Jacob Mwangoka vs Gurd Amon [1987] TZHC 47 (15 December 1987)


Mroso, J.: This is an appeal against the judgement of the District Court of Mbeya.  The appellant had obtained judgement in his favour from the Primary Court of Mabatini in Mbeya Municipality but the respondent successfully appealed to the District Court against that decision.  The appellant has come to this court to ask that the decision of the D Primary Court be restored.
The appellant is the father of a girl called Sabeta who is now aged a little over eighteen years.  This girl has a baby who was born almost a year ago (on 30/12/1986).  Sabeta claims that the respondent who is now nearly twenty years of age is the father of her baby.  At the time Sabeta was made pregnant - during the early months of 1986 - she E was in Form II at Mbeya Day Secondary School.  The respondent was in Form III at Sangu Secondary School.  Because of the pregnancy Sabeta was discontinued from school.  Her father - the appellant - filed a suit in the Primary Court claiming F compensation in the sum of Shs.20,000/= made up as follows:
School uniforms
Fare to and from school
School fees
G 840.00
Exercise books
H 5,000.00

The Primary Court found as a fact that it was the respondent who made the daughter of the appellant pregnant and therefore liable to pay the compensation as claimed. I
In reversing the decision of the Primary Court the first

appellate court held that the claim was not adjudicable in the Primary Court because it A was under the law of tort and that Primary Courts have no jurisdiction to try tort cases.  Secondly, that expenses incurred by a parent in educating his child cannot be sued for in court if the child's education is terminated as a result of a pregnancy.  Thirdly, that in any B case a parent has no cause of action against a man who fornicates with his daughter, whether or not she is made pregnant.
The appellant has felt deeply aggrieved by the decision of the District Court.  He argues with bitterness that if the law of tort does not recognise the right of a father to claim C damages against a man who fornicates with an unmarried daughter, Nyakyusa customary law recognizes such a claim as valid.
It is not quite clear to me what the District Court meant by saying that the appellant's claim was "under the law of tort" and that a primary court had no jurisdiction to entertain D it.  We know that there are torts which come under customary law.  Under Section 18 (I) (i) of the Magistrate's Courts Act, 1984 a Primary Court has jurisdiction in all proceedings of a civil nature where the law applicable is customary law.  Indeed, under paragraph 190, Part IV, First Schedule of the Law of Persons, G.N. No. 279 of 1963 E (which was applied to Mbeya District by G. N. No. 436 of 1963) it is provided that a father is entitled to compensation of not less than shillings 100/= against a person who makes his daughter aged under twenty one years pregnant.  If a parent has such F entitlement it means that he can sue such a person in a Primary Court.
In the case under discussion the appellant sued for, inter alia, what he termed "kunitia aibu", which would appear to come under paragraph 190 of the first schedule to the Law of Persons, cited above.  Shillings 5,000/= was claimed under that item and the trial G Primary Court accepted and allowed it.
This court has on several occasions approved of the right of a father to sue for compensation in a situation similar to the present one.  For example in the case of Mpapayu v Tusiliwa [1972] H.C.D. n. 229 Kwikima Ag. J as he then was said: H
   The Declaration of Customary law allows fathers (to obtain) compensation from those who made their daughters pregnant.
The learned acting judge must have had in mind paragraph 190 of part IV of the First I Schedule to the Declaration of Customary Law, G.N. No. 279 of 1963.

As for the claim to recovery of expenses incurred by the appellant in educating his A daughter Sabeta up to the time her education was terminated by the pregnancy, I would agree with the first appellate court that the appellant cannot recover.  The expenses were not wasted, Sabeta got her education for as long as she remained in school and that education did not vanish merely because she became pregnant.  The pregnancy may B have denied her the benefit of possible further education, but that could not justify the claim of shillings 15,000/=.  As Said, J. as he then was, said in the case of Halfani Saluum v Halfa Kondo [1967] H.C.D n. 181 in which a parent claimed damages for C the expenses she incurred in educating her daughter for six years:
   The claim does not disclose a cause of action as presented because it is the duty of a parent to educate his child.  The expenses incurred for that purpose cannot be claimed for the child's D education being cut by intervening circumstances.
The question now in this case for consideration is whether it was the respondent who made the appellant's daughter pregnant.  The girl Sabeta named the respondent as the E culprit.  The respondent denied it.  But was that enough for him to escape liability?  Under customary law it was not enough.
Paragraph 193 of the Law of Persons, GN. No. 279 of 1963 provides as follows: F
   Mwanamume ambaye ametajwa na mwanamke (asiyeolewa) kwamba ndiye baba wa mtoto hana budi kumkubali kwamba yeye ndiye baba wa mtoto ila akiweza kuhakikisha kwamba hakuzini na yule mwanamke. G
This paragraph puts the burden on the man to prove that he did not have carnal knowledge with the woman.  The respondent did not discharge that burden.  As it turned out the trial court believed that it was the respondent who made Sabeta pregnant.  On the evidence it was open for the court to reach such a finding and I am not about to H disturb it.
In view of my earlier decision that a parent can claim and obtain judgement for compensation against a person who makes his dependent daughter under the age of 21 years pregnant, the remaining question now is whether the claim for Shs.5,000/= can be I allowed.  The trial court allowed it.  The respondent did not and

has not before me suggested that the amount was excessive. I for my part do not A consider it either excessive or unreasonable.  I therefore uphold the decision of the primary court regarding the award of shs. 5,000/= as compensation.  Therefore, the appeal succeeds to that extent.
The amount which had been claimed in the whole suit was shs. 20,000/=.  I have B allowed only a quarter of it (shs. 5,000/=).  Corresponding to that only a quarter of the appellant's costs are allowed in this court and in the two courts below.
C Order accordingly.


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