CiVIL PROCEDURE,— Jurisdiction — District Court— Suit on contract between non- Muslims for the support of illegitimate child.

CONTRACT—Consideration — Forbearance from bringing suit — Action on promise to .support illegitimate child.

WORDS AND PHRASES — “Maturity” — Contract to support illegitimate child to matirity requires support to age 16.

Defendant was the father of plaintiff’s illegitimate child. Defendant entered into a written agreement with plaintiff to pay £S. 5 monthly for support of the infant until the age of six, and from the age of six to maturity full support for the child. Defendant stopped payment when the child was six and claimed the agreement was unenforceable for lack on consideration.

Held: (i) The District Court has jurisdiction of the subject matter of a claim based on a contract between non-Mohammedans for support of an illegitimate child.

(ii) An agreement of a Greek man with a Greek woman to support their illegitimate child is enforceable.

(iii) A contract to support a child to “maturity” shall be deemed to read until the age of 16.

Advocate: Hussein O Wanni …………..for defendant-applicant.

El Fatih  Awouda, Acting P.J. September 14, 1961 :— This is an ap plication for revision  from the decree of District Judge, Wau, dated January 21, 1961 in his CS-103-1960 in which he ordered applicant to pay respondent £S. 8 monthly by way of contribution towards the maintenance of his illegitimate male child.

Applicant is a Christian Greek and so also is respondent. From an immoral relationship between the parties respondent gave birth to a male child. Applicant entered into a written agreement with respondent where-

by he bound himself to pay £S. 5 monthly to the mother in COflttibU(jo to the maintenance of the child unti the latter attained the age of six, and there after to take full responsibility of bringing up the child. The child attained the age of six early in December, 1959. Applicant kept his promise and used to pay Es. 5 monthly since January 7, 1964, the date of the agreerne He stopped pa when the child attained the age of six and when the mother asked for an increase of the sum. Respondent sued on the written agreement.

Advocate Wanni put forward the following grounds fo revision on behalf of applicant:

1.       That the District Judge had no jurisdiction to entertain the claim because when parties are non-Mohammedan and an element of personal law was involved, “the practice has always been that such cases be dealt with by the High Court.”

2.     That the agreement is void for lack of consideration

3.      That the signature of applicant on the agreement was procured by duress and undue influence

4.     That respondent did not understand the contents of the agreement before signing it.

5.       That the agreement did not proرide for continuation of payment off £ S. 5, nor for its increase.

I shall deal briefly with each point.

(1) The claim is based on a simple written contract. Ergo   it is within the jutisdiction of the District Judge to hear and determine the claim. The fact that the parties thereto are non mohameddans  does not give it a particular value to debar the District Court from entertaining the claim.

(2) Ihe father of an illegitimate child is under no obligation to provide for the child in the absence of an affiliation order. But he may make a binding contract with the mother to Contribute towards its maintanance 3 Halsbury, Laws of England, 108 (3rd ed. 1953)

(3) The question of duress and undue influence was not raised before the District Court, and therefore I shall not discuss it here

(4) By the evidence of two Greek merchants the agreement was read over and explained before it was signed by applicant. He is therefore bound by his signature.

(5) do not think that the trial Court went beyond the provisions of the agreement when it ordered applicant to pay £S. 8 after the child attained  the age of six. The agreement provided that after the said age appIicant should take full responsibility of maintaining the child. The order that he should pay £S. 8 monthly until the child attains maturity looks to be a modest one

            Until the child attains maturity,” which appears in the decree, looks to be rather vague. I venture to borrow the age limit during

which a father of an illegitimate child should continue to contribute towards maintenance of the child from the National Assistance Act 1948 (England) and apply it to this case. The age limit therein is 16.

The decree of the District Judge should be amended accordingly.

Application  is summarily dismissed.

Editors’ Note: Advocate for defendant stated: “The learned District Judge said the promise made by respondent was for valuable consideration It is true that under English law, ‘A promise by the father of an illegitimate  child that, in consideration that the mother would abstain from affiliation proceedings, he would pay her a certain sum for its maintenance, is founded on a sufficient consideration.” I Chitty, Contracts 50 (21st ed. 1955). But there is no Bastardy Act in the Sudan and no provisions in the Laws of Sudan for affiliation proceedings; foreign enactments cannot be followed in the Sudan.”

But see Heirs of imam Ibrahim v. El Amin Abdel Rahman, AC-REV- 53-1963, (1962) S.L.J.R. 228,234 (Babiker Awadalla, J.): “Once the Court is satisfied that there is such hardship, then it should not in my view be dissuaded from its duty in applying the principles of the Civil Justice Ordinance, s. 9 by the simple fact that a similar situation was in England remedied by a statutory provision. What we apply in the Sudan is not the English statutory .provision itself but the general principles of justice which prompted the legislature in England to cater to the situation.”

“          The test [as to whether forbearing to sue is consideration] is not whether the claim given up is good in law, but whether it is a honafide claim.” Sutton and Shannon, Contracts 65 (6th ed. 1963). See also, 1 Williston, Contracts s. 135 (Resised ed. Williston and Thompson 1936); 17 C.J.S. Contract s. 104 (2); Cheshire and Fifoot, Contract 70-71 (5th ed. 1961). “There need not be any express promise to forbear.” 1 Chitty, Contracts  61(22nd ed. 1961)

In Yanni Krithary v. Miriam Bint Basta, HC-APP-9-1918 (RH. Dun, C.J.), an Abyssinian woman sued a Greek man for maintenance of their three illegitimate children. The Court stated in relevant part:

“For the appeal it is argued that the courts of the Sudan have no jurisdiction as the question is one affecting the personal status of the appellant. The appellant is a Greek and it is said that by Greek law such questions can only be determined by a Greek Court according to Greek law.

“          It is also stated that Greek law, like the French law, prohibits any action to prove the paternity of an illegitimate child. I do not think this is a sufficient reason, first because to allow it would generally mean an absolute denial of any recourse to a Court of Justice in such cases, the nearest Greek Court being in Cairo and the class of respondent much too poor to seek a remedy so far away, but chiefly because I am unable to see how the decree in this case affects the respondent’s status.

It appears from 4 Phillimore, international Law, s.DXXXIII that the French Courts would not permit such an action even in the case of two foreigners of the same nation whose national law permitted such an action, because it is contrary to the law of French Court Administer, and in England it would be no defence to an application under the Bastardy Acts that the national law of the parties prohibited such an action, and I therefore conclude that such matters  are not governed by the personal law of the parties but by the local law or lex fori.

“          It remains therefore to consider whether the law of the Sudan allows such an application.

There is no Ordinance or Proclamation dealing with the case, and it must therefore be decided on the principles of justice, equity and good conscience.

Against the decree we have on the one side the Roman Civil Law and practically the whole of modern European Law and the Muslim law: in favour we find on the other side the Dutch Law, English and Scottish Law, the law of most states of the U.S.A. and the greater part of the British Empire including some parts which were once French, Swiss Law ‘under the law of certain  Hindu castes.

            There is therefore not any general consensus of opinion amongst the legislators of the world in favour of one view rather than the other.

            I know of no other previous decisions in the Courts of this Country to guide me.

            I feel impelled by two considerations to decide in favour of the decree: one is that it seems to me to be contrary to justice that a man may take a woman as his mistress and when he gets tired of her cast her, and the children she has borne him adrift, the other is that a principle which is accepted over the greater part of the British Empire with Its very varying Conditions of life seems to me to be a Suitable one to follow in the Sudan.

I wish to add a word about Muslim Law.

The facilities which,. Muslims enjoy as regarus marriage and divorce and the facilities which Muslim law contemplates as regards concubinage with slaves makes cases such as these so rare as to be negligible; the free concubine or mistress as distinguished  from the slave concubine on the one hand or the professional prostitute on the other hand may almost be said to be non-existent among Muslims.

See Civil Justice Ordinance 1929, S.5(a)  Greek Civil Code (1936; (translated by Advocate Elias Kesses) states:

Article 1533: “Voluntary recognition  by the father or the paternal grand father is made by declaration before a notary public or by will.”

Article 1537: ‘The child born out of wedlock as a result of voluntary recognition takes the surname of the father, and provided the law does not provide otherwise, he has the right and obligations of a true child.”

Article 1540: “The mother of a child born out of wedlock is entitled to demand by civil action the recognition of paternity. The child has also the same right. The action is raised against the father or his heirs if he has died before the birth or after it.”

Article 1541: “If it is proved that during the critical period of the conception the defendant has had carnal intercourse with the mother, his paternity is presumed.”

Article 1544: “The actiou for recognition of paternity raised either by the child or the mother is cancelled for lapse of time after the passing of five years from birth.”

Article 1545: “The judicially recognized child is entitled to demand from the father maintenance compatible with the social position of the mother and the financial situation of the father

Article 1555: “Judicial Recognition of paternity if the action is raised during the lifetime of the father has all the results of voluntary rccogniton. (I) if the conception of the child took place after betrothal with the mother or the rape or abduction or seduction of the mother in accordance with the penal law, (2) if the father during the conception was the guardian of the mother or had her under his care or dependency or lived together with her.”

On the question of whether a paternity action concerns “family relations” Toussis, Family Law in Accordance with the Greek Civil Law (in Greek) 599 n. 1 (2nd ed. 1957) states: “The action does not aim at the creation of a family relationship. The decision does not create the relationship of father and child. But it simply gives the right to certain proprietary grants. Though the action for recognition is one pertaining to family law, nevertheless it has an internal contradiction since by the recognition of the paternity no relationship is created ‘with the unmarried father.’