JACOB MWANGOKA v GURD AMON 1987 TLR 165 (HC)

 

JACOB MWANGOKA v GURD AMON 1987 TLR 165 (HC)

Court High Court of Tanzania - Mbeya

Judge Mroso J

15 December, 1987

Flynote

Civil Practice and Procedure - Jurisdiction - Jurisdiction - Customary tort - Whether E

justiciable in Primary Courts - S. 18(1)(i) of Magistrates Court Act, 1984 - Para 190, Part IV,

First Schedule, Law of Persons, G.N. 279/1963.

Civil Practice and Procedure - Compensation - Whether expenses for educating a daughter who

is made pregnant are recoverable.

Evidence - Pregnancy - Burden of proof that daughter not made pregnant by the accused - F

Para 183 of Law of Persons GN 279/1963.

-Headnote

The appellant is the father of a girl who was allegedly made pregnant by the respondent. G The

appellant had obtained judgement in his favour from the Primary Court which was successfully

appealed against in the District Court on three grounds, to wit, that Primary Courts have no

jurisdiction in tort cases; that expenses incurred by a parent in educating his child cannot be

sued for in court if the child's education is terminated as a result of H pregnancy; that a parent

has no cause of action against a man who fornicates with his daughter. The issue on appeal was

whether the first appellate court erred in so holding.

Held: (i) Primary Courts have jurisdiction in all proceedings of a civil nature where the I law

applicable is customary law;

1987 TLR p166

MROSO J

(ii) a customary tort is justiciable in Primary Courts; A

(iii) damages for expenses incurred in educating a daughter who terminates her studies on

account of pregnancy are not awardable.

Case Information

Appeal dismissed. B

Cases referred to.

1. Mpapayu v Tusiliwa [1972] HCD n. 229

2. Halfani Saluum v Halfa Kondo [1969] HCD n 181. C

[zJDz]Judgment

Mroso, J.: This is an appeal against the judgement of the District Court of Mbeya. The appellant

had obtained judgement in his favour from the Primary Court of Mabatini in Mbeya

Municipality but the respondent successfully appealed to the District Court against that decision.

The appellant has come to this court to ask that the decision of the D Primary Court be

restored.

The appellant is the father of a girl called Sabeta who is now aged a little over eighteen years.

This girl has a baby who was born almost a year ago (on 30/12/1986). Sabeta claims that the

respondent who is now nearly twenty years of age is the father of her baby. At the time Sabeta

was made pregnant - during the early months of 1986 - she E was in Form II at Mbeya Day

Secondary School. The respondent was in Form III at Sangu Secondary School. Because of the

pregnancy Sabeta was discontinued from school. Her father - the appellant - filed a suit in the

Primary Court claiming F compensation in the sum of Shs.20,000/= made up as follows:

School uniforms Shs. 4,500.00

Fare to and from school l7,200.00

School fees G 840.00

Shoes 1,000.00

Exercise books 360.00

Soap 1,000.00

Pencils 100.00

Embarrassment H 5,000.00

Total 20,000.00

The Primary Court found as a fact that it was the respondent who made the daughter of the

appellant pregnant and therefore liable to pay the compensation as claimed. I

In reversing the decision of the Primary Court the first

1987 TLR p167

MROSO J

appellate court held that the claim was not adjudicable in the Primary Court because it A was

under the law of tort and that Primary Courts have no jurisdiction to try tort cases. Secondly,

that expenses incurred by a parent in educating his child cannot be sued for in court if the

child's education is terminated as a result of a pregnancy. Thirdly, that in any B case a parent

has no cause of action against a man who fornicates with his daughter, whether or not she is

made pregnant.

The appellant has felt deeply aggrieved by the decision of the District Court. He argues with

bitterness that if the law of tort does not recognise the right of a father to claim C damages

against a man who fornicates with an unmarried daughter, Nyakyusa customary law recognizes

such a claim as valid.

It is not quite clear to me what the District Court meant by saying that the appellant's claim was

"under the law of tort" and that a primary court had no jurisdiction to entertain D it. We know

that there are torts which come under customary law. Under Section 18 (I) (i) of the

Magistrate's Courts Act, 1984 a Primary Court has jurisdiction in all proceedings of a civil nature

where the law applicable is customary law. Indeed, under paragraph 190, Part IV, First Schedule

of the Law of Persons, G.N. No. 279 of 1963 E (which was applied to Mbeya District by G. N.

No. 436 of 1963) it is provided that a father is entitled to compensation of not less than shillings

100/= against a person who makes his daughter aged under twenty one years pregnant. If a

parent has such F entitlement it means that he can sue such a person in a Primary Court.

In the case under discussion the appellant sued for, inter alia, what he termed "kunitia aibu",

which would appear to come under paragraph 190 of the first schedule to the Law of Persons,

cited above. Shillings 5,000/= was claimed under that item and the trial G Primary Court

accepted and allowed it.

This court has on several occasions approved of the right of a father to sue for compensation in a

situation similar to the present one. For example in the case of Mpapayu v Tusiliwa [1972]

H.C.D. n. 229 Kwikima Ag. J as he then was said: H

The Declaration of Customary law allows fathers (to obtain) compensation from those

who made their daughters pregnant.

The learned acting judge must have had in mind paragraph 190 of part IV of the First I

Schedule to the Declaration of Customary Law, G.N. No. 279 of 1963.

1987 TLR p168

MROSO J

As for the claim to recovery of expenses incurred by the appellant in educating his A daughter

Sabeta up to the time her education was terminated by the pregnancy, I would agree with the

first appellate court that the appellant cannot recover. The expenses were not wasted, Sabeta got

her education for as long as she remained in school and that education did not vanish merely

because she became pregnant. The pregnancy may B have denied her the benefit of possible

further education, but that could not justify the claim of shillings 15,000/=. As Said, J. as he then

was, said in the case of Halfani Saluum v Halfa Kondo [1967] H.C.D n. 181 in which a parent

claimed damages for C the expenses she incurred in educating her daughter for six years:

The claim does not disclose a cause of action as presented because it is the duty of a

parent to educate his child. The expenses incurred for that purpose cannot be claimed for the

child's D education being cut by intervening circumstances.

The question now in this case for consideration is whether it was the respondent who made the

appellant's daughter pregnant. The girl Sabeta named the respondent as the E culprit. The

respondent denied it. But was that enough for him to escape liability? Under customary law it

was not enough.

Paragraph 193 of the Law of Persons, GN. No. 279 of 1963 provides as follows: F

Mwanamume ambaye ametajwa na mwanamke (asiyeolewa) kwamba ndiye baba wa

mtoto hana budi kumkubali kwamba yeye ndiye baba wa mtoto ila akiweza kuhakikisha

kwamba hakuzini na yule mwanamke. G

This paragraph puts the burden on the man to prove that he did not have carnal knowledge with

the woman. The respondent did not discharge that burden. As it turned out the trial court

believed that it was the respondent who made Sabeta pregnant. On the evidence it was open for

the court to reach such a finding and I am not about to H disturb it.

In view of my earlier decision that a parent can claim and obtain judgement for compensation

against a person who makes his dependent daughter under the age of 21 years pregnant, the

remaining question now is whether the claim for Shs.5,000/= can be I allowed. The trial court

allowed it. The respondent did not and

1987 TLR p169

has not before me suggested that the amount was excessive. I for my part do not A consider it

either excessive or unreasonable. I therefore uphold the decision of the primary court regarding

the award of shs. 5,000/= as compensation. Therefore, the appeal succeeds to that extent.

The amount which had been claimed in the whole suit was shs. 20,000/=. I have B allowed

only a quarter of it (shs. 5,000/=). Corresponding to that only a quarter of the appellant's costs

are allowed in this court and in the two courts below.

C Order accordingly.

1987 TLR p169

D