Sarah Malogo v William Vahaye 1983 TLR 217 (HC)

SARAH MALOGO v WILLIAM VAHAYE 1983 TLR 217 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

August 14., 1982

(PC) CIVIL APPEAL 57 OF 1981 G

Flynote

Family Law-Affiliation - Paternity and custody of a child - Whether for paternity to be effective it must be announced at time of birth and not merely during pregnancy.

Family Law - Legitimation - Whether legitimation of child must necessarily be before it was weaned.

-Headnote

The respondent sued in the Primary Court for paternity and custody of a female child born to the appellant on 8th June, 1976. He was successful. The appellant's first appeal to the District Court was dismissed and she further appealed.

Held: (i) Giving the law its true intentions, once a woman declares a particular man to be responsible for her pregnancy, she cannot afterwards be heard to represent otherwise;

(ii) where the intransigence of the mother makes the putative father unable to legitimate a child before it was weaned, the father should be allowed to legitimate the child even after it has been weaned.

Case Information

Appeal dismissed.

Case referred to:

Halifa v Hadija [1971] HCD n.1

Alimwike for the appellant.

[zJDz]Judgment

Lugakingira, J.: The respondent sued in the Primary Court for paternity and custody of a female child born to the appellant on 8th June, 1976. He was successful. The appellant's first appeal to the District Court was dismissed and she further appealed.

There was evidence which was accepted by both courts below that when the appellant became pregnant she announced this fact to the respondent, and even to her relatives, naming the respondent as the person responsible. And even after the birth of the child word was sent to the respondent who sent gifts which were accepted, and subsequently the appellant declared that the child was not his. That was the cause of these proceedings.

Mr. Alimwike who appeared for the appellant in this court submitted that for the announcement for a father to be effective it must be after the birth of the child and not merely during pregnancy. I am unable to agree, and I do not think that the Declaration of Customary Law G.N. 276/63, seeks to draw such tenuous distinction. I am of the view that, giving the law its true intention, once a woman declares a particular man to be responsible for her pregnancy, she cannot afterwards be heard to represent otherwise. On similar facts in Halifa v Hadija [1971] HCD n.1, it was similarly held that where a H putative father publicly makes customary payments in respect of a pregnant fiancee, the mother cannot afterwards deny paternity. And as we have seen the present case was not founded on a mere announcement during pregnancy. The birth of the child was also reported to the respondent; he sent gifts which were accepted, and it is no less important I to add, even the child was on a number of occasions handed over to the respondent's mother to look after. On all these facts, the lower courts were entitled to find, as they did, that the respondent was  the child's father.

Another point raised by Mr. Alimwike was about legitimation. He argued that, assuming the respondent was the father, he ought to have legitimized the child before it was weaned. That indeed is the law where the father does not elect to marry the mother. However, there was overwhelming evidence in this case that on three occasions the respondent sought to legitimize the child by payment of the customary "ndima" but on all those occasions his efforts were frustrated by the appellant's brother. She was either C demanding this or that or saying that the payment should await the appellant's brother. We do not know where this brother, one Mussa, is and there is no indication that he has ever turned up. The respondent can therefore not be blamed for the prevailing stalemate. It follows, in my judgment, that since the stalemate was occasioned by the intransigence on the appellant's side, it operated to excuse the respondent from the apparently strict provisions of para. 181B of G.N. 279/63. I am of the opinion that he can legitimize his child even now. He can do so by the payment of shs. 100/= provided for in the said paragraph or two cows as previously indicated by the appellant's parents.

The appeal thus fails and is dismissed with costs. In view of the appellant's bad faith and craftiness, to which even the learned trial magistrate referred, I direct that the appellant shall forthwith and peacefully hand over the child to the respondent, if she has not already done so.

Appeal dismissed.

1983 TLR p219

G