OC CASE NO 27 R

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TEMEKE HIGH COURT SUB - REGISTRY (ONE STOP JUDICIAL CENTRE)

ATTEMEKE CIVIL APPEAL NO. 27062 OF 2023 (Originating from the decision of the Juvenile Court of Dar es Salaam at Temeke in Civil Application No 27062 of2024 R.M.W----------------------------------------------------- APPELLANT

VERSUS D.E.M--------------------------------------------------- RESPONDENT

JUDGMENT Last Order: 24. 02.2025 Judgment Date: 12. 03.2025 M. MNYUKWA, J, In most cases, suspicion of extramarital affairs causes chaos in married life. The situation becomes worse when there is uncertainty and queries about the paternity of a child born during the suspicious period of an extramarital relationship by one spouse against the other. The suspicion not only affects the married couple but also the child, who is likely to be psychologically affected by the denial of one parent, which in turn may impact his upbringing. Experience shows that it is rare for a married couple to file an application for the court to determine paternity, as it is presumed that a child born within a valid wedlock is the legitimate child of the married couple. However, when there is disagreement, the law allows a suspicious parent to file an application for parentage for the court to make a i declaration as to who is the biological parent of the child. (See section 34(l)(b) of the Law of the Child Act, Cap 13 R.E 2019). This is what happened in our case at hand, where the appellant (the then petitioner), whose name is entered in the register of birth kept by the Registrar General as a father of the child in question, petitioned before the Juvenile Court of Dar es Salaam at Temeke (the trial court) to declare whether he is the biological father of the child or not. His prayers before the trial

court were that if he were declared the biological father of the child, he should be ordered to assume full responsibility for the child and be granted access rights over the child, as he claimed he had been denied access right by the respondent. Besides, he further prayed that if the trial court declared that he is not the biological father of the child, neither an order of maintenance nor access rights should be issued to him. He also prayed for his name to be removed from the child's name if he was declared not to be the father. The appellant specifically petitioned for the trial court to order the parties to undergo a DNA test to ascertain the paternity of the child. That is to say, the declaration of whether he is the father of the child or not should be made after the DNA test. In brief, the parties in this case are married couple who celebrated their Christian marriage in 2016. They lived a happy married life, and in 2018 their first child was born. It is on record that there was a ■ w matrimonial dispute between the parties, but the situation worsened when, on 1st July 2023, the appellant was forcefully evicted from the matrimonial home by the police. Following the eviction, the conjugal relationship between the parties ceased, as well as the right to consortium. While the appellant was out of the matrimonial home following the eviction, a child alleged to be the

appellant's was born on 23rd April 2024 and given the appellant's name as her father. The appellant did not welcome the child in question as is usually done by a parent when a new child is born. He raised suspicion about the child's paternity, claiming that the child was born a year after his eviction, making it impossible for the child to be his, as he had no sexual contact with the respondent that could have led to the pregnancy. The record reveals that appellant was neither informed by the respondent about the pregnancy nor the birth of the child. The records is also silent if he was given an opportunity to name the child in question. The appellant's denial of the child was strongly objected to by the respondent, who alleged that the child in question belonged to the appellant, as she was born within a valid wedlock. She complained that appellant deserted his matrimonial home after eviction and cut off maintenance for her and their firstborn. She claimed that if the appellant refused to maintain the child unless a DNA test was conducted, she would continue to provide for her child, as she believed it was not in the child s best interest to undergo rigorous procedure of a DNA test. She further added that if the appellant wished for his name to be removed from the child's name, she was ready to follow the requisite procedure for its removal from the register of births kept by

the Registrar General. The record further revealed that when the parentage application was pending before the trial court, there was an ongoing matrimonial proceeding filed by the appellant in the District Court of Temeke One Stop Judicial Centre, seeking the dissolution of his marriage. Upon hearing both parties to the application, the trial court dismissed the application and declared the appellant to be the father of the child. The trial court's decision was based on the fact that the parties were a married couple, the child was born while the marriage was still subsisting, and the appellant's name was entered in the register of births kept by the Registrar General. The above decision disgruntled the appellant, who filed the present appeal with six grounds of appeal, which are as follows; 1. That the Trial Magistrate erred in law and fact by holding that the Appellant is the biological father of the child in dispute, ignoring the fundamental fact that the Appellant works abroad and was illegally evicted from the matrimonial home by the Respondent more than a year before the child's birth, and that a DNA test was the only way to determine the paternity of the child in dispute.

2. That the Tria! Magistrate erred in law and fact by entertaining a defective application that was not accompanied by sworn affidavits from both the Appellant and the Respondent.

3. That the Trial Magistrate erred in law and fact by holding that the existence of the Appellant's name in the birth registration of the child was proof of paternity, while ignoring the fact that the Respondent, as per court records, had conceded that only the first child was the biological child of the Appellant.

4. That the Trial Magistrate erred in law and fact by refusing to grant a DNA test without considering the existing dispute between the Appellant and the Respondent regarding the child in question, and by misdirecting herself in invoking the best interest of the child principle.

5. Thatthe Trial Magistrate erred in law and fact by failing to properly evaluate the submissions of the parties.

6. That the Trial Magistrate erred in law and fact by raising extraneous matters in determining the Appellant's application. During the hearing of the appeal, the appellant was represented by learned counsel, while the respondent appeared in person, unrepresented. Upon the respondent's prayer, which was not objected to by the appellant, the appeal was argued by way of written submissions. I thank both parties for filing their submissions as ordered. I appreciate their detailed submissions; however, for the sake of clarity, I will not reproduce them in full but will instead provide a brief summary. The appellant's counsel opted to begin with the 1st and 4th grounds of appeal. In support of these grounds, he faulted the trial court for 5 MJ refusing to order a DNA test on the grounds that it was not in the best interest of the child. He argued that since there was no conjugal relationship between the parties from March 2023 and, considering that the appellant was forcefully evicted from the matrimonial home on 1st July 2023, while the child in question was born in April 2024, mathematically, there was no possibility for the child to be the appellant's. He went on to state that only an order for a DNA test could determine the child's paternity, which would enable the child to know their identity, siblings, and extended family. He thus prayed for this ground to be allowed and for

the parties to be ordered to undergo a DNA test to establish whether the appellant is the father of the child or not. Submitting in respect of the 3rd and 6th grounds of appeal, the appellant's counsel argued that the trial court erred in considering the presence of the appellant's name on the child's birth certificate as sufficient evidence to prove paternity. He contended that, based on the cardinal principle that parties are bound by their pleadings, the respondent's pleadings clearly indicate doubt as to whether the child in dispute is the appellant's. This is evident from the fact that the respondent was willing to undergo the legal procedure to remove the appellant's name from the birth certificate but was not willing to undergo a DNA test. He insisted that this raised suspicion as to whether the child in question was indeed the appellant's. Furthermore, he argued that the trial • HI court considered extraneous matters by interpreting the intention of the legislature regarding evidence of parentage, relying solely on section 25(a) and (b) of the Law of the Child Act, Cap. 13 R.E. 2019 (the Act) without consulting Hansard to understand the nature of the discussions on evidence of parentage. He thus prayed for these grounds of appeal to be allowed as well. In regard to the 2nd ground of appeal, the appellant's counsel faulted the trial court for hearing the application

without sworn affidavits from both parties. He claimed that the application was defective as it was not supported by the sworn affidavits of the parties, contrary to the Civil Procedure Code, Cap. 33 R.E. 2019, which governs the procedure for instituting and handling civil matters. He argued that the trial court improperly considered submissions from the bar as part of the evidence in determining that the child in question was the appellant's. He, therefore, prayed for this ground of appeal to be allowed as well. When concluding his submissions in chief, the appellant's counsel addressed the 5th ground of appeal, stating that the trial magistrate failed to evaluate the parties' submissions. He claimed that instead of properly evaluating the appellant's submissions, the trial magistrate merely responded to them. He then reiterated his arguments from the 1st and 4th grounds of appeal and, in conclusion, prayed for the reliefs sought in the Memorandum of Appeal to be granted. X7 ) Contesting the appeal, the respondent addressed all the grounds separately, except for the 3rd and 6th grounds, which she combined. Submitting on the 1st ground of appeal, she argued that there were no justifiable reasons advanced by the appellant for the trial court to order a DNA test, noting that even when their first child was born, the appellant was outside the country. Therefore, she contended that

the appellant's claim that he was evicted from the matrimonial home and that there was no physical contact between them for her to conceive and give birth was misleading. She emphasized that the appellant was evicted on 1st July 2023, and the child was born on 23rd April 2024, which falls within the nine-month pregnancy period, mathematically supporting the possibility that the child is his. She added that the allegation that the couple had no physical contact since March 2023 lacked support from the parties' pleadings, emphasizing that parties are bound by their own pleadings. She, therefore, prayed for this ground of appeal to be dismissed. Arguing in respect of the 3rd and 6th grounds of appeal, the respondent submitted that evidence of parentage, as provided under Section 35 of the Act had been proved, since the appellant's name was entered in the register of births kept by the Registrar General. She maintained that the child in question is the appellant's child. She further insisted that she did not concede to the allegation that the child was not • M the appellant's. Instead, she had merely stated that if the appellant did not wish for his name to be used, she would take the legal steps to remove it. She, therefore, prayed for these grounds of appeal to be dismissed for lack of merit. In respect of the 4th ground of appeal, the respondent contended that a DNA test is not

the only means to prove parentage. She argued that, in the present case, there was other evidence that sufficiently established parentage. She further explained that the fact that the child was born while the marriage was still subsisting and that the appellant's name was entered in the register of births kept by the Registrar General, as per Section 35(a) and (b) of the Act, was sufficient to prove parentage. To support her argument, she cited the decision of this court in Muhibu Sefu Mohamed v. Hawa Hemedi Malivata, PC Civil Appeal No. 1 of 2022, which emphasized that DNA is not the ultimate test for proving paternity.She also emphasized that, in the best interest of the child, she did not support the appellant's request for a DNA test to determine paternity. In her reply to the 5th ground of appeal, the respondent reiterated her submissions on the 1st and 4th grounds of appeal and insisted that the trial court properly analyzed and considered the parties' submissions when reaching its decision. Responding to the 2nd ground of appeal, the respondent asserted that the claim regarding the application being defective was a new issue that was not raised during the trial. She further stated that the application was brought in accordance with Rule 56 of the Law of the Child (Juvenile Court Procedure) Rules, 2016 (the Rules) and Form No. 6 attached to the Rules. She added that since

these Rules were specifically made under the Act, the Civil Procedure Code, Cap. 33 R.E. 2019 could not be applied when dealing with such specific matters. In rejoinder, the appellant's counsel primarily reiterated the arguments made in his submissions in chief. He maintained his stance that the appeal should be allowed, the trial court's decision set aside, and the parties ordered to undergo a DNA test to ascertain whether the child in question is the appellant's. After considering the available record and the submissions of the parties, the main issue for determination is whether the appeal has merit. In addressing this issue, I will begin with the 2nd ground of appeal, as it concerns the propriety of the application filed in the trial court. If the answer to this ground is negative, I will proceed to determine the 1st and 4th grounds of appeal, as they are interrelated and constitute the central issue of dispute that is whether the trial court was justified in refusing to ■ IM grant an order for the parties to undergo a DNA test to prove paternity. If the 1st and 4th grounds are also answered in the negative, I will then proceed to determine the remaining grounds of appeal accordingly. Before I embark on determining the appeal on merit, it is crucial to clarify that this is a first appeal, where this court acts as a re-hearing forum by evaluating the evidence on record and

reaching its own analysis and conclusion based on the available facts. (See the case of Tom Morio Vs. Athumani Hassan (Suing as the administrator of the Estate of the late Hassan Mohamed Siara & 2 others), Civil Appeal No. 179 of 2013 CAT). With regard to the appeal at hand, as I have earlier stated, I will begin with the 2nd ground of appeal, as it goes to the root of the matter. As it is well settled, courts are obligated to determine matters that are properly before them, which is why different laws, rules, and procedures govern the institution, hearing, and determination of cases in a court of law. In this ground, the appellant's complaints are twofold: First, the trial court was not properly moved. Second, there was no evidence tendered before the trial court to prove the facts stated in the parties' pleadings. The appellant thus argued that the trial court erred in relying on unproven facts, which were not supported by evidence. In addressing this issue, I have scrutinized the application filed by the appellant, who instituted the petition for parentage before the trial court. The petition was brought under Rule 56 of the Law of the Child (Juvenile Court Procedure) Rules, 2016, and followed the format set out in Form No. 6 in the Third Schedule to the Rules. Therefore, as per Rule 56, the petition was properly filed in accordance with the law. Consequently, the

appellant's argument that the application should have been made by way of chamber summons supported by an affidavit is misconceived. Furthermore, if the trial court mistakenly ordered or requested the parties to file a counter-affidavit, it was merely a clerical or procedural error (a slip of the pen). However, no counter-affidavit was actually filed, as the respondent properly filed a Reply to the Petition, and the trial court proceeded to determine the matter on its merits. Further to that, regarding whether the facts were proved or not and whether the trial court considered submissions from the bar instead of evidence, I have revisited the parties' pleadings filed before the trial court to assess the facts alleged to have not been proved due to the absence of tendered evidence. With due respect, I find this argument to be misconceived as well, considering the cardinal principle that parties are bound by their pleadings. It is without doubt that some facts in the parties' pleadings were not disputed. These facts include that the parties in this case are a married couple, that the child was born while the marriage between the parties was still subsisting, and that the appellant's name was entered in the register of births kept by the Registrar General. According to the pleadings, it was the appellant who asserted these facts by attaching the marriage certificate and the birth

certificate of the child in question. These facts were not denied by the respondent. Therefore, in law, these facts are considered proved, and there was no need to call for further evidence. For that reason, the appellant's complaints are an afterthought and are bound to fail. Thus, this ground of appeal lacks merit and is hereby dismissed. Coming now to the 4th and 6th grounds of appeal, the appellant's grievance is based on the trial court's refusal to order a DNA test, reasoning that evidence of parentage had already been proved under section 35(a) and (b) of the Law of the Child Act. For clarity and better understanding, let me reproduce the full text of section 35 of the Act. The section reads: 35. The following shall be considered by a court as evidence of parentage- a) any marriage performed in accordance to the Law of Marriage Act; b) the name of the parent entered in the Registrar of Births kept by the Registrar General; c) Performance of customary ceremony by the father of the child; d) public acknowledgment of parentage; or e) DNA results. Surely, the appellant does not dispute the subsistence of the Christian marriage between him and the respondent at the time the child in question was born. He also does not dispute that his name is entered in the register of births kept by the Registrar General. In fact, these are some of the factors the trial court considered as

evidence of parentage. What triggered the appellant's concern, forming the basis of this appeal, is his belief that the child in question is not his. His reasoning is that the child was born after his forced eviction from the matrimonial home. He claimed that since the eviction, he had no physical contact with the respondent, making it impossible for him to have a second child with her. He, therefore, made an application specifically requesting the court to order a DNA test to ascertain whether the child is his. He does not believe that the mere existence of the marriage and the entry of his name in the register of births kept by the Registrar General suffice to prove paternity. The appellant's prayer and argument were strongly disputed by the respondent, who claimed that the child was born within nine months, which is the normal gestation period for a child to be born. She admitted that the appellant was evicted on 1st July 2023, and the child was born on 23rd March 2024. From the above, it is clear that there is a disagreement on whether the appellant is the father of the child in question While the respondent believed that the child in question is the appellant's child, the appellant denied this, citing his eviction from the matrimonial home and the fact that he did not have physical contact with the respondent. Therefore, he maintained that, at any rate, the child cannot be

his. To ascertain the appellant's claim, I have revisited the parties' pleadings. As rightly stated by the respondent, the pleadings reveal that the appellant was evicted on 1st July 2023, and the child in dispute was born on 23rd April 2024. Mathematically, the child was born within nine months, which is normal. Therefore, the assertion that the child was born a year after the appellant's eviction is unfounded, as it is not supported by the parties' pleadings. In addition, the claim that the respondent became pregnant between March and June 2023 is also unfounded, as it lacks proof from the parties' pleadings. Nevertheless, despite the above facts, the circumstances prevailing in the case at hand make it unsafe to rely solely on the evidence of parentage provided under section 35(a) and (b) of the Act. In order for justice not only to be done but also to be seen to be done, a DNA test is inevitable. This is because the appellant's ■ arises from the time he doubt$ left the matrimonial home and the time the child was born. Although the birth occurred within nine months, he does not believe that the child in question is his merely because of the subsistence of the marriage with the respondent and the entry of his name in the register of births. Admittedly, it is true that paternity can be proved by the parties' marriage contracted in accordance with the Law of Marriage Act, Cap

29 R.E 2019 and by the entry of a parent's name in the register of births kept by the Registrar General. However, these are not conclusive proof of parentage, considering the circumstances prevailing in the case at hand, where the appellant denied that the respondent was pregnant at the time he left the matrimonial home. This suggests that the appellant was not aware that the respondent was pregnant. What is more surprise, even the respondent was not aware of her pregnancy at the time, as she did not communicate this news to him before he was evicted. This supports the appellant's submissions before this court, where he stated that after his eviction from the matrimonial home, there was no communication between them. Subsequently, when the respondent realized she was pregnant, she did not inform the appellant due to the misunderstanding between them. The respondent continued to remain silent throughout the entire period of pregnancy and even after the birth of the child, as this fact was never communicated to the appellant. It was only after the appellant realized H1 that a child had been born while his marriage was still subsisting that he initiated the parentage application. It is my humble view that, any reasonable person would have doubts regarding the paternity of the child under such circumstances. Therefore, the course of action taken by the appellant in seeking

to ascertain paternity through legal means can be regarded as reasonable and justified. My mind is settled that, given the circumstances of this case, a DNA test is the only means to conclusively determine the paternity of the child. DNA testing provides scientific proof that can confirm whether the appellant is the biological father of the child in question. I do not believe that ordering a DNA test at the child's current age would be against the best interests of the child, especially since the child has had no bond with the appellant, as he has not had access rights to the child. This implies that the child does not know his father. Therefore, my position is that a DNA test must be conducted to provide certainty as to whether the child in qestion is the appellant’s. This would enable him to assume full responsibility over the child and enjoy his rights as a father. It is my respectful view that, considering the prevailing circumstances, the trial court erred in refusing the appellant's prayer for a DNA test to be conducted to determine paternity. Thus, these grounds of appeal have merit, and I allow them. Now, considering the nature of the matter, these grounds dispose of the appeal, as the remaining grounds naturally lapse. I therefore set aside and quash the Ruling and Orders of the trial court, which had declared the appellant as the father of the child following its

refusal to order a DNA test. As to the way forward, I hereby order that the case file be remitted back to the trial court, directing it to order a DNA test to be conducted and thereafter compose a new Ruling based on the DNA test results. In the event, I allow the appeal to the extent explained herein. No orders as to costs since the parties are spouses. It is so ordered. Right of appeal to the Court of Appeal fully explained to the parties. Court: Judgment delivered on this 12th day of March 2025, in the presence of the appellant's advocate and the respondent, through virtual court.

JUDGE 12/03/2025 18