REUBEN S. PETER v ATHUMAN NHIGA 1988 TLR 193 (HC)

 

REUBEN S. PETER v ATHUMAN NHIGA 1988 TLR 193 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

20 October, 1988 F

Flynote

Customary Law - Tort - Claim for damages for loss of anticipated bride wealth due to daughter's pregnancy.

Customary Law - Tort - Claim for compensation for expenses incurred on girl's education.

Customary Law - Tort - Assessment of damages or compensation.

Tort - Customary law tort - Claim for damages for loss of anticipated bride wealth due to daughter's pregnancy.

Tort - Customary law tort - Damages - Claim for damages for expenses incurred on girl's education.

Tort - Customary law tort - Damages - Assessment of .

-Headnote

The respondent unsuccessfully sued the appellant, Reuben S. Peter, for 20 head of cattle for loss of anticipated bride wealth, education and other expenses following the respondent's daughter being put in the family way by the appellant while the said girl was under the respondent's care and schooling. On appeal to the District Court, that court held that the respondent was entitled to compensation and granted 20 head of cattle to him as compensation hence the present appeal.

Held: (i) The respondent did suffer damage in that in the event of the girl getting married, she was unlikely to fetch as much bride wealth as she would have fetched were it not for the pregnancy out of wedlock and that Paragraph 89 of the Local Customary C (Declaration) Order, GN No. 279 for 1963 presupposes that the rule as to payment of compensation is meant to set off loss of anticipated bride wealth to a parent;

(ii) it is the duty of every parent to educate his child to the best of his ability and the ability of the child. Such duty, therefore, should not be a subject of compensation;

(iii) the assessment of damages or compensation is within the discretion of the court and in exercising that discretion, the court must pay due regard to the customary practice of the community to which the parties belong as to the average amount of E bride wealth ordinarily payable for women who have had no pregnancy out of wedlock and for those who have had children or pregnancies out of wedlock, and other related payments;

(iv) while it is true that under the Sukuma customary practice, a woman who became pregnant out of wedlock stands a lesser chance of getting married, it would still not be fair to allow full compensation which is equivalent to the would be bride price for a woman who is not pregnant, the reason being that it is also well known that women who have had pregnancy out of wedlock do marry, notwithstanding the less bride wealth they fetch.

Case Information

Appeal Allowed.

Cases referred to.

1. Julius v Denis [1972] HCD 1.

2. Yahaya Abed v Mrisho Hussein [1976] LRT n. 56.

3. Ananiah v Mwaitebele [1972] H.C.D. n.1.

[zJDz]Judgment

Chipeta, J.: In Shinyanga Primary Court at Nindo, the respondent, Athumani Nhiga, unsuccessfully sued the appellant, Reuben S. Peter, for 20 head of cattle for loss of anticipated bride wealth, educational and other expenses following the respondent's daughter being put in the family way by the appellant while the said girl was under the respondent's care and was schooling.

It was conceded in both courts below that the appellant did put the respondent's daughter in the family way. The trial court, however, dismissed the suit holding that the respondent had suffered no damage. On appeal to the District Court, the District Court held that the respondent did suffer damage in that in the event of the girl getting married, she was unlikely to fetch as much bride wealth as she would have fetched were it not for the pregnancy out of wedlock. The first appellant court accordingly granted 20 head of cattle as damages.

With respect, I am inclined to agree with the first appellate court. In principle a parent whose unmarried daughter under his care is made pregnant by some person is entitled to be paid compensation by that other person. This principle, I dare say, springs from the customary practice of payment of bride wealth and other related payments. It is generally recognized that a woman who has a child out of wedlock usually reduces her chance of marrying and, if she does marry, she usually fetches less bride wealth than one who has E had no child or pregnancy out of wedlock.

This court has reiterated that principle on many occasions. (See Yahaya Abedi v Mrisho Hussein) [1967] LRT n. 56; Ananiah v Mwaitebele, [1972] H.C.D. n. 1; and Julius v Denis, [1971] H.C.D. n. 264). This principle, in my view, is in accord with the provisions of Paragraph 89 of the Local Customary law (Declaration) Order, G.N. No. 279 of 1963, which provides for the payment of a fine and compensation to the father by any person who entices suchfather's daughter who is under his care. That Paragraph and the following Paragraphs, it G should be noted, deal with questions of matrimony, the payment of bride wealth and matrimonial assets. That, in my opinion, presupposes that the rule as to payment of compensation is meant to off set loss of anticipated bridewealth by a parent.

In the present case, therefore, the respondent is clearly entitled to compensation in respect of his daughter's pregnancy out of wedlock.

The respondent also claimed compensation or damages for the expenses he has incurred on the girl's education. The first appellate court declined to grant this relief and, in my I view, rightly so. It is the duty of every parent to educate his child to the best of his ability and the ability of the child. Such duty, therefore, ought not to be a subject of A compensation. (see Yahaya's case - supra).

Perhaps the greatest problem which such cases present is the assessment of damages or compensation payable. In Yayaya's case (supra) this court awarded shs. 1,200/=; but in Ananiah's case (supra) this court reduced an award of shs. 600/= to shs. 200/=. I respectfully agree with late Mwakasendo (Acting Judge as he then was) in Ananiah's case that the assessment of such compensation is within the discretion of the court. I wish to add, however, and with respect, that in exercising that discretion the court must C pay due regard to the customary practice of the community to which them parties belong as to the average amount of bride wealth ordinarily payable for women who have had no pregnancy out of wedlock and for those who have had children or pregnancies out of wedlock, and other related payments.

In this regard, it is my view that apart from whatever evidence the parties may adduce on the point for the assistance of the court, court assessor can be of immense help to a trial court. In the instant case, both parties are Wasukuma of Shinyanga where the amount of bride wealth payable ranges between 20 and 40 head of cattle. For his part, the respondent in this case claimed 30 head. His argument or basis for that figure was that he would have received that much as bride wealth if his daughter had married without the pregnancy out of wedlock. With respect, I do not think that that would be fair and just. While it is true that the chances of marrying are less for a woman who has had pregnancy out of wedlock than one who has not, it is also well known that women who have had pregnancies out of wedlock do marry, although they are generally expected to fetch less bride wealth.

It also appears to me, in the present case, that in claiming that amount of compensation, the respondent was influenced by, or took into account, his expenses for his daughter's education. These I have disallowed. Having the foregoing in mind, and doing the best I can on the material available, I award compensation of seven head of cattle.

To the extent of the reduction of the amount of compensation payable, the appeal succeeds but it is otherwise dismissed. The respondent shall have his costs in this court and both courts below.

I Order accordingly.

1988 TLR p197

A