Sivester Chjinga vs Agnes Achura (PC Civil Appeal No. 12 of 1990) [1990] TZHC 330 (27 November 1990)

•. IN THE lllGH COURT OF T.llWli1li AT M'.!"!fAM PC CIVIL APPEAL NO. 12 OF 1990 : MlSASI DISTRICT COURT CIVIL APPFAL NO• 5 C1F 1990 ORIGINAL lillANDA PRIMARY COlJRT CIVIL CASE NO• 2 . OF 1990 SILVESTER Clil.TINGA ••••••••••••• APPELLANT t'' ·~ . . ,,,

• --, .. · ve):sus: AGNES ACHURA ••••• ,. , • •·• • • ... • • , •• RESPON"DmT The respondent successfuly sued the appellant in the Primary Court at Nd.and.a. for maintenance of her child whom she alleged to have been sired by the appellant. The appellant appealed to the District Court and the District Court apheld the decision. of .f: 1 :1 · .... ••• .,.,..,,,7 Court. Be is ai,pealing to this Court against :he decision of the Courts below. The Law as to· the type of this case is clear and settled. In the case of . .""'AS e/ o PAUL V,. CHRI5'TINA d/ o LEIYA ( 1968 BCD No •. 488) whose £acts appear to the same as in the presem; case Platt. J. considered para.graphs 18} to 189 of th.e Government Notice No. 279 of 1963 and then aaid:- 11'l'he combined effect ol these para.graphs is that where a woman names a ma.n as being the .rather of her child, he may not deny partenity '1Dl.ess he proves that he had no intercourse with the woman. This . . ruJ,e still holds good even if the wo had more than one lover. :Out if' the man can produce evidence that he never bad ex.ual intercourse with the woman, then the burden falls on the woman or proving her assertions by adc':ucing detailed evidence•" The same rule was applied in the case or KIMOLO v, WILFRIDl (197g,) HCD No, 8Q I and GADI ATHUMANI v._ELINATI. AMINIEL (1922) BCD No, 19l. \ The issue is whther the appellant had established that he never had sexual intercourse with the respondent. ! do not think that he has done that. There was the evide11ce <Jf Alismi.Mohamed the emisaary·the appellant sent to call the respondent. 'ThE,re was the evidence of Prisca. Achura the sister o! the respondent whom ·api:ell.ant gave money so that she should give_ them room. And soon after the re&pondent realised tba.t she had been pregnant she named the appellant and a mting of elders was held. The appellant• e ma.J.n complaint is that the me¥oa:I:• evidene· did not .eta.blisb. that he was r,sponsible for respondent• a, preiria.ncy. As it was held in .11be case of Dis\1§ Paul V 9 Cmistina .Lei Supra it dpes not matter even if the ~eapondent was a known prostitute •••• !'/2 • •.••

as-long o..s she has no.med thc_.o.ppela.nt.a.s the man responsible for he :.rregnancy the appellant cannot gt out of it unless he con prove that he nQver :u,d could never have made her pregnoni. ln this he has fo.iled. to disehargo the. JFrdon lid upon fi:i!n•, '.Jticon·cw:-rence•sswith thG two courts below I hold that i, o appellant mo.de resPondont pregnant and is tho putativo fathur of the child •. ~ The trial Court has ordered.thc:dppello.nt to pa.y shs. 500/= per month as· :ntemnce for the child. :Both the trit1l and .first appellate Court found this • • II •.. ·• • ' ., ' . ~ • • • · .. .)unt reasonabla. Ta.king into account thG. .pr'esont economic situation, ... "'.'tainly the o.ppello.nt cannot 09mpla.in that the order of maintena.nee ha.rah. • •· •· ..... h • < •• therefore uphold the .order. I did dismiss this appec.l D.fter hearing the ·parties and the ,~bove 'are t_he reasons I. reserved ~or so dismissing the a.ppca.1·· this morning. . . , ; ~ . . ~ , Dated at Mtwara 27th do.y of November, 1990. Judge. 21. 11 .90. • •,I

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