19860610 TZHC Dar es Salaam

. . . ltb,-&~ ~C · IN THE HIGH COURT OF TAfJZANIA AT DAR ES SALA.AM (PC) GIVE- APl-'E11L NO. 68 OF 1985 )(FRCI,f TILE DECISIOiJ Qli' 'l'HE DI3·. :\UCT C0~RT OF BAGMIOYO AT BAG.AMOYO IN CIVIL .API2AL NO. 13 OT!' 1984 ) I/I.AIKO I.FfAN.till UL::]; •••••••••••••••••••••••• • •••• APF'JELLANT. Ver:sl:s MAGDALEtilA OJ.ARI ••••.••••.••..••.•...••••••• RESPONDENT Jlf.'.)GEi'-:.iEi'JT MNZAVAS 2 JK •. - The a:::,pello..nt/pldntiff fj_led a sui ~ in Chalinze Primary Court claiming that he was the father of a baby girl born tb the respondent/defendant. After hearing boJch parties the court gave judger:ient ·in favour of the appeEant and.. adjude;0d him the father of tpe girl 1 · Dissatisfied by the decisj_on of ti1e primary court the respondent/ defendant appealed to the district court. Her a 1,peal was upheld and the appellant/plaintiff was declared not to be the father o.f the child. The appellant/plaintiff hns now aP1Jealed to this Court. In the court of first instnnce the appellant told tile court that he started living with tl-1e respondent in concubinage since January 1977 a.ncl that in 1Jovember 1977 the said child was born. It i{2.~_: c1.,lso his evidence that later he, according to Kwere custonary law, paid shs •. 24/= to respondents uncle to legitimize the child. The appellant therefore claimed that he was er.titled to have custody of the ch..ild as lie had legitimized it in accordance ;,i tb Kwere customcq law. The Respondent/ defendant on the other hand c1dmi tted tbat she 1i ved with the appellant in concubinage but, accordin;.2· to her evidence, she starJ;ed living with him in 1981. It was her defence that the child. 11::~d already been born in 1981 .. And was thrG(:; ye2.x:3 old v1hen she started living- v,i th the appellant. She told the lo Jer court ti,d the fatl'.:er of tbe c '-:ild is one, Athuma.ni 1 Hama.nzi, a Mngoni 'cy tr He wit:-: -...c:::o'n see said she coh,1bi ted with from 1976 to 1977 when he left Ba,gn.r,ioyo to his hor,ie in S0;1gr.:"a. !i.ccodirding to her j evidence when the said Atbur.J'.m 1,2ft sho was eight rnont:1s pre 0 nant and that he ·had asked her to t.:;-i VG th, ll,:me of i\1safi:ci to the ey:_Jectid child if ~t ' happened to be a boy c.!.lld the nnme of Zav,adj_ if s};r.., de~:i. v,::-:::-ed to . a bcb;y girl. She argued that s!::2 deli '1erocl ori 2<3/11/77 to a b:3.by -girl nhich she called Zawadi in accordance wi·~l1 t!-.e wisl.te:,; of :lher lover, Athumani Hamanz1, It was her argw;1ent that she has never he.d a child with the appellant~ It was. her evidence that shG w2,s not aware t};,;I:; tbe appelJ.ant had purported to legitimize the child liy paJinJ; sts. 24/= to her U..'1cle •. - 2 - l / The question whether or not the appellant ,·:as entitled to have custody of· the child, Zawadi, is governed by the Customary Law (Decla.rati~n) Order, • .<it]• No. 219 of 1963. Under paragraph 182 it is only the person who is named b:Y the mother as the father of the c;uld that has the right to legitimize an illegitimate child. In the present case the mother of Zawadi, the Respondent, has mentioned one, 1~thumani Hamanzi, as the father of ~WtW-it Under the above-quotted Government Notice it is bnly Athumani Hamanzi who can legitimize the child and claim her custody! I The respondent has ail a1011e; denied appellants claim that it was he who fathered the child, Z-'J.v.radi. In view of the respondent• s denial and the provisions of G.N. No. 279 of 1963 it is clear that the appellant cannot claim custody of the child as he has not beea named by the respondent as the father of the child. On tho evidence the l0arned district magistrate had no alternative but to finu that the appellant/plaintiff had no right to claim custody of th~ child, Zu:;:adi. 'l'he only, ::::,er son who can legi tirnize the child is ;~-chur:iani l-kui1anzi. The appeal accordin.3,ly fails,, The respondent to have her costs L:i. this and the lo:·,er courts. N. s. MJ:Jii\;AS JAJI KI ONGO~I Dar es Salaam 10/6/86 Th;is judger.::ient to :~e recL1 to the parties by cbe District magistrate, :bn:.:;-.,u,10yo.