CHACHA MALIMA v MWITA KITOGO 1986 TLR 117 (HC)

 

CHACHA MALIMA v MWITA KITOGO 1986 TLR 117 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

(PC) CIVIL APPEAL 87 OF 1985

Flynote

B Customary Law - Legitimization of children - Legitimization by a man not mentioned by the

mother's child and not natural father of the child - Whether possible - Customary Law

(Declaration) Order 1963, G.N. 279/1963, rr. 181 A and B.

-Headnote

C The appellant married the respondent's daughter when the said daughter had a suckling

female baby. He claimed that he paid the respondent cattle as bride price and for legitimization

of the child. When, after a few years, the marriage relationship grew sour the marriage broke.

The appellant then sued the respondent claiming the female child on the D ground that he had

already legitimized her. There was no evidence to show either that the mother of the child had

named the appellant as the father or that the appellant was the natural father of the child.

E Held: (i) The appellant was never the father of the child nor did he try to assert himself in

that direction; therefore he had no competence to legitimise the child;

(ii) to allow an extension of the application of rules 181 A and B of the Customary Law

(Declaration) Order, 1963 and allow a man to acquire children on mere payment of cattle or

cash would introduce child purchase which would F be repugnant to our system and

jurisprudence.

Case Information

G Appeal dismissed.

Case referred to:

1. Hamis Ungaunga v Omari Said [1973] L.R.T.n. 37

[zJDz]Judgment

Katiti, J.:In Musoma Urban Primary Court, Chacha Malima the appellant herein sued Mwita

Kitogo hence the H respondent, claiming a female child, from the latter party, founding the

claim on the alleged legitimisation of the said child, by payment of eight heads of cattle, upon

marrying the child's mother. The Primary Court was unanimously of the view that as the child

was never fathered by the appellant the question of legitimatization did not arise. They instead

ordered I that the appellant be compensated

1986 TLR p118

KATITI J

A sh.8000/=. The respondent successfully appealed to the District Court, which allowed the

appeal on two main grounds, namely, (1) that while the appellant had in law been entitled to

legitimatize the child by payment of cattle, his demand of, and being refunded the same

derogated from his claim, and therefore he ceased to have any rights over the B child, and (2)

that, as the appellant deliberately and voluntarily entered into a marriage relationship with the

respondent's daughter, who at the material time had a suckling baby, he assumed the

responsibility of maintaining the child, the liability for which could not be attached to the

respondent in the absence of evidence, or agreement for so doing. The District C Court

disallowed the compensation.

The appellant has appealed to this Court, against such a verdict. The facts of the case, fall within

a narrow compass. The appellant Chacha Malima amorously fell into the embrace of the

respondent's daughter, who already had a baby D daughter, by some other man, and decided to

marry her. The respondent's daughter had a suckling female baby, and with such full

knowledge, the appellant married the respondents daughter who because of the extreme infancy

of the child, had to go with the baby to matrimonially live with the appellant. It was claimed by

the appellant, that what was E agreed upon between him and the respondent, was that the

appellant pay twelve heads of cattle as bride price, and eight heads of cattle as child

legitimisation payment, the latter part of evidence being denied by the respondent. It is all the

same undisputed that, the appellant only paid eighteen heads of cattle. The wear and tear and

corrugations of marriage F having intruded into the marriage irreconcilably, the appellant and

the respondent's daughter parted and were divorced. The appellant was refunded all the bride

price he had paid, but he still wanted the child founding his claim on the claimed legitimization

of the said child. G

This appeal does in my view raise two issues that serve to dispose of the appeal. They are (1),

whether a man, not a father, nor named as a father, has competence to legitimate an illegitimate

child, and acquire legal paternity. And (2), H whether the Primary Court was entitled to award

compensation for the upbringing of the child for three years (1981 - 1984) an aspect that was not

pleaded, and disallowed by the District Court, but still being harped upon in this appeal, by the

appellant. The first issue, it seems to me seeks the application of the provisions of Rule 181 A

and B, of the I Customary Law (Declaration) Order 1963, G.N. 279/1963.

1986 TLR p119

KATITI J

A According to the provisions of Rule 181 A and B, of the Customary Law (Declaration) Order

1963, there are two ways, either of which may serve to legitimate an illegitimate child, but each

being tied to one constant common denominator condition precedent, and that is, it is the father

of the child, whether named by the mother, or is acceptably B the natural father, who may

legitimate the illegal child - (1) by either marrying the mother, or (2), without marrying the

child's mother, by paying Shs.100/=, which may also be in kind, to the child's mother's father; -

the condition precedent, in either way, being that he must be the father of the child, either, as

named by the mother, or as commonly accepted as the natural father. I seek support on one of

the ways, under Rule 181 B of the Customary Law (Declaration) order 1963 C from the case of

Hamis Ungaunga v Omari Said [1973] L.R.T. No. 37, which held that, it was the father of the

child born out of wedlock, who could legitimise the child by payment of Shs.100/=, if he does

not marry the mother. In this case, the appellant was never the father of the child, nor, did he

try to assert himself in that direction, and had D therefore no competence to legitimise the said

child, and to allow an extension of this rule, to allow any man to acquire children, on just

payment of cattle or cash is to introduce child purchase which would be repugnant to our

system and E jurisprudence. I would therefore and hereby, dismiss the appellant's claim on this

aspect.

The second issue, is about the compensation aspect for upbringing the child. This was

unpleaded, but conceived by the Primary Court and disallowed by the District Court on appeal.

With due respect to the Primary Court, the compensation issue was never pleaded, nor

otherwise demanded in the course of adducing evidence by the appellant. Thus not only F was

this offensive of the rules of pleadings - see rule 15 of the Primary Courts Civil Procedure Rules,

and not only did the element of surprise, deprive the respondent the right or reply thereto, but

the figure was also arbitrarily fixed, in favour of G the appellant. The trial Court, should not

have gone out of its way to consider what was not pleaded.

But, even if compensation had been pleaded, and was an issue, it seems to me, the same would

raise demanding H questions. First, it seems to me that where a man decides and marries, a

woman who is suckling an illegitimate baby by another man, and takes both of them, because

essentially out of love and affection for the mother, he has thereby voluntarily assumed the

responsibility, and when the marriage is shattered beyond repair and the child is taken away I ,

there cannot be the basis for liability of the father-in-law, in the

1986 TLR p120

A absence of customary law, or contract to that effect, and such we do not have. Second, for

quite a while, the baby is suckling its mothers' milk and how to quantify that milk and

computerise the same into cash and apportion the same into refundable labour to the appellant is

very difficult. Third, the child's mother's work, care and, contribution, etc, for we B know

rural women are the chief producers of food and cash crops, and chief carers of children, and it

would be, difficult to quantify into monetary language, and show how great or greater was the

contribution by the appellant. Unfortunately during the heat of love such consequential details

are never worked out. From the above, it seems to me, compensation C under the

circumstances, must have been pleaded, and strictly proved, and basis for liability established.

In this case it was not, and the District Court was right to disallow it, and it is by this Court

equally disallowed. The appeal is hereby dismissed with costs.

D Appeal dismissed

1986 TLR p120

E