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
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