Court name
High Court of Tanzania

Pundi Ilanda vs Alli Kwimba () [1985] TZHC 40 (29 November 1985);

Law report citations
1984 TLR 55 (TZHC)
Media neutral citation
[1985] TZHC 40
Coram
Lugakingira, J.

  G Lugakingira, J.: The appellant commenced action in the Primary Court claiming 12,000/- in compensation on the allegation that he had maintained the respondent's deceased brother's four children for twelve years. In the course of his testimony, however the appellant came up with a   H different claim, namely the children themselves. The trial court took notice of the discrepancy but ignored it and proceeded to award the appellant the sum claimed. It held, however, that the appellant maintained the children for eight years, that being the period he had cohabited with their mother.   I From this decision the respondent successfully appealed to the District Court and that prompted the present appeal.

I think the District Court rightly reversed the decision of the trial court. As the record perfectly  A indicates the appellant abandoned his claim and came up with something different. There was no evidence on the claim as such which then ought to have been dismissed. It is however provided in the Primary Courts Civil Procedure Rules for a claimant to alter the nature of his claim at the hearing.  B On the contrary, rule 44 which provides for settlement of issues at the first hearing implies necessarily that a claimant is limited to the pleadings. The District Court was therefore justified in its action for the irregularity was not a mere technicality which could have been ignored. C
There are indications, indeed, that the irregularity occasioned a failure of justice. Before the District Court the appellant indicated that none of the four children was aged over three years. Now, it is impossible to maintain a child for twelve or even eight years if it is aged three years. The trial court  D thus proceeded perilously in the absence of relevant evidence. I had the advantage of seeing and hearing the appellant. He is old and confused. Unfortunately, that does not entitle him to gratuitous judgments.
The appeal is dismissed with costs. E
Appeal dismissed.

F