ANDREA CHILENA v KENI MASAKA 1992 TLR 346 (HC)

 ANDREA CHILENA v KENI MASAKA 1992 TLR 346 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

26 November, 1992 F

Flynote

Customary law - Brideprice - Refund of - Principles.

-Headnote

The appellant's marriage with his wife lasted for three years. Then the parties

divorced. G By then they had no child of the marriage. The appellant sought to

recover 9 head of cattle and Shs. 3000/= he had paid as brideprice. The respondent

resisted refunding the bride price on the ground that the appellant was responsible for

the breakdown of the marriage.

The appellate court considered the principles governing refund of brideprice. H

Held: Under para 52A and B of the Declaration of Customary Law (Law of Persons)

G.N. 279 of 1963 if there are many children to the marriage and the marriage has I

subsisted for a long time, no brideprice is refundable;

1992 TLR p347

MWALUSANYA J

(ii) even though the appellant was the guilty party responsible for the

breakdown A of the marriage, since there were no children to the marriage and the

marriage lasted for a very short period (about three years) the appellant should have a

partial refund of brideprice.

Case Information

Appeal allowed in part. B

Mr. Mpoki for the appellant

[zJDz]Judgment

Mwalusanya, J: The appellant Andrea s/o Chilewa lost in the suit he filed at the

Dodoma Urban Primary Court in which he claimed a refund of brideprice of 9 head

C of cattle and shs.3,000/= from the respondent Keni s/o Masaka. The trial court held

that the appellant had paid 6 head of cattle and shs. 3,000/= only as brideprice on the

ground that the appellant was the guilty party responsible for the break down of the

marriage. Appellant made his first appeal to Dodoma District Court and he again lost

D and hence this second appeal. Appellant was represented at the hearing of the

appeal by an advocate Mr. Mpoki.

The first point taken by the appellant's counsel Mr. Mpoki was that the first appellate

court misdirect itself on not considering the likelihood of bias by the same magistrate

E trying the case which he had earlier on tried and determined against the appellant.

What happened was that in the divorce suit, the trial magistrate had granted divorce

and then proceeded to order in the same case file that appellant was not entitled to a

refund of F brideprice because he was the guilty party responsible for the breakdown

of marriage. On appeal the learned District Magistrate quashed that part of the

proceedings which denied the appellant the right to refund of brideprice on the

ground that the question of refund of brideprice has to be adjudicated in a separate

suit and not in the divorce suit. G And so a retrial was ordered for the question of

refund of brideprice.

In my judgment I find that the question of bias could not arise because the

irregularity that was committed in the first place was simply because the trial

magistrate had combined two suits in one - the divorce suit and the suit for the

refund of brideprice. H All what the learned District Magistrate had ordered was

that they should be two separate suits. There was nothing wrong for the trial

magistrate and his assessors to give the same views that they had given in the first

suit. In fact the trial court would have been guilty of inconsistency if they had come

to a different conclusion in the second suit for I the same set of facts. On my part I

view them as

1992 TLR p348

MWALUSANYA J

principled adjudicators who do not decide a case according to the whims of the hour.

A

Now what amount of brideprice had been paid by the appellant? The appellant had

two witnesses namely Zubeti s/o Ismail (PW.2), and Charles s/o Chilewa (PW.3) who

supported him that he had paid 9 heads of cattle and cash shs. 3,000/=. On the other

B hand respondent had two witnesses to support him namely the ten cell leader

Paulo s/o Chipagala (DW.2) and the appellant's ex-wife Mwajuma d/o Masaka

(DW.3). Those said appellant had paid only six heads of cattle and cash shs. 3,000/=. It

will be seen that the matter depended on the assessment of the credibility of the

witnesses. As the C trial court had the opportunity to assess the demeanour of the

witnesses in the witness-box, it will be wrong for this court to disturb the finding of

the trial court. Like the District Court I find that only six heads of cattle and cash shs.

3,000/= had been paid as brideprice. D

The final question is, is the appellant entitled to a refund of the whole or any part of

the brideprice? Counsel for the appellant Mr. Mpoki has submitted that both courts

below were wrong to think that the sole consideration for ordering a refund or not,

was the question as to who was the guilty party responsible for the break-down of

marriage. E He said that the question of whether to order a refund or not was

discretionary, among other matters to consider are the presence of children in the

marriage and the duration of the marriage. On my part I find that Mr. Mpoki is right

and the case of Murange s/o Mahende v Maricha s/o Malosi [1981] T.L.R. 295 supports

him. F

Under para 52A and B of the Declaration of Customary Law (Law of Persons) G.N.

279/1963, if there are any children to the marriage and the marriage has subsited for a

long time, no brideprice is refundable. Then comes para 54 which provides: G

It is the court's discretion to vary the provisions contained in para 52A and B

and to assess the amount of brideprice which should be returned, and the degree of

guilt is the determining factor. H

In the case at hand, there were no children to the marriage, and the marriage lasted

for a very short period, about three years only. That being the case, even though the

appellant was the guilty party responsible for the break down of marriage, at least the

appellant I should have got a partial refund of brideprice. Both courts below

1992 TLR p349

did not exercise their discretion judicially. In the circumstances of this case at least

the A appellant should have been refunded two heads of cattle only. I so hold.

In the event, the appeal is partly allowed. I order that the appellant be refunded two

head of cattle only. Each party to bear its own costs. B

Order accordingly.

1992 TLR p349

C