Paulo Ifunya v. Edward Zakayo. (PC) Civ. App. 233-M-69; 16/12/69; Bramble J.

Paulo Ifunya v. Edward Zakayo. (PC) Civ. App. 233-M-69; 16/12/69; Bramble J.

The appellant is the respondent’s father-in-law. His case was that the respondent’s wife delivered twins while he 9th respondent was on leave. He returned and stayed with her for two weeks and retuned to his job without leaving her any money. The respondent’s mother prevented his wife from taking produce from the shamba and when his wife found herself in bad circumstances she went to her parents with her children. She informed the respondent but he did not reply or sent any money for her. The appellant supplied the means to maintain the respondent’s wife and children. The respondent claimed that he gave his wife Shs. 80/- to maintain them while he was away and paid charges for the midwife and admitted that he sent no money for the 41/2 months that he was away. He said that the appellant took away his wife in his absence. The trial court found that the respondent had left no money or means to support his family and that there was ample evidence to support the amount claimed. It was basically a claim for money used to supply necessities to the respondent’s wife. The district court reversed the decision.

            Held: (1) “The decision of the district court was based on what was said to be the Bahaya Customary Law and it is that – “if the children of a man are sent to their father-in-law it depends on the agreement of the father of the children and his father-in-law upon whether the father-in-law can claim maintenance.” On the other hand it had been stated that according to custom if a wife is not well treated by a husband she can go back to her parents’ home. The return in this case was a necessity caused by the failure of the respondent to provide subsistence. It cannot be reasonably held that the shamba, which is about 1/8 acre, could provide the necessities for the children more particularly as the wife was not allowed to use the produce. There was no evidence that the appellant invited his daughter to stay at his home. Because of the legal obligation of the respondent and the necessity induced by his failure to provide for his children I hold that an agreement to pay for their maintenance can be implied.” (2) Appeal allowed.