N

- /. 00

IN THE HIGH COURT OF TANZANIA

ATMWANZ (PC) CIVIL APPEAL NO. 1 OF 1975 (From the •decisiorc of the District Court of Mwariza at

MWANZA in Civi*Appeal. No. 13 Before B.D. Chipeta Esq., oo . o . o. . 0 00000SoRoMo Mwana Urban Pr4 Court C.0 54/74) .UGUSINC MREMA...,. • • • • 0 0000 0000 0O0 0 0 0 000000000 OAPPELLANT versus JUDG:ENT. • KATITI. A, J.: •.meaei1antAuguWeMrema .ues.si-]ly.sued .the.eponefl. in Mwanz Urban Primary Court for custoly , of a child born ou- Qf wed- lock but iesultant from concubiriary , cohabitatlon ) of the part.es. f'he Primary Court unanimously found in favour of the appellant0 Tb1p, res- oorident aggrievd, soi'ht to and actually appealed to he District Court against the decision of the 'rimary Curt. The District Court cfter a careful consideration of the case allowed -te appoa wth costs against the fespondent. The appellant çbvously aggrieved seeks to appeal against the judgment of . the DistrictCourt. The appellant's grounc of appeal have received deserved consideration and I am equally indebted to the able arguments of the learned defence counsel Mr. Tukunjoba. A recapitulation *f the evidence in this case is perhaps necessary. The faces a.re short and straiht-forward. The appellant and the responden.€.'rnet' . andstruk..1OvebëtWeefl them and lived in love together for a periodofyars, Their love was blessed with a chii, the object of these proceedings.. The appellant contended in the Primary Court that he should be given custody of the same. From the available record it could

not be said that the parties did go through any ceremony of marriage - either customary, civil or Islamic. In such a situation the child so born cannot be said to have been in wedlock. ,The parties association can only be as was described i. concubinage association. Since it is on record that both parties agree that the child was orn of them, and therefore the father known then Rule 178 of the Law of Persons G.N. 279/63 applies. This rule provides:- "Children hbt born in wedlock biong to their maternal family i.e., to their mother's father." However if the father of the child is known as is the position in this case then that father has the right to legitimise the child. In deciding this he has two options - 1.3. (1) by marrying the mother or (2) by payment of Shs0 100/= to the girl father before the child is weaned. -2- .\nd as to who has the custody of the child so dealt with as above and as of course provided by rule 181 A an ,B is also provided by rule 181 (c) thus:- "The place where the child is brought up shall be agreed by its father and mother or if they .cannot agree it will be fixed'by the order of the Court. In any case the father shall be responsibleforthe maiitenanceof the chi.d.". In this case •a was contended, by the learned defence Counsel the appellant has not effected legitimation either by the child's mother or by payment of 'Sh's. 10,0/=;.tothe mother's

father. In this event rule 181(c) would not apply and the child remains asprovided by rule 178 quoted above, '" - The appellant contended in ground. No 4 that having stayed tog'e- ther for.8. years the marriage should e'presumed under section 160 of 'the Marriage Act 1971. As wai pointed out this is a rebuttable presumption and as the appellant himself points out the'responde.ntha,ing-derted. knowledge of him in front of her grandfather,. .the'respondent having sent the child home without the appellantts sanction one is tempted .to-co'-- dude that no marriage was never contemplated b' the'parties at all and there is therefore no basis for the presumton. "It isnot:.pnlythe nni- ber of years that matter but also circumstances must show that the 'pa'ti have acquired the reputation 'of husband and, wife. On record I see nothi of the kind. ,-- The appellant: further atgues that the District Court-erred it..,: applying customary law to the sit*tion without regard to the prbvisions of sub-sect10 (2) of -Section 165 of the Marriage Act 1971, With due respect while I do commend the app11ant for , his efforts inthis appeal, but where the law cited is clearly misconstrued and miapplied, this Court has to say so. The above cited .a ving subsection is Pi T to the situation in point. n conclusion and vide }M above grounds this appeal is bounU to fail and it has so failed and therefore dismissed with costs. .. W. KATITI Ag. JUDGE -- • . '