Kazimoto, J.: The respondent sued the appellant for custody of a child in the Primary A Court. He lost the suit with costs. He appealed to the District Court which allowed his appeal. The appellant was aggrieved and she has appealed to this court. The appeal was heard on 2/6/88. The appellant appeared in person, the respondent indicated that he did B not wish to be heard on appeal. I proceeded with the hearing.
According to the evidence on record which the trial court accepted the appellant and the respondent were friends and during their friendship the appellant got pregnant and a C child, now in dispute, was born. This was on 11/11/83. It appears from the evidence that they lived together. The respondent stated that they intended to marry each other but the appellant had changed her mind. Hence the claim over the child.
The Primary Court applied the Law of Persons in dismissing the respondent's claim D stating that the respondent did not follow the customary rules as embodied in Government Notice No. 279 of 1963. The first appellate court held that the respondent had complied with section 181 of the Law of Persons and that the father of the appellant had refused to accept Shs. 300/= paid by the respondent. He also based his decision on E section 160 of the Law of Marriage Act 1971. The appellant's appeal to this court mainly centres on section 181 of the Law of Persons. She has argued in effect that the purported payment by the respondent has no legal effect as the payment was made on 23/7/85 after the child had ceased weaning. F
It is quite clear from the evidence on record that the appellant and the respondent are not married. There is evidence that the appellant and the respondent were friends. The District Court and the trial court found that the appellant and the respondent lived under circumstances that there was a presumption of marriage under section 160 of the Law of G Marriage Act. The appellant has strongly denied this. I am satisfied that she has been lying. There is evidence which established that the appellant had cohabited with the respondent under assumption that they were married. The child in dispute was born when the appellant and respondent were living together. H
In his judgment the learned resident magistrate who heard the appeal stated that as the child was born under the circumstances described above then he invoked section 160 of the Law of Marriage Act to the effect that the child belongs to the respondent. The issue is whether the learned resident magistrate is right in his conclusion. I have no doubt in my I mind that he has erred. The child in question
is an illegitimate child. Section 160 of the Law of Marriage Act does not deal with status A of children. It deals with maintenance. It enables a woman and her children born during such cohabitation to apply for maintenance when such marriage has been rebutted. In no way does the Law of Marriage Act deal with the status of illegitimate children. B
In Richard Mapesa v Rashid Bwana [1978] LRT n.4 the appellant sued the respondent for a declaration that the children born to his wife while living with the respondent were his and an order that they should be in his custody. In that case the wife with whom the respondent lived and with whom he had children was legally married to C the appellant. The wife deserted the appellant and went to cohabit with the respondent who fathered the children. The marriage between the appellant and his wife had not been dissolved. In dealing with the status of these children the High Court held: D
The evidence before the trial court therefore conclusively proved that the children were fathered by the respondent. The respondent in fact did not dispute this. Since it was established that the children were fathered by the respondent, the legal presumption of legitimacy of children E born in wedlock was thereby rebutted. This means that the two children are illegitimate. Since the Law of Marriage Act 1971 makes no provisions for the status of illegimate children, the court has to resort to the Customary Law of the parties to resolve the issue as to whom the children belong. F
In view of the above decision with which I agree I hold that the child being illegimate the learned resident magistrate erred in declaring it as the respondent's child under the Law G of Marriage Act 1971.
In her memorandum of appeal the appellant attacked the decision of the learned resident magistrate in holding that under customary law the respondent is entitled to the custody of the child. In his judgment the learned resident magistrate said this: H
Section 181 of the Law of Person G.N. 279/63 state that when such children are born during the said type of marriage then in order to legitimise a child must (sic) pay Sh. 100/= to the father of the girl and that that should be done before the child has left breasts (about two years I since birth).
He went on to note that the respondent tried without success to pay Shs. 300/= to the A appellant's father who refused to accept the money. There was evidence that appellant's father refused to accept the money. He went on to hold that the refusal by appellant's father to accept the money was immaterial. The appellant had contended that the payment was ineffectual in law as the respondent paid the money after the child had B weaned.
Section 181 of the Law of Persons G.N. 279/63 provides:
181 A. A father has the right to legitimize his illegitimate children at any time by marrying their mother. C
B. If a man wishes to legitimize his child without marying its mother he can do so before the child is weaned by paying Shs. 100/= to the girl's father.
Clearly the respondent could legitimize his child by marrying the appellant or by paying D Shs. 100/= to the father of the appellant. The appellant does not want to be married to the respondent. The respondent could have legitimated the child by paying to appellant's father Shs. 100/=. The issue is whether the respondent paid the money before the child E had been weaned. No direct evidence has been led on this. The learned resident magistrate stated in his judgment that a child stops breast feeding about two years. That could be his own personal experiment but there is no evidence on record to support this F finding. In absence of any evidence I am not prepared to agree that a child stops breast feeding in about two years. There is however evidence that the child was born on 12/11/83. The respondent wrote a letter to the appellant's father on 23/7/85 declaring himself that he is the father of the child the appellant gave birth to. The appellant's father G rejected the respondent's overtures on 28/7/85. In her submission before me the appellant stated that by the time the respondent attempted to pay the money to her father the child had stopped weaning. She also stated that by then the matter had been referred to the Welfare department. If respondent paid the money after the child had weaned the H payment was ineffectual as paragraph B of section 181 of the Law of Persons has not been complied with. In my judgment I hold that the learned resident magistrate errred in holding that the respondent had legitimated the child in accordance with section 181 of the Law of Persons.
There is one aspect which I have noted that escaped the attention of the learned resident I magistrate. In her evidence the
appellant stated that the man who made her pregnant is not the appellant. She testified A that she had a number of men who had amorous association with her. She therefore denied that the respondent is the father of the child. Her evidence ran like this:
Huyu mdai namfahamu kama ni mfanyakazi mwenzangu tumefanya kazi pamoja. Katika B madai hayo huyu mtoto wangu nimezaa na wanaume wengine. Mwanaume niliyezaa naye namjua mimi siyo yeye.
Sections 183 and 184 clearly gives the final decision to a woman to nominate the man C who made her pregnant even if she falsely accuses a man of making her pregnant. Her word carries the day and the man has the ardous duty to discharge the allegation. As the appellant has named another man as the father of the child the respondent has to prove, and such proof is lacking in this case, that he is the man and only man who made the D appellant pregnant. The learned resident magistrate did not direct himself to these provisions and had he done so he would not have come to the conclusion he did.
As a result and for the reasons I have stated the judgment of the District Court which cannot be upheld is set aside and I allow the appeal with costs and uphold the judgment E of the trial court.
Appeal allowed.
F
