court.

Appeal allowed.

1988 TLR p71

F