DANIEL MLINGWA v MWAJA MKOTYO 1997 TLR 39 (HC) A

 DANIEL MLINGWA v MWAJA MKOTYO 1997 TLR 39 (HC) A

Court High Court of Tanzania - Dar es Salaam

Judge Msoffe J

CIVIL APPEAL 57 OF 1996 B

10 January 1997

Flynote

Damages - Adultery - Proof of - Payment of dowry.

-Headnote

The appellant had sued the respondent in the Primary Court at Dodoma for C

adultery, claiming seven head of cattle as compensation. The trial court held that the

respondent had committed adultery with appellant's lawful wife and awarded three

head of cattle as compensation. The District Court on appeal held that there was no

valid marriage between the appellant and PW 2. In a further appeal D

Held:

(i) That there was no serious dispute that there was a valid marriage

contracted under customary rites between the appellant and PW 2;

(ii) That the magistrate who had sat in the first appeal had erred when he

said that payment of a dowry was a necessary prerequisite to validate a marriage.

Non-payment of dowry did not invalidate an otherwise valid marriage. E

Case Information

Appeal allowed and decision of Primary Court restored.

Cases referred to:

1. Lalata Msangawe v Henry Mwamlima [1979] LRT No 3 F

2. Wilson Thomas v Republic [1979] LRT No 26

Nyangarika for the appellant.

Njulumi for the respondent. G

[zJDz]Judgment

Msoffe J:

In the Primary Court at Chipanga, Dodoma, the appellant sued the respondent in a

claim of seven head of cattle being compensation for adultery. The said trial court was

satisfied that there was a valid and subsisting marriage between the appellant and

PW2 Veronica Chakachaka and that the respondent did actually commit H adultery

as evidenced in the fact that he has since been living with PW2 as her husband. In

the circumstances, the said court was of the view that since adultery was proved and

established there was no way the respondent could escape civil liability. It however

held that I

1997 TLR p40

MSOFFE J

A the claim of seven head of cattle was on the high side; and so made an award of

only three head of cattle for compensation of the adultery in issue.

Dissatisfied, the respondent appealed to the District Court at Dodoma where he won.

The District Court made a number of findings and conclusions, but in brief it B was

of the view that there was no valid marriage between the appellant and PW2; and

therefore that the claim would have no legal basis.

This is an appeal against the decision of the District Court. Mr Nyangarika learned

advocate appeared for the appellant. Mr Njulumi learned advocate appeared and

resisted the appeal on behalf of the respondent. Both counsel have filed written C

submissions to which the court is grateful for their useful assistance.

There is no dispute that the case in the two respective lower courts was essentially

decided on the basis of credibility of witnesses. As this court has held D on more

than one occasion, credibility is a question of fact and an appeal court should not

disturb a finding of fact based on credibility unless it is manifestly unreasonable --

Lalata Msangawe v Henry Mwamlima (1) and Wilson Thomas v R (2). The issue is

whether there was any material basis upon which the appellate E District Court

could fault the decision of the trial Primary Court which was based on the credibility

of witnesses as aforesaid.

In the petition of appeal a total number of five grounds have been raised and F

canvassed in submissions made by counsel. However, all of them basically allege that

the decision of the District Court was against the weight of the available evidence. In

the premise, I propose to deal with the appeal generally in determining whether or

not there is any valid complain in the appeal.

In my judgment, the appeal has merit. A look at the case in its entirety will show G

that there is no serious dispute that there is a marriage contracted under customary

rites between the appellant and PW2. All the witnesses (including the respondent)

except perhaps PW4 William Chakachaka were affirmative of this fact. If so, the view

held by the District court that there was no evidence establishing that the said

marriage existed would appear to me to be unsupported by the evidence on record.

H

Perhaps one comment which, I hope, may be of benefit to the learned Resident

Magistrate who sat in the aforesaid first appeal. Somewhere in the judgment he

appeared to be saying that payment of dowry would be a necessary prerequisite to

validate a marriage. A look at the provisions of ss 13, 14, 15, 16 and 17 of The Law of

I

1997 TLR p41

MSOFFE J

Marriage Act No 5 of 1971 will show that this view is not correct as it is nowhere A

mentioned therein that payment of dowry should be necessary in a valid marriage.

Non-payment of dowry would not invalidate an otherwise valid marriage.

Much was said by learned counsel about whether or not there would be a rebuttable

presumption of marriage under s 160 of The Law of Marriage Act 5 of B 1971 in the

circumstances of the case. I need not waste much time on this point which apparently

was not canvassed by anybody in the two respective lower courts. It will therefore be

unfair to deal with it at this stage. However, if one may be excused to say in passing,

the issue shall not arise at all. One says so because it C was not an issue before the

two lower courts as aforesaid; and in any case the issue would not arise in the midst of

evidence by the relevant witnesses that a marriage actually existed between the

appellant and PW2. If so, why should there then be talk or mention about a

presumption. D

The appeal is allowed with costs here and below. The decision of the District Court is

set aside and that of the trial Primary Court is restored. E

1997 TLR p41