GENEROZA NDIMBO v BLASIDUS YOHANES KAPESI 1988 TLR 73 (HC)

 

GENEROZA NDIMBO v BLASIDUS YOHANES KAPESI 1988 TLR 73 (HC)

Court High Court of Tanzania - Mtwara

Judge Kazimoto J

10th June, 1988 H

Flynote

Family Law - Gifts given in contemplation of marriage which fails to take place -

Whether can be claimed - S. 71 of the Law of Marriage Act, 1971 - Proof of the

intention of the gifts I necessary.

Evidence - Witnesses - Whether court may call witnesses.

1988 TLR p74

KAZIMOTO J

-Headnote

The respondent successfully sued the appellant in Primary Court for breach of

promise A to marry and the return of gifts allegedly given to her in contemplation of

marriage. She appealed to the District Court but lost with costs. In the court of first

instance, the respondent claimed six bags of beans, ten bags of maize one sponge

mattress, a bamboo B basket, a sieve and several other things. The parties cohabited

in concubinage from 1984 to 1986. Aggrieved by decisions of lower courts the

appellant has appealed to this court.

Held: (i) A suit may be brought for the return of any gift made in contemplation of

marriage which has not been contracted; C

(ii) the respondent must prove to have given the gifts to the appellant on the

condition that the parties intended to marry;

(iii) it is the duty of the parties to a suit to prove their claim. The Court can

only summon witnesses if asked by the parties to do so. D

Case Information

Appeal allowed.

No case referred to. E

[zJDz]Judgment

Kazimoto, J.: The repondent successfully sued the appellant in the Primary Court for

breach of promise to marry and the return of gifts he allegedly gave her in

contemplation of marriage. Her appeal to the District Court was dismissed with costs.

She is now appealing to this Court. F

In the Primary Court the respondent claimed six bags of beans, ten bags of maize, one

sponge mattress, a bamboo basket, a sieve and a number of other things. It was also

stated that the respondent took a goat to the appellant's father. According to the G

respondent's evidence they cohabited in concubinage from 1984 to 1986. The

appellant had vehemently denied this. I think she is lying. There is evidence to

support the finding of the Courts below that the appellant and the respondent had

been cohabiting in concubinage for the period in question. The issue is whether the

Courts below were right H in deciding that what the respondent claimed were gifts

given in contemplation of a marriage which failed to take place.

Section 71 of the Law of Marriage Act 1971 provides:

A suit may be brought for the return of any gift made in contemplation of a

marriage which has I not been contracted,

1988 TLR p75

KAZIMOTO J

where the court is satisfied that it was made with the intention on the part of

the giver that it A should be conditional on the marriage being contracted but not

otherwise.

The respondent had to prove that he gave the gifts to the appellant and the Court

must B be satisfied that the gifts were made on the condition that the parties

intended to marry.

In his evidence at the trial the respondent stated that he had been living in

concubinage with the appellant from 1984 to 1986. He stated in his evidence that in

1986 their relationship with appellant began to become icy. He referred the matter to

a conciliation C board. He also stated that before the matter was reconciled the

appellant's mother went to harvest beans they cultivated in the shamba. He testified

that they cultivated together for two years and then he went on to give the number of

bags they got and the D value thereof. It is therefore clear from the evidence on

record that these were not gifts. These were what they earned through their joint

efforts. He is trying to apply for division of what they had earned together. There was

no evidence before the trial court that the respondent gave gifts to the appellant with

an intention that the respondent would marry the appellant. I hold therefore that

what the appellant and respondent harvested E from the shamba during the two

years of their cohabitation was not a gift and the respondent is not entitled to have it

returned. That disposes of ground one and two of appeal. F

In ground three the appellant contended that the trial court and the first appellate

court failed to call the appellant's brother as a witness. It is the duty of each party to

prove his claim in Civil Case. The court can only summon witnesses if the court is

asked to do so. The appellant called four witnesses. She was not prevented to call her

brother Nathaniel G Januari Ndimbo if she thought that his evidence would be

material to the case. That failure could not be blamed on the Courts. That ground has

no merit.

As the main grounds of appeal have succeeded the judgments of the trial court and

the District Court cannot be upheld. They are set aside. The appeal is allowed with

costs. H

Appeal allowed.

1988 TLR p76

A