Mbaruka v. Chimonyogoro (PC) 16-D-71; Oct. 1971; Mwakasendo Ag. J.

Mbaruka v. Chimonyogoro (PC) 16-D-71; Oct. 1971; Mwakasendo Ag. J.

The appellant appeals against the decision of the Dodoma District Court disallowing his claim for the payment of eleven head of cattle and nine goats by the respondent, former father in-law, as refund of brideprice on the dissolution of the marriage between the appellant and respondent’s daughter. The married couples were married for over 22 years and had 2 children. Friction in the marriage life began when the appellant took a second wife. The respondent’s daughter then decided to live apart from him and subsequently successfully sued him for maintenance. As a consequence of his default in payment she sued hi for divorce and was granted it. The appellant hen claimed a refund of the brideprice he paid and the respondent immediately gave him 12 head of cattle and 18 goats. The action is for the outstanding balance. He was successful in the primary court but lost in the district court because of the number of years the marriage subsisted, the number of children of the marriage and the number of cattle already paid.

Held: (1) “With respect, the District Magistrate has pinpointed what in my view is the pith and substance of the question at issue. I think it cannot now be argued that the duration of the marriage and the number of children of a marriage are important factors that must be taken into consideration when deciding the issue of return of bride price – vide Nyamu vs. Mahere (1971), H. C. D. 173 and my comments in (PC) Civil Appeal No. 1 of 1971, Musalege s/o Mwakyose vs. Nazareth Mwangalika. In the present case the appellant’s marriage to the respondent’s daughter lasted for at least twenty two years and there were issue of the marriage two of whom are still alive. It is therefore surprising that the appellant seemingly oblivious to all that has happened during the last twenty-two years of marriage, has lodged this unreasonable claim for refund of bride price. I cannot see how anybody in his proper frame of mind could consider supporting such a preposterous claim. For my own part, I do not see how in conscience I could possibly allow him to get a single head of cattle more than he has already got.” (2) “While it is true that there are no hard and fast rules for the guidance of courts in deciding the question or return of bride price, there can be no doubt that one of the determining factors

Is the duration that the marriage, whether a happy one or not, has subsisted. Where a marriage has lasted for a very long time the chances are that the return of bride price will be ordered in inverse proportion to the number of years that the marriage has lasted. The longer the marriage subsists the dimmer will be the prospects for the claimant, whether he is the innocent party or not, succeeding in getting are fund of the bride price that he had paid at the inception of the marriage. The reasons why this should be so are obvious. The original parties to the transaction may have died, or, even if they have not died, their fortunes may have adversely changed in the intervening period, so much so that it may be unconscionable to order any refund of bride price. If these propositions are not acceptable, as they are bound to by the tremulous and conservative part of our people, I cannot see what would stop a grand old man of eighty claiming the return of bride price paid fifty years before when he married his divorced sixty six year old wife. I have deliberately chosen this extreme case to demonstrate the absurdity to which an untrammeled application to customary rules can lead.” (3) “Speaking for myself, I believe that customary rules are like the rainless wild horse which only the expert horseman can mount and control but left to the uninitiated it can do deadly harm. I believe too that it is the duty of the courts at this momentous period of our history to assist the growth and promotion of equitable customary rules. We would be failing totally in this respect if we were to abide without reflection or commonsense, by the unchanging and changeless traditions of the past as if they were priceless medieval relies.” (4) “I have little doubt in my own mind that there could be no justification whatsoever for ordering the respondent to refund to the appellant the remainder of the brideprice. The appellant should in fact  count himself lucky that he got the refund of as many as twelve head of cattle, to which, with respect, id do not think he was entitled. But it is now too late not to heed the old edge – “where ignorance is bliss it is foolish to be wise’”. (5) Appeal dismissed.