Festo s/o Wilson vs Katiba d/o Abudala (High Court Criminal Appeal No. 359 of 1972) [1973] TZHC 135 (27 March 1973)

(2c jrJ HIGHwUln"91 MI , AT AJiUSHA. • ,.. HIGH COURT CRIMINAL APPEAL NO.359/72 OIGThAL AFFILIATION CAUSE NO. 4/72 of the District Court of Pare District at Same Before C.H. Msamati, Esq., District Magistrate FESTQ. s/o WILSON ,... ... ,. A3PELLAIT. (Original Respondent) • VERSUS KATIBA D/O ABUDALA .... ... DER (Ofiginal Petitioner) JUDGMENT Au. 1913 Bramble, J. This appeal came on for hearing on the 23rd March, 1973 and I allowed it My reasons are now given in writing. A case was brou,ht aainst the appellant under the °'.ffiliatior. Ordinance and the trial magistrate ruled as • - ' f ollops: • I. am of the opinion tat.,the respondent must have been the person who pregnated the petitioner. I therefore cndem hi&to 307= per conth to the petitioner for the prégnance period i.e. from • • 1.4.72 tc the time of delivery 0 • A1D in case of safe delivery, the respondent should pay the petiioner ,hz 50/= per munth towards the maintenance of the child to the time when the c&ild • attains thage of 14 rears, or when the respondent gets married, whichever 'comes first. The petitioner is granted costs of these proceedings The facts are that the appellant, an uwarried woman, • • ;d.. sexual intercourse with the responent on the 8th and lth,Tarch, 1972. On the 24th March, 1972 the respondent J • •• ' iiséd her period and approached the appellant who denied • responsibility. She brought a case against him in a Primary Court which went on appeal to the District Court where it was held that the proceedings were a nullity. This case was filed in the district court on the 20th Spternber, 1972 and head on the 28th September, 1972 at which time the respordent had not delivered a child. Se.2tion 3 of the Affiliation Ordinance reads:- 3. Any unmarried women who ma c, be with child or who may he delivered of a child may (a) •before • the birth of a child • ...................... make application by complaint on oath to a magistrate, with jurisdiction in. the place in which she resides, for a sommons to be served on the man alleged by her to be the father. of the child and if such applicatiop be made before the birth of the child the woman shall make deposition on oath stating who is the f,ther of the child, and subject to the provisions of section 4, such magistrate sha1] 'therr'upon issue a eummons to the person aileéd tD be he fatmr of the child to appear before a magis.xate oi some day to be named in the summons.

Section 5(1) reads:— (Cap.278) After the birth f such child, on the appearance of the person summoned under this Ordinance, or on proof that the summons was duly served on such person or left at his last place of abode seven Ti .E.yS or more before the hearing, a magistrate shall hear the evidence tendered by or on behalf of the person alleged to be the father, and if the evidence of the woher be corroborated in some material particular by other evidence to the satisfaction of the magistrate, he may adjudge the perèo -i summoned to be the putative father of the child, and the magistrate may also, if he sees fit, having regard to all the circumstances of the case, proceed t. make an order on the putative father for the payment to the mother of the child or to any person who may be appointed to have the custody of the child under the provisions of this Ordinance of a sum of money monthly not exceeding one hundred shillings a month for the maintenance and education of the child, and of the expenses incidental to the birth of the child, and of the funeral expenses of the child if it has dies before the making of such order, and of such cpsts as may have been incurred in obtaining such order; and if the application be made before the 1:irth of the child or within two months after the birth of the child, such monthly sum may, if the magistrate thinks fit, be culculated from the birth of the child. The magistrate if he thinks fit may, in lieu of monthly payments, order that a lump sum not exceeding fifteen thousand shillings be paid into court and that such sum shall be expended on the maintenance of the child in such manner as the magistrate may direct. The magistrate may also order thEt a portion of the payments or of any lump sum awarded shall be expended on the education of the child in such school as he may nominate. From this section it is clear that a summons issued under section 3 should not be returnable before the birth of the child in that the magistrate cannot hear the ca.se until after the child is born. The date of an application to a magistrate for a summons is immaterial as far as the date of hearing is concerned.. Since the magistrate heard this case before the birth of the child theproceedings were a nullity. I shall add that there seemed to have been some confusion in the nind of the learned magistrate in the remedies provided Under customary law and those provided in the Affiliation Oidñande. Under the latter the Court can make an order for monthly paym?nt to the mother or guardian for the benefit of the child, for expenses incidental to the birth or for, funeral expenses if the child died before the order. I can see nothing to warrant pament under the broad term of "during pregnancy". Expenses incidental to the birth of a child must be specifically proved and. I do not think that it could include maintenance of the mother. Under Rule 189 of the Customary Law a man who caused pregnancy is responsible for any expenses connected with the pre.nancy and child birth, and even here such expenses cannot be anticipated.

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:r -3-- • I should further add that in waking an order for the • maintenance and education of an illigitiate child the Coux 4 t must take into consideration the means of the parties. There was no evidence to show what the appellant was earning or what were his responsibilities. A father can maintain a child only within his means and this should be the.'uiding factor in assessingthe amount to be granted. The Court must draw out such evidence as would support its decision. As I have indicated above the proceedings were a nullity and the appeal was allowed. :1. ARUSHA 27/3/73 (C E. BRAP:LE) JUDGE /cwm I