MAKUPILA CHALO v MNINDA MDAMA 1995 TLR 120 (HC)

 

MAKUPILA CHALO v MNINDA MDAMA 1995 TLR 120 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J F

(PC) (Civil Appeal 126 of 1993)

February 22, 1995

Flynote

G Customary Law - Brideprice - Refund of - Principles governing refund -

Customary Law Declaration Order GN No 279 of 1963.

-Headnote

This case concerned refund of brideprice. On appeal the High Court restated the

guidelines for deciding on the quantum of refund of brideprice. H

Held:

(i) The Customary Law Declaration Order GN No 279 of 1963 paras 52, 53,

54 and 55 contain principles which provide for guidelines for deciding on the

quantum of refund of brideprice;

(ii) Since the marriage subsisted for about 10 years and was blessed with 5

children, though two of them have died, refundable brideprice could I

1995 TLR p121

MWALUSANYA J

have been considerably reduced; A

(ii) The Trial Court should have somewhat increased the refundable

brideprice because the wife was the guilty party responsible for the divorce.

Case Infomation

Appealed allowed in part.

No case referred to. B

Mbezi for the appellant

[zJDz]Judgment

Mwalusanya, J:

The respondent Mninda s/o Mdama successfully sued the appellant Makupila s/o C

Chalo at Hager Primary Court in Mpwapwa District in a claim of refund of brideprice.

The respondent was awarded all the brideprice that he paid on marrying the

appellant's daughter and there were 10 head of cattle, five goats and cash Shs 556/=.

The appellant's first appeal to Mpwapwa District court was unsuccessful and hence

this appeal. D

Both court's below erred in failing to adhere to principles regarding refund of

brideprice. These principles are contained in para 52, 53, 54 and 55 of the Customary

Law Declaration GN: No 279 of 1963. These principle provide that: E

1. If children have been born, even if some have died, the brideprice to be

refunded should be reduced or not paid at all.

2. If the marriage has subsisted for a considerable period, the refundable

brideprice should be reduced or not paid at all.

3. If the wife is the guilty party responsible for the divence, the refundable F

brideprice should be substantial, but if the guilty party is the husband, the refundable

brideprice should be considerably reduced.

These are the guidelines for a case concerning refund of brideprice. The trial court G

did not mention these principles at all. The District Court quoted para 58 which is a

wrong section, because that section does not concern the exercise of the discretion by

the court in assessing the refundable brideprice. The correct section or para is 53

which says that the court has the power to increase or reduce the refundable

brideprice depending who is guilty party, the husband or the wife. H

At the District Court and at this court counsel for the appellant Mr Mbezi submitted

that the marriage subsisted for about ten years and that the marriage was blessed with

five children though two have died. The respondent does not appear on record as the

Dis- I

1995 TLR p122

MWALUSANYA J

A trict Court to have had challenged that submission. That being the case the

refundable brideprice should have been considerably reduced. At the same time the

trial court should have somewhat increased the refundable brideprice because the

wife was the guilty party responsible for the divorce.

B Taking all the circumstances mentioned above into account, I assess the

refundable brideprice at 5 head of cattle, 2 goats and Shs 250/=. That appears a fair

amount in the circumstances of this case.

In that the appeal is partly allowed to the extent indicated above, each party will bear

its own costs of this appeal. Order accordingly. C

1995 TLR p122

D