Chibolyani v. Milowara (PC) Civ. App. 3-D-70; 7/10/70; Biron, J.

 

Chibolyani v. Milowara (PC) Civ. App. 3-D-70; 7/10/70; Biron, J.

The appellant inherited his brother’s widow on the death of his brother, and the parties lived together for over sixteen years. During that time, there were born two children. The respondent then left the appellant, and apparently went to live with a half-brother of hers. The respondent’s case was that the appellant was not the father of the children, but one Mazowea, apparently another brother of the deceased. The evidence was adduced to establish the appellant’s paternity. A native doctor testified that when he treated the respondent when she was pregnant she brought the appellant’s paternity. A native doctor testified that when he related the respondent when she was pregnant she brought the appellant as her husband and the father of the child. The respondent’s half-brother also confirmed that the parties had lived together for many years and the two children, the subject of claim had been born to them. The respondent’s sole witness was one Mazowea, who said that the children were his. The primary court, as is usual, sitting with assessors, compared the children with the parties, and found that both children resembled in appearance the appellant, thus supporting his claim to be their father. The unanimous opinion of the primary court was that, as the children were begotten by both parties who, however, had never formally married, in order to substantiate his claim to the children, in accordance with local Gogo custom the appellant had to pay two cows for each child, which he was prepared to do. The respondent appealed to the District Court of Dodoma. The district court magistrate apparently ignoring Gogo Customary Law, which was applicable to this case, directed himself that, whilst he could find provision for the legitimation of children born to single girls out of wedlock, he could not find any corresponding provision in the case of a widow. He accordingly, reversing the order of the primary court, upheld the respondent’s claim to the children. On appeal to the High Court.

            Held: (1) “As I think sufficiently demonstrated, the factual evidence established that the appellant was the father of the children. Also, as submitted by the appellant in his memorandum of appeal, the primary court properly directed itself, on the Gogo Customary law, that the children belonged to him on the payment by him of four cows. With regard to the Law of Persons, G.N. 279 of 1963, which the district court magistrate purported to have applied, he had overlooked the provisions of Rule 64, which reads: “If the widow agrees to live as wife with one of her deceased husband’s relatives and consent to this has been obtained from the family council, she becomes the legal wife of this relative.” Therefore both on the facts, and in law, that is, both under the general Customary Law, and the particular Gogo Customary Law, the appellant is entitled to the children. (2) “The appeal is according allowed. “