PUNDI ILANDA v ALLI KWIMBA 1984 TLR 55 (HC)

PUNDI ILANDA v ALLI KWIMBA 1984 TLR 55 (HC)

Court High Court of Tanzania - Singida

Judge Lugakingira J

November 29, 1985

B CIVIL APPEAL 37 OF 1984

Flynote

Civil Practice and Procedure - Hearing - Altering the nature of claim at hearing -

Whether allowable under Primary Courts' Civil Procedure Rules - Rule 44 of the

Primary Court's Civil Procedure Rules.

C Family Law - Maintenance - Compensation for maintenance of deceased's

children while cohabiting with their mother.

-Headnote

The appellant commenced the action in the Primary Court claiming compensation for

alleged D maintenance of the respondent's deceased brother's children. In the course

of testimony, however, the appellant abandoned his original claim and claimed the

children themselves. The court ignored the discrepancy and went ahead to grant the

compensation against which the respondent successfully appealed against in the

District Court hence the present appeal.

E Held:It is nowhere provided in the Primary Courts Civil Procedure Rules for a

claimant to alter the nature of his claim at the hearing; on the contrary, rule 44 which

provides for settlement of issues at F the first hearing implies necessarily that a

claimant is limited to the pleadings.

Case Information

Appeal dismissed.

No case referred to.

[zJDz]Judgment

G Lugakingira, J.: The appellant commenced action in the Primary Court claiming

12,000/- in compensation on the allegation that he had maintained the respondent's

deceased brother's four children for twelve years. In the course of his testimony,

however the appellant came up with a H different claim, namely the children

themselves. The trial court took notice of the discrepancy but ignored it and

proceeded to award the appellant the sum claimed. It held, however, that the

appellant maintained the children for eight years, that being the period he had

cohabited with their mother. I From this decision the respondent successfully

appealed to the District Court and that prompted the present appeal.

1984 TLR p56

I think the District Court rightly reversed the decision of the trial court. As the record

perfectly A indicates the appellant abandoned his claim and came up with

something different. There was no evidence on the claim as such which then ought to

have been dismissed. It is however provided in the Primary Courts Civil Procedure

Rules for a claimant to alter the nature of his claim at the hearing. B On the

contrary, rule 44 which provides for settlement of issues at the first hearing implies

necessarily that a claimant is limited to the pleadings. The District Court was

therefore justified in its action for the irregularity was not a mere technicality which

could have been ignored. C

There are indications, indeed, that the irregularity occasioned a failure of justice.

Before the District Court the appellant indicated that none of the four children was

aged over three years. Now, it is impossible to maintain a child for twelve or even

eight years if it is aged three years. The trial court D thus proceeded perilously in the

absence of relevant evidence. I had the advantage of seeing and hearing the appellant.

He is old and confused. Unfortunately, that does not entitle him to gratuitous

judgments.

The appeal is dismissed with costs. E

Appeal dismissed.

1984 TLR p56

F