Takolize v. Takolize (PC) Civ. App. 287-M-69; 22/1/70; Seaton J.

Takolize v. Takolize (PC) Civ. App. 287-M-69; 22/1/70; Seaton J.

The appellant claimed inheritance which was denied by the respondent, the daughter of Takolize on the ground that the appellant was not Takolize’s son. The appellant alleged that he was the posthumous son of Takolize, who died sometime in 1942 of 1943; that her mother  was several months pregnant when Takolize died and that he had been accepted by clan members as Takolize’s son. The primary court decided in favour of the appellant relying on Sections 175 and 182 of the Law of Persons, (G.N. 279 of 1963). The District Magistrate reversed this decision on the ground that according to evidence, the appellant must be 20 years of age; therefore, he must have been born in 1949. but his own mother testified that Takolize died in 1942 i.e. seven years before his birth. The district magistrate also cited S. 176 of the Law of Persons that a child does not become a legal member of its step father’s family by merely living in the step father’s house. On appeal, the appellant challenged the district court’s finding on the ground that his mother was illiterate and did not even know the current year, and submitted that Takolize’s death should have been proved by documentary evidence.

            Held: (1) “Who should have produced such documentary proof? According to Rule I (2) of the Magistrates Courts (Rules of Evidence in Primary Courts) Regulations, 1964, the complainant must prove all the facts necessary to establish his claim unless the other party admits it. The date of Takolize’s death was a fact essential to

the appellant’s claim that he was born within such a period of months thereafter as to make him his on. As the appellant did not establish this proof, he was not entitled to succeed in his claim.” (2) “It seems to me the district court judgment can also be supported on another round. Rule 5 of the Magistrate’s Courts (Limitation of Proceedings under Customary Law) Rules, 1964, given the court power to reject any claim if it is of the opinion that there has been unwarrantable delay in bringing the proceeding and that the just determination of the claim has been prejudiced by the delay. No reason has been adduced for the 20-year delay in bringing the present suit except lack of money to pay court fees. Minority was not pleaded and, even had it been pleaded, might not have sufficed as the suit could have been brought on the appellant behalf by his mother or guardian. Poverty is no excuse in view of the possibility of obtaining the court’s permission to sue in forma pauperis. Had the suit been brought before the lapse of so many years, the documentary proof whose lack is deplored by the appellant might well have been supplied.” (3) Appeal dismissed.