19760330 TZHC Mwanza

6/ IN THE HIGH COUPT OF TANZANIA AT MWANZA (PC) CIVIL AiPEIN.. 258 OF 1975 (Mwana District Coirt Civil App(2al Nc. 10: b 1972 'Before MUTAKI,'.Esq,, District Magistrate and tjrban Primary Court Original Civil CaseNo. 94 of 1971). MBEGASAIDI 00 0 0 000000 00 000• .APPELLANT Versus.' RAMADHAN KASONGO 0 • 0 0 0 0 00 • •0 00 0 0 0 RESPONDENT JUD.GM..NT MAGANGA, AG. J.: The respondent sued the appellant in Mwanza Urban Primary Court for what amounted to a declaration that be was te lawful'heir to the estate of the deceased Kasongo Shaharii. The trial court., by a majority decision fcund in his favour and declared him the primary heir. The appellant w aggrieved by that decision and he appealed to the district court but his appeal to that court as dismissed, hence this second appeal. There was very little dispute in this case. It was admitted that the deceased Kasongo Shabani was the respondent's natural father and that he lived with and amaintained the respondent as his son. The appellant, who is Kasongo Shahani's brother, however contended in the lower courts, and also contends in this court, that the respondent was an illegitimate child and could not in the circumstances inherit Kasongo's property. It was amply proved that the respondent grew up in the home of the deceased Kasongo and the deceased introduced him as his son to his second wife Mariam (P.W.3) r.nd to Sheikh Iddi Uladi (P.W,2). Mariam looked after the respondent at the deceased's home and she believed all along that he was the deceased's son by a previous marriage. Apart from holding out that the respondent was his legitimate son s the deceased maintained and educated the respondent as such. He even sent him to a irivate school in Uganda and continued paying school fees for him till the time of his death. The two gentlemen assessors who sat with the trial magistrate held that since the deceased himself recognised the respondent as his son and publicly aknowledgcd him as such, the respondent was entitled to inherit from the estate of his deceased father. The first appellate court upheld the trial court's decision but based its decision on Islamic law as proncounced in paragraph 110 of Kitabu cha Nikali - by Sheikh Ali Hemedi El—Buhviy. As stated earlier on, the appellant himself admitted that the respondent's mother was married to the deceased but he coterxded that the respondent was born before his mother's marriage to the deceased. He however totally failed to bring evidence to prove his contention 0 Since the marriage of the deceased to the respondent's mother was not disputed, there was a rebutable presumption that the respondent was a legitimate son of the deceased. Such presumption could only be rebutted by a clear and conclusive evidence that the respondent was not conceived during wedlock. This, as I have said, the appellant totally failed to do 0 The first appellate court was therefore right in holding that the appellant could not disows or challenge the respondent's letim€cX. While it is true that a child born out of wedlock cannotLiE& tate of his putative father, there was no evidence whatsoever to prove that the respondent was not a legitimate son of the deceased. The lower courts should therefore .... .72