Zabron v. Amon Msc. Civ. App. 3-D-71; 15/3/71; Georges C. J.

 

Zabron v. Amon Msc. Civ. App. 3-D-71; 15/3/71; Georges C. J.

This is an appeal from a judgment of the trial magistrate finding that the appellant was the putative father of a child born to the respondent and ordering Shs. 80/- per month maintenance. Evidence shoed that appellant had written to the father of the respondent admitting paternity. He also admitted to the respondent’s aunt that he was the father. Furthermore, the appellant had signed, before a Probation officer a document containing an admission of paternity and promising maintenance of Shs. 50/- a month. The appellant now denied paternity, argued that he had not read the document he signed and that the evidence of the aunt should not have been accepted as she was a relative of the respondent. It was further argued by the appellant that the affidavit sworn by the respondent to initiate the proceedings was not adequate because it did not disclose a cause of action and that the claim was time barred.

Held: (1) “On the evidence before him it appears to me that the magistrate could have come to no other conclusion but that the appellant was the father of the child. The appellant’s admission to the respondent’s aunt, the letter to her father and the agreement before the Probation Officer provide abundant corroboration of the respondent’s testimony.” (2) It is true that as a relative the aunt’s evidence would have had to be looked at with a certain amount of care, but having regard to the documentary admission made later the magistrate was entitled to find, as he did, that she was speaking the truth and that the appellant had admitted paternity shortly after the birth of the child.” (3)  The appellant argues that under section 12 of the Affiliation Ordinance, Cap. 278 the forms and procedure to be followed in any proceedings under the Ordinance shall be as near as practicable as in ordinary civil cases before subordinate courts ………. The Ordinance does not provide that the Civil Procedure Code shall be applicable. It merely states that the court shall, as near as practicable, follow the procedure in ordinary civil cases before a subordinate court. ……….. Section 3 of the Ordinance makes specific provision as to the method by which proceedings under the Ordinance are to be commenced. They are to begin with an application by a complaint on oath to a magistrate for a summons to be served on the man alleged to be the father. The magistrate to whom this application is made …. Can refuse to issue the summons if he thinks that the application is being made for purposes

of intimidation or extortion, and he is not to issue the summons unless he is satisfied that the man alleged to be the father has been asked to provide maintenance for the child and has refused to  do so. Once the magistrate has considered these issues and has granted a summons then it would appear to me that the proceedings have been properly commenced and no objection could be taken that the affidavit did not disclose a cause of action.” (4) In fact the affidavit in this matter set out all the matters required by the Ordinance. (5) “The Ordinance provides four periods of limitation. The complaint may be made:- “(a) before the birth of the child, or (b) at any time within 12 months from the birth of the child, or (c) at any time thereafter upon proof that the man alleged to be the father of the child has within 12 months after the birth of the child. There was evidence from the respondent, however, that after the birth of the child in September, 1963 and before 1965 when the appellant left Mbeya he did give soap, clothes and other things for the child.” Once a father provides maintenance for a child born out of wedlock within the first 12 months after birth a complaint can be made under section 3 (c)of the Ordinance at any time. (6) It can be argued that subsection (c) speaks of payment of money for the maintenance of he child whereas in this case the evidence was of the provision of maintenance in kind. I am satisfied, however, that a father who uses his money for the purpose of buying items necessary for the maintenance of his child born out of wedlock and later hands these items over for the use of the child can be said to be paying the money for the maintenance of the child. (7) Therefore the application was not time barred. (8) Appeal dismissed.