Q&A – 10 October 2022

Determination of legitimate father

A Court last year declared my marriage with my ex-wife to have irreparably broken down and as a result ordered divorce. My ex-wife who remained unmarried recently gave birth to a baby-boy whom I suspect to be mine. Nevertheless, my ex-wife is insisting that I am not the legitimate father of the boy as she claims to be impregnated by another man. I want to file a petition for the Court to declare me a legitimate father. What evidence do I need to give in order to succeed in my petition?
SR, Dodoma

The law provides that any person who is born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, there is a rebuttable presumption that such person is a legitimate son or daughter of the ex-husband.

Given the fact that your marriage was dissolved last year, and she remained unmarried, there is a possibility that you could be the legitimate father of that baby-boy if the period between the divorce and birth of the child is 280 days. The Court will require you to prove that you had a valid marriage with your ex-wife and that you are within the 280 days above. The Court might also order the undertaking of genetic tests to corroborate your evidence.

Road authority orders fence height reduced

My house is facing the highway and the Road Authority has issued a notice requiring me to shorten the height of my fence. I fail to understand why this rule and what the height has to do with the road authority. Is the Authority justified to give such a notice and order?
SG, Mbogwe

Section 43(1) (a) of the Roads Act, 2007 (the Act), empowers the Road Authority, where it is satisfied that it is necessary to impose restrictions with respect to any land at or near any corner or bend in a road for prevention of danger arising from obstruction to the view of persons using the road, may serve notice upon the owner or occupier of the land directing him to alter the height or character of any wall which is not part of a wall of a permanent structure, a fence or hedge thereon so as to cause it to conform with any requirements specified in the notice.

You haven’t disclosed that fact in your question, but we suspect that your house is not only facing the highway but it is also near a bend or corner. If that is the case, it seems your fence might be too high such that it obstructs views of drivers and other persons using the highway. If that is the case then the road authority is justified to give such a notice and order.

Injured while rescuing children from pond

My neighbor has got a big fish pond which alludes to many children as it is not confined in a compound. One day when I was passing by, I saw two children in danger of drowning and as a good citizen, I jumped in the pond to rescue the duo. In the course of rescuing the children, I got injured. Considering my financial position, I politely asked my neighbor to cover at least the costs of medication but he refused on the pretext that I willingly injured myself as I was not invited to rescue the children. Can I sue this neighbour of mine? Please guide.   
ST, Kibaha

Your neighbor wants to seek refuge in the doctrine of volenti non-fit injuria meaning“to a willing person, no injury is done It is a general defence in tortious suits for a defendant to claim that if a person willingly consents to the infliction of harm upon them is not entitled to get any remedy. It goes that any harm suffered voluntarily by anyone does not amount to legal injury and the same is not actionable under the law of torts. While aware of that doctrine, there is a chance that this doctrine may not apply in your scenario and your neighbor could be held liable for your injury.

The rescue case is one of the exceptions to the applicability of the doctrine of volenti non-fit injuria. Under this exception, when the plaintiff willingly faces a risk to rescue someone from the danger which has been created by the wrongful acts of the defendant, then the defendant cannot take the defense of volenti non-fit injuria. In your case, you volunteered to rescue the drowning children at the instance of your negligent neighbor who failed to put measures to prevent children getting into danger despite having such duty of care. It is likelier than not that your neighbor is liable for your injury and as such there is a high possibility of succeeding in your claim against your neighbor.

Request to be buried in private plot

My father bought a plot not very far from the centre of the city of Dar es Salaam. He has started construction of a house but he also wants to be buried there. Is that allowed? Please advice.
KD, Dodoma

We are not aware of any law which imposes a legal obligation to bury a person in a public cemetery or prohibits burial in one’s own plot. The issue of place of burying may be subject to one’s decision and/or his family members’ decision. It is not an offence for one to be buried in their plot as long as burial permits are obtained from authorities before such burial. Our opinion is that the burial of your father will not amount to a change of use of the land. The plot will still be used for residential purposes despite the presence of a grave. The grave might reduce the value of the plot as many people are not very receptive to living near graves. It would be wise to advise your father to be buried in a public cemetery as it is more convenient in the future. However, different people have different beliefs and we must learn to respect them. Meanwhile we hope and pray that your father lives as long as he can!