19770507 TZHC Tabora

IN THEH±GH COURT OF TANZANIA

AT MWANZA (PC) CIVIL APPEAL NO. 112 OF 175.. (From the decision of the district court of Kahama -at Kahama in Civil Appeal No.2 of .1975) TABU S/O IBULA APPELLANT versus MILEMBE D/O KULIMA 1ESPONDENT 3 U D .G E N E N T SISYA, 3: C) C] The appellant, TABU IBULI, married the respondent, MILEMBE KULIMA, apparently under customary law.. They lived together for two years and during thet.third year the respondent - returned to her fathhr's home because she was suffering ffom sw 9 llen legs. While she was at her parents home the appellant visited her five times. He tried to take her bck• t their rnat$imonjal home. but she refused 0 . Meanwhile she intimathd to him that she had. missed her monthly period. Tht was o in January, 1974 It seems. round about the.same month the respondent's father, Kuiwa Mandama, returned fouteen heads' of cattle, cash shs.550/= and four goats which were dowry to the appellant who received, the same. This was dcthe -. before the local chairman, one Manyanda Bundala, and one Mdasa Mazuri. Both these gave evidence at, the trial. The appel1nt then annoi,inced there and then that the respondent had.his one month old pregnancy. The respondent was asked but she denied that she was. pregnah In September, 1974 the respondent gave birth to a baby boy. When he heard aboit the birth the appellant, during that. very month,. bought some clothes, oil. and towel.. He took

these to the respondent but the respondent'. father chased him away claiming that the child was not his. He then filed a suit in Busangi Primary Court claiming paternity of the child, . The repondent in her evidence at the trial told the trial court that the child belonged to one Peter Lugaila who was her lover. Ptr himself who shamelesslyappeared in the trial court as ' witncs 'n the rsp:ndnt' s side tc:1d €h court in r - 7. I. - 2 - told him that she was pregnant, In October, 1973 he received information that she had deliveredâ baby -. He then went to see her and gave her some clothings for the baby. The Primary Court in its unanimous decision found that the child belonged to the appellant and accordingly awarded him paternity. However, since the child was then only four months old the respondent was awarded 'custody until' such -time when it will be sifficiently grown ujDto be taken by its father. The respondent appealed to the District Court hichthen reversed the decision of the Primary Court. In his judgement the learned District Magistrate was of the view that since there was no evidence of the.narne whichthe respondent gave as being that of the fothe'-of her child in the Ante natal Delivery Register. The learned District Magistrate went on - -- to direct himself as follows and I quote from his judgement:- "Pili ina'waje kUsema. kwiupd'wasiwas'i mkubwa

kwaTnba mimba.ya-mtoto huyô BI. Milembe alitoka nayO kwa mjibu rufaa - ukitazama - znuda ulioukiii hatá' mrufani mwenyewe kwarnba - - alijifungua baada-. ya miezi rninane kupita tangu aondoke nyumbani - kwa Tabu, hata hivyo Tabu hakuweza kuleth usha1idi kukanusha dai la - mrufaniwa kwamba mimbahiyc allpewa na Peter ná siyo yeye na kwahali hiyo usemi we mrufáni Mil'embè hauna budi kukubaliwa kuwa ni wa kweli (Taama pia fungu la 183 la Sheria zinäzohuzu hail ya watu G.N.279/63." With respect it Is cleafrm this passaçe that the learned District Magistrate misread the record of prdceedings In. the trial court and it also contãins-serioüs-'misdirection on the' relevant law applicable. It is clear on the evidence of the appellant as well as that of chairman. Manyanda Bundala and the respondent's father, 1ulwa Madama, and even the respobdenthersèlf that at the time the dowry was being refunded to him he, appellant,. di."rinounce that the respondent was one month pregnant. Indeed the evidence shows that when asked about thisthe Fepondént denied. Nevertheless the apel1ant-pointed out that this was intimated tb him by the respondent herself. I' tke judicial notice ofthe fact that a one month 21d pregnancy'is not readily detectable except with the cooperation- of the - carrier. I also take judiàial notice of the fact. that the normal period of gestation jn hin-tan beings is nine months. -

It is common knowledge that the respondent gave birth to a ba'by bby in September, 1-974. If ther&was - i t upor t - c' r- t s t'rv t't i J. -iry1 i974 - - In short it is not correct, thoreforo, to 5ay that the app1li. did ro:. id'c v&'nc t ontr.c t'e respondent' allegaion that it was ?etzr who rrade hr pçnarL. The material fact to bear n mind here is that at the time of conception the rospondnt ws still thc legal wife of the app j .c:cn to r r'ntarous association with Peter notwithstanding; the appellant would at any rate# in the cirrrnstanccs ? .preumed to be the father of the child born to the respondent in September, 1974 This pesumtion Is made as a matter of public policy, udertken, to safeguard the sanctity o marriage. If I may go further the learned District Magistrates reference to section 183 of the Law of Persons 2 G.N, 279 of 1963 was a serious misdirection because that scction (s0183) deals with Unm-ried girls or woreri which the respondent was not. The rcicvn in Ithis case is section 175. In the final result I,wi.. Lnd ylf in agreement with t1 unanimous vie ôf the Prrnary Court. I also ajgree that in vicw c the tendar • ge of thc i child the respondent will reiain with its üstcdy and noanwhi.lc the 4pellant will pay for its expenscs. However vb:n the child rcrches tha age, when he is able to go to school he should gz to 1iV.e.wih hisfather, the appellant. mis apbeal is, therciore a1lod. I, however, make no order as to cc H. E. D.. SIS.Ylt, JUDGE 7/5/77 ORDER. .hib uc err,_: t'1 and sent to the District tstrto 1ahama, for del'r ThBORA H. E. D.SIYA 71W 7/ JUDGE /