Court name
High Court of Tanzania

Chacha Malima vs Mwita Kitogo () [1985] TZHC 1 (01 January 1985);

Law report citations
1986 TLR 117 (TZHC)
Media neutral citation
[1985] TZHC 1

Katiti, J.:In Musoma Urban Primary Court, Chacha Malima the appellant herein sued Mwita Kitogo hence the   H respondent, claiming a female child, from the latter party, founding the claim on the alleged legitimisation of the said child, by payment of eight heads of cattle, upon marrying the child's mother.  The Primary Court was unanimously of the view that as the child was never fathered by the appellant the question of legitimatization did not arise.  They instead ordered  I that the appellant be compensated

  A sh.8000/=.  The respondent successfully appealed to the District Court, which allowed the appeal on two main grounds, namely, (1) that while the appellant had in law been entitled to legitimatize the child by payment of cattle, his demand of, and being refunded the same derogated from his claim, and therefore he ceased to have any rights over the   B child, and (2) that, as the appellant deliberately and voluntarily entered into a marriage relationship with the respondent's daughter, who at the material time had a suckling baby, he assumed the responsibility of maintaining the child, the liability for which could not be attached to the respondent in the absence of evidence, or agreement for so doing.  The District  C Court disallowed the compensation.
The appellant has appealed to this Court, against such a verdict.  The facts of the case, fall within a narrow compass.  The appellant Chacha Malima amorously fell into the embrace of the respondent's daughter, who already had a baby  D daughter, by some other man, and decided to marry her.  The respondent's daughter had a suckling female baby, and with such full knowledge, the appellant married the respondents daughter who because of the extreme infancy of the child, had to go with the baby to matrimonially live with the appellant.  It was claimed by the appellant, that what was  E agreed upon between him and the respondent, was that the appellant pay twelve heads of cattle as bride price, and eight heads of cattle as child legitimisation payment, the latter part of evidence being denied by the respondent.  It is all the same undisputed that, the appellant only paid eighteen heads of cattle.  The wear and tear and corrugations of marriage  F having intruded into the marriage irreconcilably, the appellant and the respondent's daughter parted and were divorced.  The appellant was refunded all the bride price he had paid, but he still wanted the child founding his claim on the claimed legitimization of the said child. G
This appeal does in my view raise two issues that serve to dispose of the appeal.  They are (1), whether a man, not a father, nor named as a father, has competence to legitimate an illegitimate child, and acquire legal paternity.  And (2),  H whether the Primary Court was entitled to award compensation for the upbringing of the child for three years (1981 - 1984) an aspect that was not pleaded, and disallowed by the District Court, but still being harped upon in this appeal, by the appellant.  The first issue, it seems to me seeks the application of the provisions of Rule 181 A and B, of the  I Customary Law (Declaration) Order 1963, G.N. 279/1963.

  A According to the provisions of Rule 181 A and B, of the Customary Law (Declaration) Order 1963, there are two ways, either of which may serve to legitimate an illegitimate child, but each being tied to one constant common denominator condition precedent, and that is, it is the father of the child, whether named by the mother, or is acceptably  B the natural father, who may legitimate the illegal child - (1) by either marrying the mother, or (2), without marrying the child's mother, by paying Shs.100/=, which may also be in kind, to the child's mother's father; - the condition precedent, in either way, being that he must be the father of the child, either, as named by the mother, or as commonly accepted as the natural father.  I seek support on one of the ways, under Rule 181 B of the Customary Law (Declaration) order 1963  C from the case of Hamis Ungaunga v Omari Said [1973] L.R.T. No. 37, which held that, it was the father of the child born out of wedlock, who could legitimise the child by payment of Shs.100/=, if he does not marry the mother.  In this case, the appellant was never the father of the child, nor, did he try to assert himself in that direction, and had  D therefore no competence to legitimise the said child, and to allow an extension of this rule, to allow any man to acquire children, on just payment of cattle or cash is to introduce child purchase which would be repugnant to our system and  E jurisprudence.  I would therefore and hereby, dismiss the appellant's claim on this aspect.
The second issue, is about the compensation aspect for upbringing the child.  This was unpleaded, but conceived by the Primary Court and disallowed by the District Court on appeal.  With due respect to the Primary Court, the compensation issue was never pleaded, nor otherwise demanded in the course of adducing evidence by the appellant.  Thus not only  F was this offensive of the rules of pleadings - see rule 15 of the Primary Courts Civil Procedure Rules, and not only did the element of surprise, deprive the respondent the right or reply thereto, but the figure was also arbitrarily fixed, in favour of  G the appellant.  The trial Court, should not have gone out of its way to consider what was not pleaded.
But, even if compensation had been pleaded, and was an issue, it seems to me, the same would raise demanding   H questions.  First, it seems to me that where a man decides and marries, a woman who is suckling an illegitimate baby by another man, and takes both of them, because essentially out of love and affection for the mother, he has thereby voluntarily assumed the responsibility, and when the marriage is shattered beyond repair and the child is taken away  I , there cannot be the basis for liability of the father-in-law, in the

  A absence of customary law, or contract to that effect, and such we do not have.  Second, for quite a while, the baby is suckling its mothers' milk and how to quantify that milk and computerise the same into cash and apportion the same into refundable labour to the appellant is very difficult.  Third, the child's mother's work, care and, contribution, etc, for we   B know rural women are the chief producers of food and cash crops, and chief carers of children, and it would be, difficult to quantify into monetary language, and show how great or greater was the contribution by the appellant.  Unfortunately during the heat of love such consequential details are never worked out.  From the above, it seems to me, compensation  C under the circumstances, must have been pleaded, and strictly proved, and basis for liability established.  In this case it was not, and the District Court was right to disallow it, and it is by this Court equally disallowed.  The appeal is hereby dismissed with costs.
D Appeal dismissed

E