19741104 TZHC Arusha

.',00. : L•L• - T i±L SHIi -- APPELLATE JURISDICTION /0 -: 0 RICH CoLRT CRIMIr\L LPPEI-.L 110 170 OF 1974 j C/F CROSS APPEAL NO. 246 OF 1974 ORIGINAL AFFILIATION CASE Ifl. 9 OP 1970- OF THE DI.STRICT C)UPT OF KILI?1APJ RO DISTRICT J-T 'E Before:-.- J. J.M. MA.CKANJJ, Esq.,. RESIDENT MAGISTRT ~ JACOB ABEDNEGO ELISi .......... . .......... APPELLANT (Original Respondent) versus C0NS3LATY 'flMAN MASAWE - ..-.- ....... RESPONDENT 0 (Original Appellant). 0 0-, --- '•, -: - JUTh1VtENT 0 Jonathan, J. 0 - The applicant, Miss Consolota R. Ma ssawe-, filed affiliation- proc?edin;s in the Distict Court to -get the- repoident, Jacob A. •Elisa, daQlared the putetive fathe± of an innarned child of th applic.ant and ord3red to pay maintenance. The Di' -triat Court allowed the application and ordered thp respondent t pay shs.l0Q/ monthly towards the maintenance-of the child. Prom this decisIon the present appeal has heen brough-t -. There is also a cross—appeal filed by the applicant through her advocate, but first the appeal. For the purpose of both the original descriptions of the parties are retained..- - There is no dispute that the applicant the 'aged about 0 nineteen was delivered of a baby boy on October 12th,, 1970. According to her the child was sirred by the respondent;. It was however the resp.ondentts case that although he -knew her - there- had never been any love relationship -heween them. It - is agreed that the applicant at the material time was a kitchen hand at the National College -of Education, Si•na Ch-ini,- of which the respondent was the vice—principal. She claimed in her evidenc.e that, they became .frieridsin the month,.. of Aust, 1969 af-ter the respondent--had -promised to try to get .ier admitted to a Teahere' College and that, on the nibof Sat'urday 17th. - Jan-iary, 1970 at the respondent.'s house L had sexual -intercburse with,her, from which the pregnancy resulid. She -produced - a- photograph àf the redpondent and three love letters which she said he had written her. The respondent in his, evidence denied 'giving hC'thephotographandallOged she had oJen it-from .tIeCólIege Staff roo- This was, however, rejected by the trial cdurt..., As regards the letters the learned, resident agis±'a-te place d. no reliance on them, apparently because there wa.ro proøf1.hCt they had been written by the r'espondent. These ,1èttrs, all .handwritten after the conception, are ehibits and this court is ent±led to have a view of them and reaCh itsown finding. - - -_ - - . . . ........ * *12 There is in addition 9 another hand—written documentary exhibit Ex "A") which the respondent admits ii have writte , to which further refe±ence wilT:'be umade prsently. Now, the handwriting in all the three letters appears even at first glaca to be 'identical: to that of 'Ex."A, and clearly it was very unlikely in the circumstñds that they were written 14Y.. a person othe'rthan the rspondent. That shovid have added considerable weight to the applicant 's clim that the reondent had bvngreat deal of affection towards her. One oftheeeletters is ,ated Februa.xy 24th, 1970 and it was proposing another meetin with the applicant at the same venue, presumably;forsexualJnter'eourCe. - It ws her further claim that, uponrealising she was pregnant by the respondent she informed him and that he promised "to do something aboutit." whateverthat was. In the event, she says, he did. nothing, and on September, .15th, 1970 she and her mother complained to the College Frincipal Father Ludovic. The respondent 'upon being called.before"him appears to have admitted responsibility when hewrote'EX.'I I A I to the effect that, should the baby to be bo'rn have his resemblance b.c would pay towards its maintenance. The respondent., as'already noted, admitted writ'ng the exhibit. He explained, however, that he had been coerced into writing it. There vas no basis dclosed for the Principal o compel him to write it if in fact the respondLnt had o no sexual interceurse with the apjlicant, and I am satisfi the ,allegat ion that he was 'forced to make the document or that:h'e wrote it under protect was rightly rejected by the trial court. ' There wasthen evidence that, when about a month later the child, was born the reapondent went to ccoopanied by Fr Ludovic and P J' 4 The Church minister cia not give evdenc but P W.4 tcstCied in sgrceront with the applicant and her mother that the reap ondent 'found the 'baby to have' hts reembJsnce and iromisd to pay, s.1001= morthly for its maintenance This he rover pid The respondent's faaily was living about 11 miles away and an week.,ends he would .be.away tQ. join his famil/ there..' It 'was his cont.rtion,thereforc , thot he did not have sexual intercourse with the applicant on Saturday lth as he was then away, to see his fail ddi±ional1y, n said, he had taken his,.l:eeai'e: on the previous day and he.'did not rethrt until: Januar-y"23rd The'lower cqurt in its judgment, did. not'advert specifically to thse reprosenta ions It sems to me, howvcr, that they would not have made much impression oven if, the, court had had regard to 'them aiid that it would have come to the same coaclhsion. The. case fr the applicant was sthong and all indications were clearly that the respondent was resonstble for the pregnancy. This despite the r'bspondent's allegation that the applicant had been a woman 'of 1 ooee ,mhral R. Accord,ingly,' the appehl.' is dism'ised. ' . .. • .•. ••.•.'.'.'.. . . I The cross-appeal'relates to the effective date of the order for maintenance, the costs of the proceedings and to expenses incidental to the birth.. As regards this last there was io evidence upon which the court. could have ordered the respondent to pay h:.5OO/=as expnses icidental to the birth which the applicant had incurred. The learned magistrate undoubtedly through over-sight, did not state the effective date of the order for maintenance. In general, the e'fective date of such order is that of the birtof the child. In the present case there appears no ground for not so ordering. Accordingly, the order is to have effect from October 12th, 1970 The trial court made no orderfor costs either. .This too, would appear to have been due to oversight. The costs canzot be resited and the applient is to have her costs. These shall be taxed by the District Registrar. Accordingly, the appeal is dismissed with costs, t'o be taxed. The cross-appeal is allowed to the extent already shown but I will make no order for costs in this rcspect (p. M JOIJTHA1) JUDGE. 4/11/74: Coram P. M. Jonathan - J. Mr. Ji S. Fatal not present; though notified. Appellant present. Judgment delivered /MTPM. (P. M. JOIATHAN) JTJDGE. 4/11/74