Mpapayu v. Tusiliwa, H.C. (P.C.) Civ. App. 71-DDM-72, 15/11/72.

Mpapayu v. Tusiliwa, H.C. (P.C.) Civ. App. 71-DDM-72, 15/11/72.

            The appellant sued the respondent in order to recover Shs. 460/= as compensation for the pregnancy of his daughter Delphina. The respondent is the step-father of Christian who was responsible for the pregnancy. With consent of the respondent, the court awarded the amount claimed. The District court however in exercise of its revisional jurisdiction ordered the refund of the money by the appellant. On appeal to the High Court.

Held:   (1) A man who had sexual relations with a woman prior to her pregnancy and whom she names as the father of her child is held to be the father under customary law even if the time period between the sexual relations and the birth is too short for the man to be the real father.

           (2) The father of a girl made pregnant may recover compensation only from the man responsible, and not from his father or step-father.

KWIKIMA, AG. J. – The appellant has a daughter, Delphina, who had an affair with the respondent’s step-son, Christian. The latter is a soldier in the Tanzania Peoples Defence Forces. He is currently stationed at Tabora. The appellant sued the respondent in order to recover compensation when Delphina was made pregnant by Christian who, when he was on leave, took her award from her father’s home and went to live with her. The parties to this case are not hostile to each other. Indeed, as the trial magistrate observed, the parties were in complete understanding; so much so that Delphina was allowed to go and stay with the respondent with the full blessings of the appellant. The Shs. 460/= was awarded to the appellant with the consent of the respondent. It was surprising therefore that the Njombe District Court should go out of its way to revise this award and order the appellant to refund the money.

The Njombe District Magistrate was influenced in his decision by the letter from Christian denying that he made Delphina pregnant. Christian did not dispute having sexual relations with Delphina. His argument was that he could not be the father of Delphina’s child because the child was born five months after their meeting. The learned District Magistrate believed Christian, and proceeded to free him of any responsibility for Delphina’s pregnancy. The learned gentleman overlooked the well-established rule of customary law that the person named in such cases must prove that he had had no sexual relations with the woman who named him. In this case Delphina named Christian’s denial was based on his belief that according to him, the interval between their meeting and the birth of the child was too short to make him the father of the child. It should be pointed out that under customary law, Christian had to prove that he had had no sexual relation with Delphina. It was not sufficient to deny paternity for the reason which he gave. The appeal court ought to have held him liable when he failed to deny having sexual relations with Delphina. By admitting that he had had relations with Delphina Christian was more of less admitting paternity under customary law. 

The letter from Christian ought not to have been taken as evidence in rebuttal of the appellant’s allegation. If there was any merit in the letter, then Christian ought to have been called to give evidence so that the appellant could controvert him. The court could also have opportunity to assess his credibility. The District Court did not act legitimately when it interfered with what was a consent settlement. On these considerations the appeal would seem to be justified.

The Declaration of Customary Law allows fathers [to obtain] compensation from those who make their daughters pregnant. There is no provision under which the father of a girl made pregnant may recover compensation from the father of the man responsible for the pregnancy. The person to be sued for any compensation is the man responsible, not his father or step-father as the case may be. In this case the appellant was clearly wrong when he sued Christian. I would for this reason dismiss the appeal with an order that now that Christian’s whereabouts are known, he should be summoned before the Arbitration Board to work out a compromise. Before the said

Board the parents may decide what to do with their children Delphina and Christian. The money Shs. 460/= paid to appellant should not be refunded until solution to the problem is reached. I am optimistic about this case because the parents seem to be on very good terms……